Adultery in India And Gender Biasness

A long time ago, when the British came to India, they brought with themselves, the law, and with it, the concept of Adultery, which was considered to be a crime in the eyes of law. If we take a look at the ancient texts, we find Adultery mentioned there too, as a crime. Adultery was provided under Section – 497 of the Indian Penal Code.

Such a law proves that in India, the women were considered a property. A property of her husband. Section – 497 of IPC contains the provisions for punishments that could be extended to 5 years imprisonment, and , or, fine.

Also Read – Adultery, No More A Crime!

Adultery can be defined as any act, which involves a sexual relationship, or a sexual  intercourse, outside marriage. But, under this law, there is found gender based biasness, and that can be seen in the definition of section- 497 – Adultery.

Section – 497 of IPC, states that, “Anyone who has a sexual intercourse with any person, whom he knows, or has any reason to believe, or who is, a wife of another person, without taking the permission or consent of her husband, given that it does not amount to a rape, will be guilty of Adultery, and he is to be punished with a term that may or may not be extended to a period of 5 years, with or without fine. And, the wife in this case will not be punishable, as the abetter.

Constitutional Validity

The law of adultery had been challenged a multiple times for its constitutional validity, but the court supported it, along with all its provisions.

Let us have a look at the case of – “Yusuf Aziz – v – State”, the court held that the immunity that is provided to the women was not a subject of discrimination, but was valid as per article – 15 (3) of the Indin Constitution, and it does not violate article 14, or 15 of the Indian Constitution.


The court held that on a ground that a law is not wanted by the society, it cannot strike a section down. The petitioners in court wanted adultery to be not biased, but be gender-neutral., as the law provided punishment to the male offender, but not to the female offender.

India never felt a need to change or amend this law of adultery, but on the other hand the lawyers and jurists, had been always against it. The adultery law worked on the consent of the husband, and the will of the women to have her sexual needs met, was not important.

If a husband does not care for her wife, or had left her, the women would still need the consent of the husband for having sexual intercourse with other man according to the adultery law of IPC. Therefore it is regarded as an anti-women law. Along with that the law discriminated between man and women, as men got punishment, while the women were spared.

As a result, the Supreme Court of India, struck down Section 497 of IPC, by quoting, that, it violated Article 21, and Article 14 of the Indian Constitution. And the Supreme Court of India declared that Adultery Law was unconstitutional, and will be struck off, while it may be used as a ground for divorce still. It will be and should be, used as a shield, rather than it used as a sword.

This article is authored by Divyanshu Mishra, student of BBA LL.B (Hons.) at Amity University, Lucknow

Law Corner

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