Adultry Decriminalization

Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878
DECRIMINALIZATION OF ADULTERY: THE WAY

FORWARD OR NOT
Nikita Barooah, PhD Research Scholar, National Law University and Judicial Academy,
Assam (NLUJAA)
ABSTRACT
The marital misconduct of 'Adultery' was a criminal offence in India till it

was decriminalized by the Supreme Court of India in Joseph Shine v. Union
of India in September 2018 whereby, Section 497 of the Indian Penal Code,
1860 and Section 198(2) of The Code of Criminal Procedure, 1973 were
struck down. Despite the fact that Adultery remains a civil wrong and a
ground for dissolution of marriage, the decision has raised a slew of social
and legal concerns, as Adultery no longer being a criminal offence could
possibly undermine family values and lead to a breakdown in sexual morality
by encouraging extramarital affairs. In this paper an attempt is made to
analyze the landmark judgment of Joseph Shine v. Union of India, to set forth
the interests and conflicts involved in decriminalizing the marital misconduct
of 'Adultery' in India and to examine whether the retention, modification or
repeal of a criminal legislation punishing 'Adultery' is necessary in
contemporary India.
Keywords: Adultery, Decriminalization, Joseph Shine, Conflicts, Marital

Misconduct
1
INTRODUCTION
Adultery was a criminal offence in India until the Supreme Court of India decriminalized it in
Joseph Shine v. Union of India1 in September 2018. This path-breaking judgement has sparked
a debate on the issue of 'Adultery' in India. The verdict which struck down section 497 of the
Indian Penal Code, 1860 (IPC) and section 198(2) of The Code of Criminal Procedure, 1973
(Cr.PC), has thrown open various social and legal issues with respect to whether Adultery,
being no longer a criminal offence, would perhaps lead to disorder in sexual morality,
encourage extra-marital affairs, undermine family life and also open the floodgates to sexual
crimes and sexual aberrations in the society. However, Adultery continues to remain a civil
wrong and a ground for dissolution of marriage. Against this backdrop, the paper is an attempt
to extensively discuss the Joseph Shine judgment and highlight its impact and possible
repercussions in India.
FACTUAL BACKGROUND
Mr. Joseph Shine, an NRI, preferred a Public Interest Litigation (PIL) before the Supreme
Court of India, wherein he assailed the constitutional validity of Section 497 IPC which defined
‘Adultery’ and prescribed the punishment for it, and also challenged Section 198(2) Cr.PC,
which dealt with the procedure for the prosecuting offences relating to Adultery. The Petitioner
was of the opinion that section 497 IPC was outdated, discriminatory, and violated the
principles of gender justice and fundamental rights enshrined in Articles 142, 153 and 214 of
the Constitution of India. He filed the PIL after learning that a thorough revision of the Indian
Penal Code, 1860 was being undertaken by the Government of India.
Section 497 IPC stated:
“Whoever has sexual intercourse with a person who is or whom he knows or has
reason to believe to be the wife of another man , without the consent or connivance
of that man , such sexual intercourse not amounting to rape, is guilty of the offence
of adultery, and shall be punished with imprisonment of either description for a
1
(2019) 3 SCC 39.
2
Equality before law.
3
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
4
Protection of life and personal liberty.
2
term which may extend to five years, or with fine, or with both. In such case the
wife shall not be punished as an abettor."
Section 198 Cr.PC stated:
“Prosecution for offences against marriage. — (1) No Court shall take cognizance
of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860)
except upon a complaint made by some person aggrieved by the offence:
****
(2) For the purpose of sub-section (1), no person other than the husband of the
woman shall be deemed to be aggrieved by any offence punishable under Section
497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the
woman on his behalf at the time when such offence was committed may, with the
leave of the Court, make a complaint on his behalf."
Initially, the matter was heard by a three-Judge Bench of the Supreme Court of India. After
considering the Petitioner's submissions and the previous challenges to section 497 IPC in Yusuf
Abdul Aziz5, Sowmithri Vishnu6, V. Revathi 7 and W. Kalyani8, the Bench determined that it was
necessary to re-examine the constitutionality of the provisions and directed that the matter be
listed before a Constitution Bench of five Judges and the case was heard and decided in
September 2018 by said Bench.
There were six Intervenors9 in the case and all of them contended that both the impugned
provisions were inconsistent with the current understanding of fundamental rights and freedoms
guaranteed under the Constitution of India and, hence, should be struck down as
unconstitutional.
5
AIR 1954 SC 321 (India)
6
AIR 1985 SC 1618(India)
7
(1988) 2 SCC 72 (India)
8
(2012) 1 SCC 358(India)
9
Vimochana, represented by Jayna Kothari; Partners for Law and Development, represented by Ms. Meenakshi
Arora; Four individual applicants represented by Advocates Mr Sunil Fernandes: Mrs Abha Singh; Mr M.V.
Mukunda, Mr Nishant Jethra .
3
ISSUES
1. Whether Section 497 IPC violated the right to equality entrenched in Article 14 of the
Constitution by denying substantive equality to women in marriage and society?
2. Whether Section 497 IPC encouraged discrimination on the basis of gender by stereotyping
married women as property of their husbands and thereby violated the non-discrimination
principle embodied in Article 15 of the Constitution?
3. Whether Section 497 denied the constitutional guarantees of privacy, dignity and sexual
autonomy, all of which are inherent components of the Right to life and liberty and thus
infringed Article 21 of the Constitution?
4. Whether criminalisation of Adultery would tantamount to intrusion of law in the private

realm of an individual?
5. Whether Section 198 (2) Cr.PC violated Articles 14, 15 and 21 of the Constitution?
CASE OF THE PETITIONER AND INTERVENORS
The Petitioner filed the PIL seeking a direction to declare Section 497 IPC and Section 198(2)
Cr.PC as unconstitutional, as the said provisions were susceptible to constitutional challenge
in the light of emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and
changing social conditions10 on the following contentions:
i) Section 497 IPC discriminated against men directly by punishing men who had sexual
relations with married women and excluded women entirely from the ambit of the offence.
Even in cases of consensual sexual relations between a man and a married woman, the
provision only punished the man, despite the fact that both the man and the woman were
'similarly situated persons', thereby violating Article 14 and 15 of the Constitution.
10
Writ Petition on behalf of the Petitioner in Joseph Shine v. Union of India, p.4 BAR & BENCH (Jan.20,
02:30PM, 2020), http://images.assettype.com/barandbench.pdf
4
ii) Article 15(3)11 of the Indian Constitution enables the State to make special provisions for
women thereby improving the equality quotient for them. However, the Article did not
permit exempting a woman from prosecution and punishment and could not be adopted
for claiming exemption in criminal law12 and hence, the provision could not be interpreted
as a beneficial provision. When men and women are on equal footing, discrimination
against a particular sex would offend Articles 14 and 15 of the Constitution of India.
iii) A man was not guilty of Adultery if he had sexual relations with a married woman with
her husband's approval; hence, Section 497 indirectly discriminated against women and
violated the constitutional guarantees of equality and non-discrimination. This was
founded on the age-old notion that the wife was the husband's property13 and subservient
to the master’s will14 and that anyone who polluted the wife or trespassed into the
husband's property was liable to be punished.
iv) The assumption that women were incapable of committing a gender-neutral offence like
Adultery and were merely victims, was part of the institutionalized discrimination.
Additionally, it was assumed that men possessed sexual agency while women lacked it
entirely. Even an 'unmarried woman' is ‘an outsider’ to the matrimonial home and should
be included as the persons capable of committing the offence, which is not possible merely
because of the definition of the offence.
v) Section 198(2) Cr. PC, explicitly excluded the woman from initiating criminal prosecution
against her adulterous husband under Section 497. The grievance of the husband of an
adulterous wife and that of the wife of an adulterous husband were qualitatively identical15
and hence by discriminating against a woman and disqualifying her from being an
aggrieved person, violated the right to equality and non-discrimination under the
Constitution.
11
INDIA CONST. Art.15, cl. 3: “Nothing in this Article shall prevent the State from making any special
provision for women and children”.
12
Memorandum of Written submissions by Advocate Kaleeswaram Raj, Counsel for the Petitioner in Joseph
Shine v. Union of India, THE LEAFLET (Jan. 21, 8.30 PM, 2020,), https://theleaflet.in.
13
Writ Petition on behalf of the Petitioner in Joseph Shine v. Union of India, p.4 BAR & BENCH (Jan.20,
02:30PM, 2020), http://images.assettype.com/barandbench.
14
Kaleeswaram Raj, supra note 13.
15
Kaleeswaram Raj, supra note 13.
5
vi) In Justice K.S Puttaswamy (Retd.) v. Union of India and Others16, the Supreme Court held
that the fundamental right to life inherent in Article 21 of the Constitution included the
right to privacy which, included the right to sexual privacy as an intrinsic part. Consensual
sexual relations between two adults, within or outside marriage, formed the core of a
person's right to privacy and the said provision in question punished the exercise of such
right with imprisonment thereby, imposing arbitrary constraints on the exercise of that
right.17
vii) The Supreme Court had dismissed all the previous challenges to Section 497 IPC and
Section 198(2) CrPC made in Yusuf Abdul Aziz (supra), Sowmithri Vishnu (supra) and V.
Revathi (supra) and the Petitioner claimed that the contentions had not been appreciated in
the right sense and the reasoning was based on highly incomprehensible and illogical
assumptions.
viii) India being a signatory to the Convention on the Elimination of all Forms of
Discrimination Against Women, 1979 (CEDAW), was bound by its provisions and was
obliged to reconsider Section 497 in the light of the contemporary social and legal
scenario. Further, S.198 (2) Cr.PC directly violated Article 118 and 1619 of the CEDAW by
specifically excluding women from the eligibility to prosecute.
ix) Adultery is a factor in determining the maintenance to a wife, under section 125(4) Cr.PC
(an adulterous wife is not entitled to maintenance from her husband) and section 125(5)
Cr.PC (if a wife is living in adultery, the Magistrate can rescind the decree of
maintenance).Adultery was thus strategically used to deny the wife maintenance or
alimony, or to malign her character and deprive her custody of her children.20
x) Retaining Section 497 on the pretext of 'preservation of marriage’ did more harm than
good to the marriage as it may not be able to withstand the process of a criminal trial and
16
(2017) 10 SCC 1 (India)
17
Written submissions by Advocate Ms. Meenakshi Arora in Joseph Shine v. Union of India, THE LEAFLET
(Jan. 21, 04..30 PM, 2020), https://theleaflet.in.
18
Article 1: “Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”
19
Article 16(1):"States Parties shall take all appropriate measures to eliminate discrimination against women in
all matters relating to marriage and family relations ....".
20
Summary of arguments on behalf of Intervenor/Applicants in I.A. NO. 100253/2018 , p. 6. (Jan. 21, 10.30
PM, 2020), (https://theleaflet.in/content/uploads/2018/08/Submissions-of-Sunil-Fernandes.pdf.)
6
would reduce the chances of reconciliation; where the alleged adulterer was married, his
trial and subsequent conviction could ruin his marriage; if the husband refuses to give a
divorce despite initiating criminal proceedings for adultery against his wife's paramour,
the woman may be trapped in an unhappy and vengeful marriage.21
CASE OF THE RESPONDENTS
The Union of India, the Respondents in the said case, opposed the plea to decriminalize
adultery and sought dismissal of the said petition and justified criminalisation of adultery on
the following grounds:
i. The Legislature in its wisdom had specifically created section 497 to support, safeguard
and protect the sanctity of the institution of marriage,22 keeping in mind the unique
structure and culture of the Indian society.23
ii. The Law Commission of India was in the process of reviewing the Criminal Justice
System, and had identified certain focus areas and subgroups to consider amending section
497 and the final report was pending.24
iii. Section 497 was valid as affirmative action under Article 15(3) of the Constitution which
exempted all discrimination in favor of women and thus exempted them from
punishment25 and an under-inclusive definition was not necessarily discriminatory.
iv. Adultery had the effect of destroying the family26 and section 497 protected the institution
of marriage and promoted social well- being by discouraging people from engaging in
potentially harmful behavior which was detrimental to a marital relationship; an act that
outraged society’s morality should be punished as a crime. Adultery in marriage was
morally repugnant and should be considered at par with the offence of battery or assault.27
21
Arora, supra note 18.
22
Counter Affidavit on behalf of the Respondent (Union of India) in JOSEPH SHINE V. UNION OF INDIA, p. 2 ,
(Dec. 21, 11.30 PM, 2019), https://www. livelaw.in.
23
Id at p. 5
24
Id at p.7.
25
supra note 6.
26
supra note 6.
27
supra note 2 at p. 184.
7
v. Adultery not only affected the two parties in the relationship, but also affected the children
and the society. Further, it affected the aggrieved spouse’s marital rights and mental
health.28
vi. The Respondents agreed that the provision needed to be amended appropriately; however,
removing the deterrence would encourage adulterous behaviour with deleterious social
consequences.29 Further, it was suggested that if the Court found any part of the provisions
violating the Constitution, the Court could read down that part but retain the provision.30
THE JUDGMENT
A five-judge Constitution Bench of the Supreme Court of India, comprising Chief Justice D.K.
Mishra, Mr. Justice Rohinton Fali Nariman, Mr. Justice A.M. Khanwilkar, Dr. Justice D.Y.
Chandrachud and Ms. Justice Indu Malhotra, decided the case and, vide four separate
concurring judgments31, unanimously struck down section 497 IPC and section 198(2) to the
extent of its application to the offence of adultery on the grounds that they were discriminatory,
violated the principles of gender justice and the rights enumerated in Articles 14, 15 and 21 of
the Constitution.
The Judges held that Section 497 violated Article 14 of the Constitution as it viewed women
as men's subordinates, treating them as chattel, subject to the master's will. By excluding extra-
marital relationships with an unmarried woman or a widow from its scope, the provision was
restricted as far as men were concerned as he was only criminally liable for committing adultery
in limited circumstances.32 The provision was outdated since it had outlived its purpose and
did not fit in with contemporary constitutional morality as it lacked its raison d'être and was
discriminatory and manifestly arbitrary.33 It offended the substantive sense of equality of rights
34
and obligations between the spouses and lacked an adequately determining criterion for
criminalizing consensual sexual behaviour.35Article 14 forbade class legislation and the
antiquated provision had been enacted at a time when women lacked independent rights and
were viewed as the husband's property; therefore, the offence of Adultery was viewed as an
28
Id at p. 184.
29
supra note 18 at p.7.
30
supra note 2 at p.184.
31
The Chief Justice on behalf of himself and Mr. Justice A.M. Khanwilkar
32
33
Id at p.119.
34
Id at p.151.
35
Id at p. 167.
8
injury to the husband as it was deemed a 'theft' of his property for which only
he could prosecute the offender.36 A provision based on such a classification which deprived
the women of the right to prosecute her unfaithful husband was not gender-neutral and ex-facie
discriminatory against women.37
The Judges held that Section 497 violated the non-discrimination principle38 embodied in
Article 15 of the Constitution and could not be interpreted as a beneficial provision under
Article 15(3), as it perpetuated a gender stereotype that infidelity of men was acceptable, but
that of a woman was impermissible39and placed a married man and a married woman on
different pedestals with regard to their actions40 on the basis of sex alone.41According to the
Judges, Article 15(3) was an enabling provision and its object was to effectuate protective
discrimination in favour of women, through affirmative action to their advantage and did not
protect a statutory provision that entrenched patriarchal notions in the garb of protecting
women42and thus the provision could not be perceived to benefit women.
The Court determined that the provision violated Article 21 of the Constitution by denying
women the constitutional guarantees of dignity, liberty, privacy and sexual autonomy43.
Individual dignity was elevated to a sacred realm in a civilised society and a civilization's
civility garnered more respect when it recognised woman's individuality and treated her as
equally with men. Any system that treated her with indignity, inequity, inequality or
discrimination incurred the wrath of the Constitution.44The provision endorsed patriarchal
notions of sexual control over women’s sexuality by allowing only the husband to prosecute
the man with whom his wife had sexual relations even, when the woman had a consensual
sexual relationship and by stating that if her husband consented, such a sexual relationship
would not amount to the offence of adultery,45 implying that the husband owned the wife's
sexual agency and she was only a victim who had to be protected.46The provision focused on
protecting the husband’s interest in his exclusive access to his wife's sexuality rather than
36
Id at p. 185.
37
Id at p. 150.
38
Id at p. 168.
39
Id at p. 154
40
Id at p 153-154
41
Id at p. 156-157
42
Id at p. 156-157
43
Id at p. 168
44
Id at p.76
45
Id at p. 159.
46
Id at p.159
9
protecting the sanctity of marital relationships47 and hence, by emphasising on the 'consent or
connivance' of the husband it amounted to subordinating women48 to a position of inferiority
thereby offending her dignity, which was the core of Article 21.
According to the Court, since 'sexual privacy' was deemed to be an integral part of the ‘right to
privacy’ in Justice K. S. Puttaswamy v. Union of India49, Section 497 was hit by the ratio and
also failed to meet the three-fold requirement of (i) legality, which postulates the existence of
law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which
ensures a rational nexus between the object and the means adopted50 to justify the invasion of
privacy by the State, as held in the aforementioned case.
The Court stated that section 198(2 ) Cr.PC, was blatantly discriminatory as it expressly
excluded women from prosecuting anyone for adultery and thus gave the husband a licence to
treat the wife however he wanted, which was extremely excessive and disproportionate.51 The
Court held that section 198(2) Cr.PC violated Article 14, 15 and 21 and stated that when the
substantive provision goes, the procedural provision must follow suit.
While deciding whether to make Adultery a criminal offence, the Court opined that it could
be a civil wrong, but not a criminal offence, as that would amount to the State invading the
private realm of marriage52 and thereby violating Article 21 of the Constitution. Additionally,
it was stated that criminal sanction by the State was only justified, firstly, when there was a
public element in the wrong, where, the victim was not an individual but the community as a
whole and secondly, when a civil remedy for a wrongful act insufficient.53The Court reasoned
that while Adultery may not be the cause of an unhappy marriage, it may be the result of
one54and many married couples may be compelled for personal reasons, to continue with a
pretentious marriage that has effectively ended. When 'Adultery' existed in a marital
relationship, the commitment of the spouse was questionable,55 and when the parties to a
marriage lost their commitment to the relationship, it created a rift in the marriage and hence,
it was up to the parties to resolve the situation, with some seeking 'exoneration and living
47
Id at p. 159
48
Id at p.98.
49
(2017)1 SCC 1.
50
51
Id at p. 88.
52
Id at p. 103.
53
Id at p. 190.
54
Id at 103.
55
Id at p. 164.
10
together' and others seeking 'divorce'. However, it was a private matter and punishment of the
spouses or a third party was unlikely to establish commitment or salvage the situation.56 The
realities of human existence are too complex to place them in closed categories of right and
wrong and to subject everything deemed wrong to the sanctions of penal law.57
While justifying the necessity of sections 498-A IPC (Husband or relative of husband of a
woman subjecting her to cruelty) , S. 306 IPC (Abetment to Suicide), 304-B IPC (Dowry death)
and S. 494 IPC (Marrying again during lifetime of husband or wife), which provided for
punishment in matrimonial matters, the Court held that the said offences were intended to
serve other purposes relating to a matrimonial relationship and extinction of life of a married
woman58 and did not enter into the private realm of matrimonial relationship as no third party
was involved in the said offences.59 Hence, Adultery stood on a different footing from other
offences60and did not fit into the concept of a crime, as it interfered with the dignity of the
husband and wife and the privacy attached to their relationship.61
After analysing judgments on Adultery by the Constitutional Court of South Africa62, South
Korean Constitutional Court,63 Ugandan Constitutional Court64 and United States Supreme
Court,65 the Supreme Court of India concluded that the global trend was towards treating
adultery as a civil wrong and a ground for divorce66 rather than a criminal offence.
The Court overruled the decisions in Sowmithri Vishnu v. Union of India 67 and V.
Revathi v. Union of India68 on the grounds that they had adopted a distorted view of marriage
and were founded on ancient notions of the man being the seducer and the woman being the
victim69 , which was no longer prevalent. The Court noted that due to the change in social,
cultural, moral, economic and political values and perspective over time, as well as the evolving
56
Id at p. 103.
57
Id at p. 164
58
Id at p.101
59
Id at p. 102
60
Id at p.101.
61
Id. at p. 101.
62
Id. at p. 117.
63
Id. at p. 140.
64
Id. at p. 142
65
Id. at p. 43-144.
66
Id. at p.39
67
AIR 1985 SC 1618 (India)
68
(1988) 2 SCC 72(India)
69
supra note 2 at p. 124
11
concepts of transformative constitutionalism and constitutional moralism, the provision

criminalizing adultery had lost its effectiveness.
IMPACT ANALYSIS
The judgement observed that Section 497 was an archaic, British-era regressive law replete
with anomalies and incongruities and only preserved the ‘proprietary rights’ of the husband
over his wife; it was based on discriminative classification against women and was thus, in
my opinion correctly struck down.The definition of adultery therein was outdated and
redundant in contemporary society, especially since neither the husband nor the wife had any
legal course against their respective unfaithful spouses under criminal law in India . As a result
of the verdict, ‘Adultery’ is no longer a criminal offence in India.
However, the verdict has taken the moral sting out of 'Adultery' and has left no scope for
interpretation which might have far-reaching impact on the society. In common parlance,
‘Adultery’ refers to the voluntary sexual intercourse by a married person with any person other
than his or her spouse i.e.; extramarital sex. Since times immemorial, it has been viewed as
morally abhorrent and a violation of the sanctity of a marriage. Loyalty and trust are critical
components of a marriage, while ‘Adultery’ is a marital transgression which pierces the very
soul of a marriage. The verdict thus amounts to giving legality to extramarital relationships
which is extremely injurious to the moral foundation of a civilised society as it may perhaps
open the floodgates to numerous sexual crimes and sexual aberrations in the society.
Section 125 Cr.PC deals with the husband's obligation to maintain his wife, and section 125(4)
Cr.PC there is an express embargo on the right of a wife to claim maintenance based on the
allegations of Adultery. Additionally, section 125(5) Cr.PC permits a Magistrate to cancel an
order of maintenance made in favour of the wife on the grounds that the said wife is living in
adultery. However, after this judgment, there is no definition of the term 'Adultery' in the
criminal law in India, posing a serious problem for the women with respect to maintenance
along with other issues.
Even though this judgment decriminalised Adultery in India, it remains an offence in the
Armed Forces in India. The offence of "stealing the affection of a brother officer's wife" - the
common euphemism for Adultery, is considered moral turpitude and deemed the second most
serious offence in the Forces. Prior to the judgment, Adultery was tried as a civil offence in
12
the Forces70 along with, Section 497 IPC and was not a standalone offence. This verdict is
likely to put the Forces in a dilemma as it is imperative for them to ensure that it remains a
criminal and punishable offence to ensure discipline among its ranks.
The judgment held that Adultery could be a civil wrong, reason enough for annulling a
marriage. Adultery, by nature, is a clandestine activity committed in the shadow leaving no
trace of proof. The quality of proof is often circumstantial, weak enough for the allegation to
be jettisoned as inconsequential. The judgement has made headway to the extent that it has
expressly recognized an individual's right to privacy regarding sexual choice. However, it is
likely to result in chaos in sexual morality and an increase in divorces owing to adultery.
The decision is silent on the effect of Adultery on marriage as a social institution, on the
children of the married couple, the children born out of an adulterous relationship and the
society as a whole. Further the judgment has stressed on the dignity of woman, but has not
taken into consideration the 'dignity' of the spouses especially in cases where the victim’s
husband or the wife had to stay with the adulterous spouse out of compulsion with no recourse
to criminal law.
The decision has abolished penal consequences for adultery without examining any data with
respect to the non-effectiveness of criminal punishment in curbing the offence of Adultery in
India71 or whether Indian society is ready to make adultery not punishable. Further, the Court
could have waited for the final report of the Law Commission of India which was pursuing
the issue before reaching a decision in the case.
CONCLUSION
Education is a great leveller. The State has signalled the importance of education for all,
including the girl child, as a consequence of which logic and reason now determine the contours
of competence, possibility, acceptance, deniability and aspirations of all, including women. At
a stage where a woman’s contribution to family life is being sought to be measured in
quantifiable financial terms, it would be a fair assumption that the seeds of gender equality
have had a healthy sprout. A plethora of laws do exist in India which are inimical to the
interests of women and our judicial system has been endeavouring to eliminate these apparently
‘obnoxious’ regulations in consonance with the universally evolving belief that all are equal
70
Section 69 of The Army Act 1950; Section 77 of The Navy Act, 1957; Section 71 of The Airforce Act, 1950
71
supra note 2 at p. 141
13
before God and Law. One such law was codified in Section 497 IPC, enacted at a time when
women were relegated to second class, an animate property of the lord and master husband
and when patriarchy smothered the souls of women. Section 497 had to go. When a man’s
promiscuity is passé-partout while his wife’s fidelity has to be ensured at all times, there is a
crying need to call this ‘unfair’ and ‘unequal’, an effront to Article 21. That the very framers
of this provision have long past given a go by to this while it continues in the land they vacated
is indeed paradoxical.
(Late) Arun Jaitley was critical of the judgement which held that Adultery was like other
matrimonial offences, were personal wrongs and not public wrongs and were therefore outside
the purview of criminal law. He wondered whether it would also extend to bigamy and
polygamy. Swati Malliwal72, disagreeing with the judgement, said that in a society where
women wield little power, especially in the poorer and deeply patriarchal areas, a law punishing
adultery could act as a deterrent against men who were living in adultery after abandoning their
families and without providing any financial support for the children by instilling a sense of
fear. The abandoned wife might experience a sense of justice.
Since the Indian ethos gives paramount importance to the institution and sanctity of marriage,
it seems quite paradoxical that it does not attach a sense of shame or punishment to adultery in
marriage. One might like to say that the law is not concerned with morals; but morality is like
the lakshman rekha that should not be transgressed. Other countries might have decriminalized
adultery, but to presuppose that this is right for our country is debatable. Perhaps the purpose
of gender equality could also have been achieved by amending the section to make it gender-
neutral and extending the ambit of the offence to punish both married men and married women
for committing adultery.
72
The Chief of Delhi Commission for Women 2018.
14

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

DECRIMINALIZATION OF ADULTERY: THE WAY

The marital misconduct of 'Adultery' was a criminal offence in India till it

Keywords: Adultery, Decriminalization, Joseph Shine, Conflicts, Marital

Section 497 IPC stated:

Section 198 Cr.PC stated:

4. Whether criminalisation of Adultery would tantamount to intrusion of law in the private

CASE OF THE PETITIONER AND INTERVENORS

CASE OF THE RESPONDENTS

concepts of transformative constitutionalism and constitutional moralism, the provision

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