The primary goal of this essay is to examine the constitutionality of adultery

legislation under Section 497 of the Indian Penal Code, 1860 in a comparative context.
Adultery shows a conflict between social pressure and individual struggle for happiness.
Adulterers have always suffered from society's disapproving attitude towards them. Before
December 2017, adultery in India was regarded as a crime.

The research paper's initial section addresses the basics of adultery legislation as it is
described in the Indian Penal Code. The second section provides information on the
development of the law against adultery. The third chapter describes the argument over
whether Section 497 of the IPC is constitutionally acceptable by citing a number of
significant judicial rulings. Later on, the legal development is examined, and to help clarify
the idea, a brief discussion of some landmark cases like Sowmithri Vishnu Vs. Union of
India, V. Revathi vs. Union of India and Joseph Shine v. Union of India case is mentioned.
One of the most significant sections, Part four of the research project, compares the adultery
laws of various eras and legal systems around the world, including the US, UK, India, and
others. The research study ends with two short paragraphs that help the reader understand the
whole thing.
 1. SECTION 497, INDIAN PENAL CODE: THE ARCHAIC LAW

In accordance with Section 497 of the Indian Penal Code, 1860, adultery is not a crime in
India (IPC). In most cases, adultery refers to a consensual sexual connection between a
married person and a person of a different sex who is not the married person's spouse.
However, the other person does not necessarily need to be married. 1 Women are not subject
to the law of adultery; the only guy who commits the crime is one who engages in sexual
activity with another man's wife without his permission. Adultery requires certain elements
before it is considered a crime, some of the elements are listed below:
1. Sexual Intercourse:
An essential element of the offence is a guy having sex with a married lady. While
actual evidence of sexual conduct is required to prove adultery, it is rarely available. The
story about seeing infidelity via a keyhole is untrue and merely a fabrication. From the
known facts and pertinent situations, it must be determined. To be able to determine that
sexual activity has occurred, the conditions must be of a certain kind.

2. Married Woman:
To prove that a marriage is genuine, there must be strong proof. Adultery is not
defined in the Indian Penal Code as having intercourse with a prostitute, an unmarried
woman, or a widow. In one instance, having intercourse with a woman who is the mother
of his children but has never been married to another man is not seen as adultery since she
is not "another's wife."2

3. Knowledge:
Man must be aware that the woman in question is the "wife of another man" in order
to be covered by this clause. Such a "cause to believe" may stem from the fact that a
Hindu woman's wearing of a Mangal sutra, putting Kumkum in her hair parts, wearing
bracelets and toe rings, among other external signs of marital life, are examples.

1
Samraj Nadar v Abraham Nadachi, AIR 1970 Mad. 434, 437.
2
Munir, (1925) 24 ALJR 155
 2. CONSTITUTIONAL VALIDITY OF THE ADULTERY LAW

The Constitution's legitimacy has also been contested frequently. The Supreme Court
noted that Section 497 of the IPC does not allow for the husband to accuse the wife of
adultery while upholding its constitutionality. The clause is quite clear that even if the wife
assists and abets, she is not subject to punishment. Therefore, it is not a grievance that the
clause forbids the woman from bringing an adultery case against the husband. The legislature
sees adultery, as it is defined in section 497, as a male-committed offence against the
integrity of the marital household.
Responding to the defense's claim that women, both married and unattached, have
altered their lives throughout time and, in some circumstances, have disrupted the peace and
tranquilly of other marital homes. The criminal code forbids bigamy (Sec 494 IPC). Given
that Hindu women continue to face social discrimination in a society that is predominately
male and that child marriages and polygamous weddings continue to occur in remote rural
areas either because of a lack of knowledge of the law or because of long-standing social
customs. There has been substantial argument in favour of the Supreme Court's judgement
that maybe the time is not yet appropriate to punish women for adultery and that the woman
who is seduced is truly the victim and not the offender of the crime.

Supreme Court’s Discussion on the Constitutional Validity of Adultery Law:

The Supreme Court determined that this Penal Code clause was not discriminatory
because neither the husband nor the wife could bring a lawsuit against the other. The
"outsider" who breached the sanctity of the marriage household while the outsider was a man
is the only one who is guilty of the offence. As a result, it appears that adultery has a very
narrow legal definition. It was thought that this was an instance of reverse discrimination in
favor of women rather than against them because a woman who violated the marriage home
in the same way but was an "outsider" could not be prosecuted. However, the criminal code
does not explain the rationale behind this reverse discrimination. Does it indicate that a
female paramour may get away with undermining the marriage home's sanctity but a male
cannot? Is this discrimination in reverse acceptable? Why does S. 497 IPC fail to recognize
that adultery can be committed by a female when it describes it as a crime against the sanctity
of the marriage home?
This unfairness has drawn criticism. The time is right to explore whether the crime of
adultery is consistent with how we currently view women's place in marriage. The Indian
Penal Code's definition of adultery allows the husband to bring charges against his wife's
paramour without conferring an equivalent right on the woman to bring charges against the
husband if he engages in extramarital affairs or the right to bring charges against his
paramour. It makes sense that the crime of adultery was contested as a violation of article 14
because it treated men and women differently.
 Even if we accept the claim that the law is impartial in that neither the husband nor
the wife may bring a civil lawsuit against the other for the criminal offence of adultery. Why
is the wife not given the same ability to sue the female paramour but only the disgruntled
husband is allowed to do so for violating the sanctity of the marriage home? Isn't it
discriminatory to deny a woman her fundamental rights under the law? As many have argued,
the law discriminates not only against married women (wives), but also against men
(paramour). Equal legal standing should exist between the wife and the woman who seduces
the husband.
The National Commission for Women (NCW) recently rejected suggestions to alter
Section 497 to allow for the prosecution of women who commit adultery. It has made a
significant recommendation that adultery be considered a civil wrong rather than a criminal
offence. Adultery should be regarded as a betrayal of trust. However, the commission has
stated that this should not be done until a national consensus has been reached on the matter.
They continued by saying that women are generally socially powerless and that laws
protecting women need to be reinforced. Additionally, the commission has suggested that
Section 198(2) of the Criminal Procedure Code (Cr. PC) be changed, as it currently contains
no language that would prevent the wife of an unfaithful spouse from bringing legal action
against her partner for his promiscuous conduct. However, given that it will result in gender
prejudice in the legislation once more, we disagree with the proposals. Every alleged crime
must have a victim (the aggrieved party) and a perpetrator (the criminal). The husband is the
party who is harmed by the wife's male paramour's breach of the marriage home's sacredness.
Why does the wife not receive equal protection under the law when both the husband and the
female paramour are accountable for the same crime in the same way?
As long as the husband is not found guilty of the criminal offence of adultery, the
demand for punishment for the wife alone seems unjustified. The punishment of the male
paramour is justifiable if the wife is seduced since she can be assumed to be the victim of the
crime and not the perpetrator. However, what if this is not the case? Is the punishment of the
male paramour appropriate when the seducer is a married woman (wife) or when the seducer
is not the male paramour? The criminal law needs to include and elaborate on it.
 3. JUDICIAL PROGRESS WHICH LED TO THE REPULSION OF
SECTION 497

1. Sowmithri Vishnu Vs. Union of India3

Husband requested a divorce on the grounds of infidelity and desertion. The husband
accused Dharma Ebenezer of adultery under section 497 of the Indian Penal Code during his
wife's divorce suit. Later, his wife filed a lawsuit against him, using Article 14 of the
Constitution as justification for the violation of Section 497 of the Penal Code since it
unjustly denies women the same rights as males. The written request also included the
following statements: I Section 497 does not grant a wife the right to prosecute an adulterous
husband with a different woman when the husband is in a relationship with an unmarried
woman; (ii) In cases where a husband is in a relationship with an unmarried woman, Section
497 does not include husbands having the freedom to have an adult;
In the aforementioned ruling, The Supreme Court ruled in the case cited above that it
was clear from the law's intent that a woman who was intimately involved with another man
was the victim of the crime, not its perpetrator. connection with another man was a victim of
the crime, not its perpetrator. The Legislature has determined that adultery, as defined in
Section 497, is a crime against the integrity of the married family and is typically perpetrated
by men.
As a result, the statute encompasses all men who violate the sacredness. The law
forbids husbands from engaging in licentious behavior with unmarried women. It only
permits criminal behavior for one type of extramarital relationship—the one in which a male
is the only offender and a married woman is the victim.
The Hon'ble Supreme Court of India's ruling in this case affirmed the constitutionality
of Section 497 of the IPC, which designated adultery as a punishable offence. The petitioner
sought the repeal of Section 497, but the court dismissed his arguments that it violated or was
inconsistent with fundamental rights. Even errant spouses, according to the court, do not have
legal recourse against one another; nonetheless, they may always turn to civil law and file for
divorce on the basis of adultery. To safeguard the interests of society and the sanctity of
marriage, the court affirmed the validity of the aforementioned section. It shifted the onus of
handling this matter in accordance with societal needs and behavioral patterns on the
legislative branch.
The Supreme Court's judgement that a woman's change in lifestyle might not be
acceptable and that the seduced woman is actually the victim and not the offender of the
crime is regarded to have a lot of weight. In this regard, perhaps the time for punishing
women for adultery has not yet come.

3
1985 CrLj 1302 (SC)
2. V. Revathiv.Union of India4

In this instance, the wife contested the constitutionality of Section 198(2), read in
conjunction with Section 198(1) of the CrPC, which, as was already mentioned, allowed the
adulteress's husband to bring charges against the adulterer but forbade the adulterer's wife
from bringing charges against her promiscuous husband. Realizing that the clause prevents
the husband from engaging in sexual promiscuity as well She contended that the woman
cannot be lawfully precluded from pursuing legal action against her unfaithful husband,
regardless of whether the law required the husband to pursue his adulterous wife. She may
have realised that the provision also forbids the adulterous wife's husband from bringing legal
action against her. According to the petitioner's wife, such a legislative provision is based on
gender discrimination and goes against the equality established by the Constitution.
According to the law, Section 497 1.P.C. refers to the subject of Section 497 I.P.C.'s
violations. The law is written in such a way that neither the offending wife's husband nor the
offending husband's wife is permitted to bring a case against the other for being unfaithful to
them before the Supreme Court for defiling the sanctity of the matrimonial relationship by
engaging in adultery. Section 497 I.P.C. has also been found to be discriminatory. It does not
provide the two partners the ability to use a legal weapon to physically harm one another.
Because of this, neither the husband nor the wife may file a lawsuit against the other and have
the other sent to jail. The rider has been inserted that if the outsider is a woman, she is not
punished even though the outsider who violates the sanctity of the marriage home is
punished. As a result, prejudice is now "in favour" of women rather than "against" them.
The Supreme Court disapproved of this. In response to the dispute, the Court found
that Section 497 I.P.C. and Section 198(1) read in accordance with Section 198(2) of the
CrPC, go together and form a statutory package to address the crime committed by a third
party who invades the matrimonial unit's peace and privacy and taints the relationship
between the two partners who make up the matrimonial unit.
In the final analysis, the Court upheld Section 497's constitutional legitimacy when
read in conjunction with Section 198, noting that it is non-discriminatory because it prohibits
both the wife and the husband from punishing one another for adultery. The Court claims that
it only takes action against an outsider who tries to violate the sanctity of marriage.
Therefore, rather than being discrimination "against" the wife, it is discrimination in her
"favour."

4
AIR 1988 SC 835
3. Joseph Shine v. Union of India5
In December 2017, Joseph Shine challenged Section 497. The three magistrates, led
by then-CJI Dipak Misra, forwarded the petition to the five-member Constitution Bench,
agreeing that the regulation is outdated.
The petitioners argued the following things:
1. Gender-neutral adultery law. The statute requires a man to be prosecuted for adultery, but
not a woman.
2. Section 497 prohibits a woman from suing her husband for adultery.
3. Women are seen as objects under adultery legislation since, according to section 497, the
act is not illegal if the spouse consents.
The court previously acknowledged that "societal presumptions" seem to be the
emphasis of the statute. A husband cannot be his wife's master, the court ruled in four distinct
but concurrent judgments. Chief Justice Dipak Misra, R.F. Nariman, A.M. Khanwilkar, DY
Chandrachud, and Indu Malhotra made up the five-judge bench.
The decision dealt with the following things-
 Section 497 to no Longer be a Criminal Offence: An actual private domain would be
violated if adultery were treated as a crime. Since adultery would otherwise interfere with
a domain, it would not fall under the concept of a crime. Since adultery would otherwise
violate the extreme privacy of marriage, it would not fall within the definition of a crime.
It appears to be a legal wrong, nevertheless, and grounds for divorce. The husband and
wife should decide what occurs once adultery has been committed because it should only
require their own judgement.

 Section 497 is Legally Void as it is unconstitutional as per Article 14, 15 & 21:
Women are denied privacy, autonomy, and dignity under Section 497. It violates her right
to life and personal liberty by supporting an unequal definition of marriage. This section
rejects fundamental equality by promoting the assumption that women are unfair
marriage partners unable to freely consent to a sexual. Article 14 violated. It's gender-
based and violates Article 15's non-discrimination clause. Husband approbation is like
women's servitude. It opposes Constitutional Article 21.

 Husband Is not the Master of his Wife: The decision assumes women are no longer
their husbands' or fathers' property. They have equal status in society and should have a
voice.

 Section 497 is Arbitrary in nature: It doesn't maintain the 'sanctity of marriage' because
a man can give his wife permission to date someone else. The ruling preserves a
husband's "property rights" over his wife. Husband or lover can't file a complaint.
Married men who have affairs with unmarried women or widows have no provisions.

5
2018 SCC OnLine SC 1676.
 4. SHOULD ADULTERY BE DE-CRIMINLAZIED?

Adultery is no longer regarded as a crime in the majority of the European Union.

The legal definition of adultery differs from state to state in the United States; however,
since the U.S. Supreme Court's ruling in Lawrence v. Texas, the legality of adultery laws
has come into question. Although the death penalty is the ultimate punishment for adultery
in Islamic countries, the idea is firmly founded in tradition. States "should refrain from
penalizing private sexual encounters between consenting adults," according to the United
Nations Human Rights Committee, and they should abide by Articles 17 and 26 of the
International Covenant on Civil and Political Liberty.

Instead of creating provisions to change the laws to regard women as criminals in

cases of adultery, the National Women Commission of India wants the section removed and
the offence treated as a civil wrong rather than a criminal offence. Even the Supreme Court
of India hinted that a man and a woman should not use the force of the law against one
another. Even the 42nd Law Commission Report stated that the primary goal of the law is
not to imprison a person; rather, the court typically enters into mercenary agreements with
offenders.

In a study conducted by the 42d Law Report Commission in 1972 about the issue of
repealing section 497, the majority of judges and attorneys favoured keeping the section in
place, with only a small percentage favoring repeal. They added that India has not yet
reached a point where a significant modification in the law is necessary. However, they have
also disclosed that there are only a small number of criminal adultery accusations, and that
only a small percentage of those allegations result in jail for the accused.

The Supreme Court has previously stated that the intent of this law is to promote
societal good by allowing the husband and wife to "make up" or "break up" their married
relationship without being prosecuted and brought before a criminal court. They have the
option to divorce each other in civil court or continue living together under the principle of
"forgive and forget." Additionally, the law was created to protect children from the pain of
witnessing one of their parents in prison.

It is appropriate to decriminalize adultery and make it a civil wrong in light of

developments in other industrialized and progressive nations as well as recommendations
from committees and other sources.
 5. COMPARATIVE STUDY OF THE ADULTERY LAW

(A) USA:
The strict puritan origins of the laws against adultery in the United States date back to
the ecclesiastical courts of England, which before the founding of the republic. Adultery has
been viewed in the United States as a violation of morality and chastity since the colonial era,
with both civil and criminal repercussions. Most early states made adultery a felony, but not
necessarily a deadly one. After the 18th and 19th centuries, adulterers were seldom
prosecuted, the laws were mostly disregarded, and adulterous affairs were often used as
blackmail, prompting the American Law Institute to suggest decriminalising adultery in
1962.
Because of this, husbands in the 20th century had access to legal recourse to address
these problems: trespassing claims, torts of indignation, exclusion from love, and criminal
proceedings all provided husbands the opportunity to demand punitive damages from his
wife's mistress. Over forty states established legal restrictions against these "amatory
charges" (often known as Heart Balm Acts) against a spouse's paramour as over time, courts
shifted away from viewing their wives as legitimate grounds of recourse for sexual purity and
the rights of spouses.
However, in the US judicial system, the idea that adultery is an insult to a partner is
always crucial. The adulterous partner may still be held liable for damages in several areas,
like North Carolina, where the adultery can be addressed by amatory charges or accusations
of reckless or intentional infliction of mental distress. Laws are now advocated as an
"instrument to foster marital peace" rather than as a means of preserving women's chastity.
Thus, punishing dishonest partners is a "victim-oriented method" to prevent similar accidents.
Although adultery is defined differently in different jurisdictions, thirty of the thirty-two
states that still accept a system based on blame recognise it as a basis for divorce.
Twenty states still have adultery as a crime with penalties ranging from a $100 fine to
felony charges, however the crime is rarely prosecuted in American courts. The United States
does not tolerate adultery on a moral or cultural level, notwithstanding the de facto absence of
criminal punishment in this country.
Therefore, the continuous prohibition of adultery primarily functions as "moral law"
and attempts to discourage immoral behaviour, though it does so ineffectively. States and
proponents defend the continued outlawry of adultery by maintaining the social institution of
marriage and shielding innocent partners from harm. Adultery is also thought to have an
impact on social structures and penalise actions taken to prevent such social degeneration.
The explicit patriarchal legal background noted above, along with this moral rejection,
contribute to the persistent stigma in American society against unfaithful women and
mistresses.
(B) South Africa:
"South African law adopted Roman-Dutch common-law concepts in the seventeenth
century; adultery was illegal and may result in the husband suing for criminal damages but
not the wife." "Where the husband encouraged her adulterous behaviour, where there was
connivance between the couples, or where he engaged in adultery himself, the husband lost
his claim for damages (and divorce)."
Since the case might be brought either in conjunction with the divorce or in a separate
simultaneous action, it was not apparent in prior years if a divorce was a requirement for the
husband's claim for damages. It was uncertain if South African law adopted the Roman Dutch
prohibition against intermarried adultery.
In accordance with the tenet that "a spouse should not benefit financially from a
marriage," the divorce system at the time was flawed and might result in financial
consequences for an adulterous spouse at the time of the divorce.
Since adultery was one of three grounds for divorce in South Africa, it was also
important to the legislation. The information above demonstrates the substantial changes in
South Africa's legal definition of adultery. Comparatively speaking to divorce and criminal
damages claims, adultery is no longer an offence, whereas gender neutrality was more than
sixty years ago.

(C) Islamic Countries:

In Pakistan, adultery is viewed as an awful offence that carries the death penalty for
both men and women. A Pakistani court found two of them guilty of adultery in 1987, and
ordered that they be publicly stoned to death and buried. A lady who had committed adultery
was stoned to death in North West Frontier Province in 2002.
Since the Islamic Penal Law was enacted in 1980, it's possible that Pakistan has
implemented such a harsh adultery sentence (Huddod Ordinance). Other Islamic nations like
Saudi Arabia, Iran, Egypt, etc., also have harsh penalties for adultery.
 CONCLUSION

Without the other person's permission or knowledge, anybody who engages in sexual
activity with someone they know to be another man's wife is guilty of an adult felony other
than rape. The wife is not an assistance in this situation. Before the historic decision, a spouse
could charge the other guy with adultery even if his wife could not be charged for having an
extramarital affair. Thus, Yusuf Abdul Aziz vs. State of Bombay6 was the first landmark
adultery ruling. Section 497 questions the constitutionality of Articles 14 and 15 in India. The
Supreme Court upheld Article. The Supreme Court ruled that Article 14 is a broad clause and
should be interpreted as an exception to fundamental rights. The IPC provisions read together
confirmed a clause.
Article 15(3) of the Constitution allows Parliament to create special laws for women,
but it does not say that such measures must be biased against men. It can't be inferred because
that would defeat the purpose of the Constitution's equality clause. The amendment violates
the Indian Constitution's equality clause. The 42nd Statute Commission Report and the
Malimath Committee Report of 2003 proposed modifications to the law, but it remained
untouched until 2018, when the Supreme Court struck down an antiquated phrase.

6
1954 AIR 321,1954 SCR 930.