Provisions Relating to Adultery in Indian Penal Code And Current Situation of Women

Adultery: Where Is The Mirror To See The Truth?

India is a land of diversity. Many religion, cultures, customs are followed in our country. We are familiar with our laws and ceremonies. Marriage has been a very crucial part of Indian society. Marriage is a legalized sexual union between a man and a woman which is socially and legally approved. It is believed that in a country like India, marriage is not a union of two individuals but also a union of two families. Every religion has its own definition of marriage like in Hindu law, it is termed as a sacrament while in Muslim law, it is termed as a civil contract.

Marriage has many fundamental pillars and the most important pillar of marriage is loyalty which means that the husband and wife shall be loyal to each other. Morality plays a very important role in marriage. If any of the couple breaks his/her loyalty with another, it is termed as “cheating” or in a legal sense; it is termed as “Adultery”.

Introduction and Historical Background of Adultery

Adultery is a very big problem in today’s society. If we go back to the past days, it is considered as ‘sin’ or ‘crime’ just like murder today. Punishment was also given to those who commit adultery; they were either thrown out of their communities or were subject to humiliation so that no one can commit this crime. It was considered as a worst thing done by the people but now it is common amongst everyone.

“Adultery is the consensual sexual relationship of a married men or women with someone else other than his/her wife or husband”.

Definition of Law of Adultery varies from country to country. The only similar thing is that it breaches the vows of marriage and affects the sanctity of marital relations.

The adultery laws were passed in 1860 during the British period when the status of women was bad. They were treated as the “property of their husband” and were also exploited by men.

According to many religious scriptures, adultery is a breach of trust and loyalty between the couples.

Adultery in other Countries

Adultery is considered illegal in 21 American states. In Taiwan and Indonesia, it is considered as a criminal offence. In Pakistan, both man and woman held guilty if they commit adultery and the punishment may extend to death sentence.

South Korea struck down the law of adultery in 2015. More than 60 counties have struck down the adultery law including India.

Adultery in a legal sense

According to Indian penal code, Section 497 defines adultery as, “Whoever has sexual intercourse with a person who is and 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 the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, In such cases the wife shall not be punished as an abettor.” Which means that adultery is a sexual intercourse of men or women with someone else in which the offender has reason to believe to be the wife of another man which is without the consent of the husband. Such intercourse is not termed as a rape and be punished with imprisonment of five years or with fine or both. Wife shall not be punishable as an abettor. Husband can file a complaint of adultery against his wife.

Section 198(2) of CrPC treats the husband of a woman as ‘a person aggrieved’ by the offence committed under Section 497 of IPC.

The offence of adultery is non-cognizable but a bailable offence. It is compoundable by the husband of the women with whom the adultery is committed.

Compoundable offences are those offences where the court can record a compromise between the parties and charge against the accuse.[i]

Previously, Supreme Court had upheld the Section 497 as constitutionally valid in cases of Abdul Yusuf Aziz v state of Bombay[ii] the court laid down that the immunity granted to women from being prosecuted under section 497 was not discriminatory and valid under Article 15(3) of the Constitution.

In Revathi v Union of India[iii], the court laid down that Section 497 is so made that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law does not permit the husband of the accused wife to prosecute his wife and also law does not permit the wife to prosecute the offending husband for being cheated on her.

In Sowmithri Vishnu v Union of India[iv], the court held that the wife, who is involved in an extramarital affair with another man, is a victim and not the author of the crime.

In the above three cases, adultery is somehow seen as a sin to the Indian Society. But there is the one case which completely changes the 158 years old law of adultery.[v]

Who challenged the Law?

Joseph Shine, a 41 years old, filed a Public Interest Litigation under Article 32 of the Constitution. He filed a 45 pages petition and emphasizes his views on women rights and gender equality in which the court struck down section 497. He wants the adultery to be made gender-neutral because this section punishes only men.

Why decriminalizing Adultery?

On September 28, 2018, the Supreme Court struck down Section 497 of IPC relating to adultery. The Bench compromised of Chief Justice Deepak Mishra, Justice R.F. Nariman, Justice DY Chandrachud and Justice Indu Malhotra. The court, while decriminalizing adultery, said that the Indian Society treated women as a property of men. Husband is not a master of his wife. Women should be treated equally. The judges called Section 497, a violation of Article 14, 15 and 21 of Indian Constitution. They also said that, “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence”. Justice DY Chandrachud said, “Section 497 destroys and deprives women of their dignity. Women must be treated with equality with men. Any discrimination shall invite wrath of Constitution. A woman can’t be asked to think the way society desires.”

Justice R.F. Nariman said, “ancient notions of man being perpetrator and women being victim no longer hold good.”

Justice Indu Malhotra said that it can be moral wrong but this case is decided by husband and wife together; it can be a civil case but cannot be a crime.

The Bench said that Section 497 is ‘unconstitutional’ as it violated the right to equality and there was no reason to continue this anymore.

Adultery As A Ground of Divorce

Adultery as a ground of divorce is defined in Hindu Marriage Act, 1955, as the act of having voluntarily sexual intercourse with a person who is not the spouse of the respondent.[vi] The spouse who wants to file a petition has to give proper evidence that his partner has committed adultery.

Section 10 of Hindu Marriage Act, 1955 defines adultery as a ground for judicial separation. It states that the parties may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1).

Adultery, according to the Quran, is a punishable offence and the person who commits adultery should be given death penalty.

The provision for Judicial separation under Indian Divorce Act allows Christian women to file judicial separation on the grounds of adultery. Section 22 of the Indian Divorce Act bars a decree of divorce, but states that a judicial separation may be obtained by both husband and wife on the grounds of adultery.

The Special Marriage Act, 1954 states that if the respondent, after the marriage, had voluntarily sexual intercourse with any person other than his/her spouse, it is a valid ground for divorce.

Current situation of Women

By decriminalizing section 497 of Indian Penal Code, The apex court assured dignity and empowerment to the women of our country. But if we research more about the situation of women, we came to know that adultery destroys thousands of family every year. It shattered thousands of children and mothers emotionally and mentally every year. It is a wound in relationships which breaks every pieces of family and destroys them in that extent which leaves a big scar in the heart of the women because women are emotionally weaker than men.  Adultery threatened and destroys the women stable environment because decriminalizing of adultery does not change the behavior of society towards women.

In a country like India, divorce is not accepted by most of the Indian families that clearly shows the backward thinking of what other people thinks. If the woman is divorced by her husband then the life of woman gets complicated.

In India, most of the women are not financially stable and completely dependent on their husbands so it is difficult for the women to survive alone after divorce.


In India, adultery is now not a crime anymore. It is the private matter of the husband and wife. According to the constitution, everyone has granted right to equality and right to life but by making adultery a criminal offense, person would be deprived of dignity and privacy.

Hence, decriminalization of Section 497 of IPC may have ripple effect. It can be seen as it places reasonable restrictions, which means that there should be a limitation on sexual autonomy.

[i]  Section 320 of CrPC

[ii] AIR 321, 1954 SCR 930

[iii] AIR 835, 1988 SCR(3) 73

[iv] AIR 1618, 1985 SCR(1) 741

[v] Joseph Shine v Union Of India, 2018 SC 1676

[vi] Section 13(1)

This article has been written by Evemastushree, BA.LLB 3rd semester student at Guru Ghasidas University, Bilaspur.

Law Corner

Leave a Comment