Introduction
Marriage is considered a sacred bond in India and not just a contract between two people. In order to protect the sacred bond of marriage, Section 497 of Indian Penal Code,1860 was included. This provision punished men for who committed adultery. Adultery is derived from the Latin word adulterare which means to make impure or to corrupt. Adultery was always considered immoral and this provision was used to curb it. However, Section 497 was decriminalised.
Previously Section 497 of IPC, 1860 was a criminal offence and prescribed imprisonment. But in 2018, the Supreme Court in the landmark case of Joseph Shine vs. Union of India (2018) struck it down and decriminalised adultery. It was held by the court considering adultery as a crime that violated constitutional rights and was arbitrary.
In democratic India, women enjoy equal rights, opportunities, and status as men. The right to equality under Article 14 is guaranteed by the Indian Constitution along with the right to life with dignity under Article 21. As times change the position of law and the needs of the society also change hence the Supreme Court modifies the law to ensure fairness.
In this article we will discuss some cases which took place before adultery was decriminalised, the landmark case of Joseph Shine vs. Union of India which decriminalised adultery and how it scenario and impact of this decision.
What is Section 497?
If a man has sexual relations with another man’s wife, knowing that she is married, and does so without the permission of her husband, it is treated as the offence of adultery (unless it amounts to rape). The man can be punished with up to five years in jail, or a fine, or both. The wife, however, will not be punished for this act.
Previous judicial pronouncements on adultery
The constitutional courts in India had the chance to look into the validity of Section 497 of the Indian Penal Code (IPC), which dealt with adultery. Among many cases, three important decisions of the Supreme Court discussed this issue in detail.
Yusuf Abdul Aziz vs. The State Of Bombay Andhusseinbhoy Laljee (1954)
In the case, the Supreme Court held that Section 497 of the IPC was not against Articles 14, 15, or 21 of the Constitution. The court said only the man involved in adultery could be punished, while the wife was not made liable as an offender or abettor.
Smt. Sowmithri Vishnu vs. Union Of India & Anr (1985)
The court in this case said that the woman’s consent under Section 497 did not matter. It further held that treating adultery as an offence did not violate fundamental rights. The court also noted that society generally viewed the man as the seducer, not the woman, and rejected the petition for lack of legal grounds.
V. Revathi vs. Union Of India & Ors (1988)
In this case, the court explained that the law was meant to punish an outsider who disturbed the peace and privacy of a marriage, not to allow spouses to prosecute each other. In this way, the law focused on protecting the marital unit rather than arming husband and wife against one another.
Decriminalisation of adultery
The Supreme Court of India struck down the 158-year-old law on adultery, calling it unconstitutional. A five-judge bench of the Supreme Court removed Section 497 of the Indian Penal Code, 1860, which dealt with the offence of adultery, and Section 198(2) of the Criminal Procedure Code, 1973, which laid down how offences relating to marriage could be prosecuted. Both these provisions were found to be unconstitutional and no longer apply.
Adultery was once considered a criminal offence in India and has long been a debated topic in the legal system. In 2018, the Supreme Court decriminalised adultery, meaning it is no longer treated as a crime under criminal law. However, it continues to have importance in civil law matters, especially when dealing with issues such as divorce, financial maintenance or alimony, and disciplinary actions within the armed forces.
Why was there a need to decriminalise adultery in India?
There was a need to decriminalise adultery in India because:
It was discriminatory and arbitrary
It law was unfair in nature as it only punished males who were involved in a relationship with a woman who was married, and not the woman involved with the man. It treated a married woman like her husband’s property, violating her dignity and individuality.
It violated the right to equality
Section 497 violates the Article 14 of the Indian Constitution which states that all are equal.
It infringes the right to privacy
Considering adultery as a criminal offence was considered a violation of right to privacy and was seen as an intrusion in the private life of the people.
Changes made in the adultery law in India
There are many key changes made in the adultery law in India with the case of Joseph Shine vs. Union of India (2018). The Apex Court first of all declared Section 497 of the IPC unconstitutional and struck it down. The court observed that there is a need to recognise women equally in marriage and consider them capable enough to take their decision on their own. The old idea that a woman loses her independence or autonomy after marriage was rejected by the court.
The legislature took steps after the Supreme Court’s remarks. They changed Section 497 to remove its bias against women. Adultery was no longer treated as a crime, and the law was made fair for both men and women, ensuring equality. Another major change was about consent. Earlier, the law strangely required the husband’s permission for adultery to be an offence. The new approach stressed that consent in a relationship is personal and must be respected, reflecting modern ideas of freedom and equality in marriage.
Joseph Shine vs. Union of India (2018)
Facts of the case
In 2017, a public interest litigation petition was filed challenging the constitutional validity of adultery (Section 497 of IPC) when read with Section 198(2) of the CrPC. The three judge bench headed by the Chief Justice referred the current petition to a five judge bench accepting that the law was indeed out of date.
Issues raised in the case
- Whether there was a need to decriminalise Section 497?
- Whether Section 497 of IPC violates Article 14,15 and 21 of Indian Constitution?
- Whether adultery provision is arbitrary in nature?
- Whether making adultery a crime means that the law is interfering in a person’s private life?
Key arguments made by the parties
Arguments made by the petitioner
The petitioner argued that the Section 497 of the IPC and Section 198(2) of the CrPC were unconstitutional and it violated the rights provided under Article 14, Article 15 and Article 21 of the Constitution of India. The petitioner further highlighted that these provisions were out of date as they dated back to the British times. These laws are not relevant in the current modern times.
As per this section the women were treated with discrimination and were considered as a property of their husband after marriage. This provision denied them the right to file a case against their adulterous husbands. It was further argued that these laws infringed the dignity of women, their privacy, sexual autonomy and were also arbitrary.
They argued that adultery is a private matter between two people, so it shouldn’t be a crime that punishes only men or depends on whether the husband agrees.Both the parties should be considered liable on equal basis and everyone should be free to have sexual relationships with consent, no matter whether they are married or not.
Arguments made by the respondent
The respondents argued that adultery should not be decriminalised as it protects the marriage as it harms the children, spouse and the society. The respondents argued that it was morally wrong to not consider adultery as a criminal offence and it needs to have punishment. They contended that adultery provision was fair under Article 15 (3) as it states that special protection is allowed for children and women. The respondents claimed that this provision was helpful to women in keeping their marriage.
Judgement of the case
The Supreme Court unanimously struck down Section 497 of IPC. The five judge constitution bench gave this judgement. It was held by the court that this section was unconstitutional as it was discriminating between genders. This provision only punished men who were involved in sexual relationships with the wife of another man while the women involved were fully exempted. This provision only allowed the husband to file a complaint. Criminal law follows gender neutrality which is violated by this Section.
The court made it clear that marriage cannot be used as a reason to limit a person’s freedom to make their own choices. Because of this, adultery was no longer treated as a crime. However, this change does not affect civil matters like divorce or financial support that can result from adultery.
In 2023, the court also explained that its 2018 ruling does not apply to the Armed Forces. Members of the Armed Forces can still be punished for adultery under Section 69 of the Army Act, 1950.
Scenario after decriminalisation of adultery
After the 2018 Supreme Court ruling, adultery in India is no longer a criminal offence, though it remains relevant in civil matters like divorce, alimony, and custody. The decriminalisation promotes gender equality, respecting the autonomy and privacy of both spouses. Exceptions exist for the Armed Forces, and non-consensual acts are treated as rape. Overall, adultery has shifted from criminal law to a private civil issue, reflecting modern values of equality and personal freedom.
Conclusion
The Supreme Court’s decision in Joseph Shine vs. Union of India was a landmark judgment that marked a major step toward gender justice and the recognition of individual autonomy. The court decriminalized adultery, removing criminal penalties for consensual acts, and emphasized the importance of personal liberty, privacy, and equality in intimate relationships.
Frequently asked questions (FAQs)
Is adultery a crime in India in BNS?
Adultery is not considered as a criminal offence in Bharatiya Nyaya Sanhita (BNS) which replaced the Indian Penal Code in 2024. The Supreme Court has declared in their landmark ruling that adultery will not be considered as a crime.
What is the burden of proof for adultery?
The individual who makes the allegation of adultery has the burden of proof to prove adultery.
What are the exceptions to adultery?
There are certain exceptions to adultery. The man is not liable to adultery if the act is conducted with consent of the husband. If the intercourse which takes places does not have the consent of the woman then it shall be considered as rape and not adultery.
What is the difference between adultery and infidelity?
When a person has a sexual relation with someone other than their spouse, then it is known as adultery. While infidelity means having physical affairs and unfaithful behaviour in a broader sense.
