Author: Sidrah Jami, Student at Amity University, Noida.
Adultery is an offence for 150 years in India. It is an offence that is committed by a man with a married woman without the consent of her husband. The paper emphasis the concept of adultery in India. Firstly, the paper provides an introduction to the concept. Secondly, the paper provides a detailed analysis of Section 497 of the Indian Penal Code which deals with the offence of adultery. Thirdly, the paper deals with the history of adultery and the countries where adultery has been declared as a crime, and countries where it is still followed. Fourthly, the paper deals with the constitutional challenges to adultery. It focuses on how the offence of adultery has challenged the provisions given under the Indian Constitution. It also focuses on different cases especially Joseph Shine vs Union of India which held that adultery is unconstitutional. And lastly, the paper provides a conclusion and emphasis on how adultery was held unconstitutional according to the judgment given in 2017.
The concept of adultery means a corporeal relation that arises between two people who are not bonded by marriage with each other and who marries another person who has a spouse who lives with one or both of them . The proper meaning of adultery may differ from district to district but the common issue in each district is having sexual intercourse outside the realms of marriage. Adultery is seen as an act of betrayal, infidelity or fornication in all religions. The meaning of adultery given in the dictionary is having sexual intercourse with someone who is not your husband or wife. According to the societal norms, adultery is seen as an objectionable act that shows a clear violation of trust. The lawful element of adultery differs from region to region. At some places the woman has sex intentionally with some individual who is not her spouse wheres at other side adultery is an act under which a woman wilfully has sexual intercourse with a third person without her husband’s consent. This concept is not only given under the subject of philosophy but is also given under the criminal statute. Adultery is defined under Section 497 of the Indian Penal Code, 1860 .
It punishes men for committing the act of adultery. It portrays that the male is liable for committing the offence of adultery and should be punished up to 5 years.
EVALUATION OF SECTION 497 OF IPC,1860
This section deals with the concept of adultery. Adultery is considered to be a hindrance to a relationship between a husband and wife. It is an offence committed against the sanctity and piousness of a married home. It is considered to be a social and illegal act. Adultery is not considered an offence if a man has sexual intercourse with an unmarried woman or a prostitute. Adultery is limited in scope as compared to the misconduct of adultery in divorce proceedings. The Apex Court previously considered that it cannot be said that in construing the offence of adultery, any constitutional provision is encroached by curbing the class of wrongdoer to men only.
Section 497 of IPC punishes the man if he has sexual intercourse with a married woman without the consent of her husband. This offence is committed by a third person against the husband in respect of his wife. The wife is not held liable for being an adulteress or an abattoir to the offence even though she gave her consent. If any sexual intercourse happens between a married man and an unmarried woman, or a widow or a married woman whose husband gives consent, then it is considered that the offence of adultery has not been committed. Under this section, the offender should know whether the woman is married or not.
HISTORY OF SECTION 497
The offence of Adultery has been committed since the civilization started, however many civilizations punished the act of adultery. In India, one of the sacred texts Manusmriti provided that there should be a proper punishment for the offence of adultery and it should be followed by banishment. In various other texts like the Dharmashustra or Apastamba, the offence pdf adultery was considered to be a crime and the punishment was given to the man and woman according to the classes and the caste. Christianity also saw the offence of adultery as a crime for both men and women. It was first witnessed by St. Paul’s to the Corinthians. Islam also perceives that the offence of adultery is a crime.
LAW OF ADULTERY IN OTHER COUNTRIES
Adultery is considered to be an act of betrayal between two parties. The offence of adultery differs from nation to nation. It changes according to the norms and attitudes of the people. Many countries in the world who have still not made proper laws relating to the offence of adultery. Some of the countries where adultery is still prevailing as a crime are Pakistan, Afghanistan, Indonesia, Bangladesh, Nepal and some parts of the United States of America. At the other place, some countries who have made strict laws relating to the offence of adultery. Some of the countries who have declared adultery as a crime are France, Austria, Denmark, Brazil, New Zealand and Japan.
CONSTITUTIONAL CHALLENGES TO ADULTERY
It is astonishing that the criminalization of the act that breaches the holiness of an unadulterated social institution such as marriage, by way of dishonesty and misrepresentation, is facing challenges in the past and time and again the constitutional validity of section 497 of the Indian Penal Code has been tested. Straight away after the initiation of the Constitution of India, Section 497 IPC was assailed on the ground that it conflicts with the soul of equality embodied in the Constitution.
CASES RELATED TO ADULTERY CHALLENGES BEFORE THE COURT
Adultery was first challenged in the case of Yusuf Aziz v/s State of Bombay . Under this, the petitioner said that adultery is violating the fundamental right of equality which is guaranteed under Article 14 and 15 of the Indian Constitution. Later in 1954, the Supreme Court held that the section is not violating the constitution and that the man is the seducer and not the woman so he must be held liable. Under section 497 the woman can only be considered a victim of adultery but not a perpetrator of a crime.
Under the case of Sowmithri Vishnu v/s Union of India , the Supreme Court held that Article 14 or 15 of the Indian Constitution is not offended by Section 497 of IPC.
That this section is not discriminatory between a woman and a man. The court held that the man will not be allowed to prosecute his wife for committing the offence of adultery in order to protect the sanctity of marriage.
Under the case of V.Revathi V/S Union Of India , the Supreme Court held that prosecution of adultery cases without the inclusion of women helps in offering a chance to the couples to make up and keep the boldness of marriage intact. Court held that adultery law is a shield and not a sword.
The Law Commission of India Report of 1971  and the Malimath Committee on Criminal Reforms of 2013 considered that there should be an amendment made for the adultery law. Both the Law Commission Report and the Malimath Committee argued that Section 497 should be declared gender-neutral.
Analysis on Joseph Shine V/S Union of India (2017) 
This has become one of the most landmark cases. Under this case, a petition was filed by Jospeh Shine challenging the validity of section 497. The three judged bench which was headed by Chief Justice of India, Dipak Mishra later referred the petition to the five-judge Constitution bench comprising of Justices DY Chandrachud, R F Nariman, Indu Malhotra, A M Khanwilkar, and Dipak Mishra. The bench observed that the law was only based on societal norms. The Supreme Court later struck down the offence of adultery. Adultery is a civil offence and is still considered a ground for divorce. The judgment directly blows the archaic and patriarchal law in our country. The apex court also referred to the judgment which was given under the case of K.S. Puttaswamy and another v/s Union of India and others  (2017) under which the Court held that the right to privacy is a fundamental right which is given under Article 21 of the Constitution. The court held that choice and identity play an important role in preserving the dignity of a woman. They also suggested that adultery is not a criminal offence and can be a ground for the dissolution of marriage.
The Supreme Court has seen the offence of adultery for 150 years. But recently, it declared the offence of adultery as unconstitutional as it treats the husband to be master of his wife. The Chief Justice of India declared that the law of adultery is arbitrary in nature and mostly violates the dignity of women. The court directs blew the patriarchal law which has been prevailing in the country for many years. Under the Joseph Shine case, the court clearly laid down that woman cannot be considered as a property of man. It also laid down that if the husband consents for an affair outside the marriage bond then it will not constitute adultery. Section 497 along with Section 198 of the Code of Criminal Procedure 1973 has also been declared unconstitutional therefore decriminalizing the offence of adultery.
- Adam Augustyn, Patricia Bauer (ed.), Adultery, Encyclopedia Britannica (Encyclopedia Britannica, inc, 2009), available at https://www.britannica.com/topic/adultery (last visited on April 18, 2020).
- Chandla Chhittar Lodha v. Mst Nandu AIR 1965 MP 268
- Yusuf Abdul Aziz vs State of Bombay 1954 SRC 930
- Sowmithri Vishnu vs Union of India (1985) Supp SCC 137
- V.Revathi vs Union of India (1988) 2 SCC 72
- Joseph Shine vs Union of India AIR 2018 SC 4898
8. K.S. Puttaswamy and another v/s Union of India (2017) 10 SCC 1