Dissertation Abhigya

DECRIMINALIZING ADULTERY:
A CRITICAL ANALYSIS
Submitted to
SVKM’s
Narsee Monjee Institute of Management Studies (NMIMS)
For the Award of
B.B.A. LL.B. (Hons.)
By
____________________
Abhigya Verma (A057)
_______________________________
Under the Guidance of

Assistant Professor Sunil George
Kirit P. Mehta, School of Law
Mumbai
2019
DECLARATION
This is to submit that this written submission in my dissertation entitled "Decriminalizing

Adultery: A Critical Analysis" represents my ideas in my own words and where others’
ideas or words have been included, I have adequately cited and referenced the original
sources. I also declare that I have abided by all the principles of academic honesty and
integrity and have not misrepresented or fabricated or falsified any idea/data/fact/ source in
my submission. I understand that any violation of the above will be cause for disciplinary
action by the School and can also evoke penal action from the sources, which have thus not
been properly cited, or from whom proper permission has not been taken when needed.
This dissertation encompasses the information generated by me based on work carried out in
the School. I assure and hold full responsibility for its genuineness.
Mr. Abhigya Verma
Forwarded Through
Academic Guide:
Sunil George
Designation : Assistant Professor
Department of :
Kirit P. Mehta School of Law,
SVKM’s NMIMS,
Vile Parle (W),
Mumbai - 400056
Kirit P. Mehta School of Law, Mumbai (2019) Page 2

CERTIFICATE
The work described in this dissertation entitled “Decriminalizing Adultery: A Critical
Analysis” has been carried by Mr. Abhigya Verma under my supervision. I certify that this is
her bonafide work. The work described in this dissertation is original and has not been
submitted for any degree to this or any other university.
Date: Guide:
Place: _____________________
Professor
Head,
Department of, __________________
______________________
Dean, KPMSOL
Abhigya Verma
Mumbai
2019
ACKNOWLEDGEMENT
For the successful completion of my dissertation, I would like to express the deepest
appreciation to my mentor, Assistant Professor Sunil George, who provided his valuable input
and always pointed me towards the right direction of research. Without his guidance and
persistent help this dissertation would not have been possible.
I would also the Dean of Kirit P. Mehta, School of Law, Dr. Alok Mishra, as well as the
Narsee Monjee Institute of Management Studies University for providing me with this
opportunity to work upon this dissertation.
Last, but not the least, I would like to thank Mrs. Sabah Khan, who helped me procure my
plagiarism report, the Administrative staff and the library staff for their constant help and
support, in providing for the required books and materials from time to time.

Abbreviations
 CJ- Chief Justice

 CJI- Chief Justice of India
 CrPC- Code of Criminal Procedure
 IPC- Indian Penal Code
 Ors. - others
 v.- versus
 Vol.- volume
 USA - United States of America

List of Cases
1. Madhub Chunder Giri, (1873) 21 WR (Cr) 13
2. Hari Singh Gour, Penal Law of India, eleventh edition, volume 4, Law Publishers,
Allahbad, 1998, p 4656
3. AIR Manual, fourth dn, vol 29, 901
4. Ramachandra v. Baburaj (2009) 4 KLT 744 (Ker).
5. Wj Philips Vs. Emperor AIR 1935 Oudh 506
6. Vedavalli v. MC Ramaswamy AIR 1964 Mys 280
7. AS Puri v. KC Ahuja AIR 1970 Del 214, (1970) Cr LJ 1441 (Del)
8. Brij Lal Bishnoi v. State (1996) Cr. Lj 4286(Del)
9. Boulting v. Boulting, (1864) 33 LJ (P M & A) 33
10. Munir, (1925) 24 ALJR 155
11. Pothi Gollari v. Ghanni Mandal, AIR 1963 (Ori) 60
12. Bharatlal v. Top Singh. (1995 Cr LJ 3545 (M.P.)
13. Kalyani v. State, AIR 2012 SC 497
14. 1985 CrLj 1302 (SC)
15. Sowmithri Vishnu Vs. Union of India
16. Yusuf Abdul Aziz v. State of Bombay, 1954 CrLJ 886 (SC)
17. V. Revathi Vs. Union of India, AIR 1988 SC 835
18. Joseph Shine v. Union of India
19. Gobind v. State of M.P. (1975)2 SCC 148
20. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)
21. Griswold v. Connecticut, 381 U. S. 479
22. Bowers v. Hardwick, 478 U.S. 186 (1986)

23. Janelle Perez v. City Of Roseville US Court of Appeals, No. 15-16430, 2018
24. Navtej Singh Johar
25. Rupesh v. Charandas,2018 SCC OnLine Bom 6292
26. A.S. Gauraya v. S.N. Thakur (1986) 2 SCC 709
27. McClure’s Ex’rs v. Miller, 11 N.C.(1 Hawks) 133, 140 (1825)
28. Halleman v. Halleman, 379 S.W.3d 443, 452
29. Farmer v Farmer (1850-1852) 1 Searle 227
30. Green v Fitzgerald 1914 AD 88 at 102, 119
31. Seroot v Pieterse 2005 Juta Daily Law Reports 0821 (T) in par [10]

Table of Contents
Declaration 2
Certificate 3
Acknowledgement 4
Abbreviations 5
List of Cases 6
Table of Contents 7
Research Methodology 10
Review of Literature 12-18
1. Introduction 19
2. Section 497, IPC: The Archaic Law 21-24
2.1 Essentials for constituting a crime of Adultery 21
2.2 Connivance and Consent: Judicial Interpretation of the word 22
'Connivance'
2.3 Adultery should not constitute Rape 23
2.4 Wife not to be treated as an abettor 23
2.5 Intention of Legislature behind not treating women as Abettors 23
3. Judicial Development leading to repugnancy of Section 497, IPC 26-30
3.1 Sowmithri Vishnu v. Union of India 26
3.2 Yusuf Abdul Aziz v. Union of India 27
3.3 V. Revathi v. Union of India 29
4. Joseph Shine v. Union of India 32-37
4.1 Section 497 is archaic and is constitutionally invalid as it is 32
violative of Articles 14,15 and 16 of Constitution of India
4.2 Section 497 to no longer be a criminal offense 33
4.3 Husband is not the master of his wife 33
4.4 Section 497 is Arbitrary 33
4.5 Analysis of the Judgment 34
5. Critical Analysis 39-41
5.1 Aftermath: Retrospective effect given to Joseph Shine v. Union of India 41

6. Comparative Study 43-51
6.1 United States of America 43
6.2 South Africa 45
6.3 England 46
6.4 Other Countries 49
7. Conclusion 53-55
Bibliography 56-58

RESEARCH METHODOLOGY
Scope of Research
This dissertation will focus on Adultery law in India, pre and post the judgment Joseph Shine
Vs. Union of India. Firstly, it deals with the Victorian law on Adultery that was being
followed since past 165 years. Secondly, it deals with the challenges that were made in the
past to check the constitutionality of Section 497 of the Indian Penal Code. Thirdly, it deals
with the critical analysis of the recent judgment of Joseph Shine Vs. Union of India where the
age old law of adultery was decriminalized. Lastly, the dissertation deals with the adultery law
of various countries and punishments for the same.
Research Objectives
The objectives of this study are –
 To understand the archaic law of adultery in India and why did it discriminatory
 To critically analyse the judgment of Joseph Shine Vs. Union of India and justify
decriminalization of adultery.
 To compare the adultery law in India with law in countries like Untied States of
America and England
Research Problem
Adultery is a universal human occurrence. It threatens the core of family life and the stability
of the institution of marriage and potentially creates uncertainty about the paternity of the
marital offspring. It is not merely a moral issue, but one which, over the past two millennia,
legal systems have used numerous avenues to address. The legal consequences of committing
adultery have varied according to place, community values, the historical era and prevailing
ideology. There have been number of debates and discussions on whether adultery should be a
crime or not in India. Adultery was an offence under the Indian Penal Code until the Apex
Court in India in a landmark judgment decriminalised adultery by holding that the said
principle was an archaic one and is gender discriminatory. The judgment of the Supreme
Court in Joseph Shine v. Union of India striking down Section 497 of the Indian Penal Code
and Section 198(2) of the Code of Criminal Procedure is monumental for reasons more than
one. Rarely has the Court, in its institutional history, struck down a definitional provision of
the Penal Code.

Research Questions
1. What was the law on adultery before the landmark decision by Supreme Court in
Joseph Shine v. Union of India, and how was it gender discriminatory?
2. What is the legal status of Adultery in U.S.A., England and other countries, is it a
crime or only a ground for divorce?
3. What was the intent of the Supreme Court behind decriminalizing adultery in the
landmark decision of Joseph Shine v. Union of India?
Hypothesis
The law on adultery before the landmark decision was an archaic one and was discriminatory
to both men and women. The Supreme Court was correct in declaring that erstwhile Section
497 of the Indian Penal Code was unconstitutional.
Process Adopted
The process adopted by the researcher is Doctrinal Research, whereby secondary data in the
form of books, journals, articles, case studies etc. have been referred to form a better
understanding on the topic. The problem at hand has been analyzed in the light of various case
laws.
Chapterization
 Introduction
 Section 497, IPC: An Archaic Law
 Judicial Developments leading to repugnancy of Section 497
 Joseph Shine Vs. Union Of India
 Critical Analysis
 Comparative Study
 Conclusion

Review of Literature
1. Jolie Lee, USA TODAY Network, ET April 17, 20141
This Article written by Jolie Lee briefly deals with the Adultery Law in the United States of
offence in 21 states. The Article was published in the year 2014 when New Hampshire, a U.S.
State was amidst decriminalizing adultery.
The Article also deals with the punishment. associated with Adultery/ infidelity. Since the
Unites States has a Federal Structure in true sense the Adultery law is different in each state.
Definition of Adultery also varies from state to state. Not only this, the Punishment for the
offence is also different in every state. For example in Massachusetts punishment for adultery
can be imprisonment of upto 3 years, while in the State of Marland, the adulterer might have
to pay a meager fine of 10 dollars.
The Article goes on to state that the Adultery is also classified as misdemeanor and felony in
different states. Felonies in some states, which allow capital punishment, might lead to even
death sentence. On the other hand a person committing misdemeanor might be imprisoned for
one year or less.
2. Alyssa Miller, "Punishing Passion: A Comparative Analysis of Adultery Laws in

the United States of America and Taiwan and their Effects on Women Alyssa
Miller", Fordham International Law Journal Volume 41, Issue 2 Article 4, pg
425-4702
This detailed study comparative study compares the law on adultery between U.S.A. and
Taiwan. The Author deeply covers the history of American and Taiwanese Law on Adultery
and how it has evolved over the years of modernization and globalization. The article
compares the adultery (having sexual relationships out of a wedlock) with passion. The
Article also establishes that while adultery is statutorily illegal in most of the states in U.S.A.,
serious punishments such as imprisonment are rarely given to the accused. However, this is
not the case only with Taiwan. Other Middle Eastern countries condemn adultery and
generally adulterous women are subjected to more cruelty and physical or psychological
torture than adulterous men.
1
Also available at www.freep.com
2
Also available at www.ir.lawnet.fordham.edu
The Author then goes on to justify why Adultery should not be treated as a crime and how
women are discriminated of it being illegal and lays down arguments in favour of
decriminalizing adultery.
The author compares Adultery Laws in United States of America and Taiwan in the
following points –
 Implications of Adultery in Society

 Present and Past Legal status of Adultery in America and Taiwan
 Rates of Women held guilty of the offence
3. Anna Duff, "What is adultery, is it the same as cheating, is it illegal in the UK

and is it grounds for divorce?," The Sun (18th September 2018) 3
This Article published by Anna Duff deals with law on Adultery in United Kingdom. The
author explains the difference between Adultery and Cheating, a common mistake committed
by many. The Article claims the definition of adultery in laws of England and Wales to be
narrow.
Rape in UK is defined as “sexual intercourse between a consenting man and woman when at
least one partner is married to someone else”.
The perusal of this Article led to a remarkable observation, that, unlike the Indian archaic law
and definition of adultery in Indian Penal Code, 18604 the definition of adultery does not
discriminate man or wife by making only the man liable for the offence. In United Kingdom,
either of them can be held guilty of the offence adultery.
The Courts in United Kingdom believe an Act of Adultery might be classified as

“unreasonable behaviour” but shall not be considered as a criminal offence in the eyes of law.
Adultery, definitely can be used as a ground for divorce by either spouses.
The law also says that an application for divorce on the grounds of adultery has to be filed
with the courts within six months of the dated the cause of action arose, that is the adultery of
the spouse came to the knowledge of the other.
3
Also available at www.thesun.co.uk
4
Section 497 of the Indian Penal Code 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 case the wife shall be punishable as an abettor.
The Author believes the abovementioned definition of adultery to be outdated especially in
light of recent developments in same-sex relationships
4. Soutik Biswas, "Adultery no longer a criminal offence in India" BBC News,

Delhi
(27 September 2018)5
The article covers the new Indian judgment, Joseph Shine Vs. Union of India6. The article
briefly summarizes the judgment and deals with the reasoning behind striking down the age
old law. The Article also covers the reception of critics, jurists and politicians on the new
law.The Author then goes on to cover the countries where adultery is a criminal offence.
According to the author adultery is treated as a criminal offence in the following Islamic
States-
 Somalia
 Pakistan
 Saudi Arabia
 Afghanistan
 Iran
 Bangladesh
Author goes on to discuss the Taiwanese. Indonesian and Korean law on adultery. In first of
its kind step, the State of Indonesia is codifying laws to prohibit even consensual sex outside
the wedlock. The Author concludes with a remark that adultery has been decriminalized in
Sixty One Countries and other countries should also be done away with the archaic concept.
However, the Author believes that Adultery can be a justified ground for divorce.
5. Devika, SCC "The online Blog: LAW MADE EASY," SCC (February 21, 2019)7
The Article critically deals with the archaic provisions of Adultery in the Indian Penal Code
and the code of criminal procedure. The author carefully examines and lays down the
reasoning that Section 497 of the Indian Penal Code, 1860 was arbitrary and discriminatory
for women
5
/www.bbc.com
6
Writ Petition (Criminal) No. 194 Of 2017
7
Also available at www.scconline.com
The Article then concisely discusses various judgments passed by the Indian Supreme Court
where the Constitutionality of Section 497 of the Indian Penal Code was challenged. The
author believes that this repealed provision treated woman as property of men and such
subordination and social dominance of men over men should be condoned.
The author then justifies the judgment of Josephine Shine Vs. Union of India with a
hypothesis that Section 497 violated Fundamental Rights enshrined in Articles 14, Article
15(1) and Article 21 of the Constitution of India.
6. Abha Singh, "Decriminalization of Adultery: A Setback to the Institution of

marriage in India", Outlook India (27 September 2018)
The Author Abha Singh criticizes the Judgment of Supreme Court in Joseph Shine vs. Union
of India. The Author believes marriage to be a sacrament and any form of infidelity should
not be considered legal. The Author believes that the rates of divorce in Indian are already on
the rise and such a judgment, decriminalizing adultery will only increase the rates of failed
marriages.
7. SC Sarkar, "Indian Penal Code", Dwivedi Law Agency Allahabad (2014)
SC Sarkar’s Indian Penal Code is a text book on Indian Penal Code and is a edition of the
year 2014. Since the judgment Joseph Shine v. Union of Indian came in 2018, the textbook
deals with the erstwhile Section 497 of the Indian Penal Code which has now been declared
unconstitutional.
The textbook helped the researcher in understanding the ingredients of the offence of adultery
under Section 497 of the Indian Penal code and incorporate the same in the research. The
book discusses in details the following ingredients for adultery to become punishable under
Section 497 of the Indian Penal code. These include –
 A man having sexual intercourse with a married woman

 The section indicts sexual intercourse by a man with a woman, who is the wife if
another man
 In order to be brought within the purview of this section, a man should not only have
intercourse with a married woman, but must also “know” or have a “reason to believe”
that such woman is the ‘wife of another man’
The textbook also covers in detail the method of proving adultery in a court of law. In
addition to this the textbook talks about the fact that woman are not to be treated even as

abettors under Section 497. Subsequently, the chapter goes on to discuss the reasoning and
intent of the legislature in deciding why women should not be treated as abettors within the
section.
The Author also differentiates between the crime of adultery and rape and establishes that
rape is a much graver offence than adultery and “consent” is the differentiating factors
between the two offences.
8. Justice K.T. Thomas and Advocate M.A. Thomas, "The Indian Penal Code",
Ratanlal & Dhirajlal, Volume II (33rd Edition, 2017)
The 33rd edition of Ratanlal & Dhirajlal is a text book cum commentary on the Indian Penal
Code. The book helped the researcher in gathering information about the various Supreme
Court and High Court Judgment where the constitutionality of Section 497 of the Indian Penal
Code was in question.
The book discusses in detail the judgment of Yusuf Abdul Aziz vs. State of Bombay8 where it
was held that Section 497 of the IPC is not ultra vires the Constitution by reason of the
exception made in favour of the woman. The section does not violate articles 14 and 15 of the
Constitution of India.
Subsequently the text book deals with the judgment of Soumithri Vishnu vs. Union of India9
where the Supreme Court affirmed its earlier view while dismissing the petition challenging
the provision under Section 497 of the Indian Penal code. It was held that Section 497 did not
make any irrational discrimination/ classification between men and women, hence it is not
unconstitutional.
9. K.D. Gaur, "Commentary on Indian Penal Code", Universal Law Publishing

Co., (2nd Edition)
The second edition of K.D. Gaur is a commentary on the Indian Penal Code. The book helped
the researcher to study about the Law of Adultery in various countries. The book deals with
the following countries –
 Islamic Countries like Pakistan, Saudi Arabia, Iran and Afghanistan, where
adultery is a crime and attracts heavy punishment.
 Greece, where both woman and man are equally considered guilty.
8
1954 Cr.Lj 886 (SC)
9
AIR 1985 SC 1618
 Argentina, where punishment for adultery is imprisonment upto one year.
 Philippines, where only women can be prosecuted for adultery.
 Malaysia, Hongkong and Singapore, where adultery is not a crime.

Chapter 1
Introduction

Chapter I
INTRODUCTION
Before the Indian Penal Code was enacted, adultery was not an offence in India either for men
or for women. It was also not included in the first draft of the Penal Code. However, the
Second Law, Commission added to it. The Law Commissioners noted that the then prevalent
social infrastructure and the secondary and economically dependant position of the women
were not conducive to punish adulterous men. Further, the authors noted, that a wife was
socially conditioned to accept her husband’s adulterous relationship as polygamy was an
everyday affair. She neither felt humiliated nor was it a culture of shock for her.
The Law Commissioners incorporated adultery as an offence in the Indian Penal Code
punishing only the adulterous men, leaving women, who, in their opinion, were already living
in humiliated and oppressive conditions within the family.
The Supreme Court has struck down the 158-year-old Victorian Morality law on Adultery in
its recent judgment in the case of Joseph Shine v. Union of India. The judgment is one of its
kinds and has overruled all the previous judgments upholding the criminalisation of adultery.
With pros comes cons and the same is likely to be the case with this judgment. So, now
Adultery has become legal but is still not ethical. The institution of marriage depends upon
the confidence of partners in each other. The Court has stepped back from interfering in the
personal and moral lives of the people. Adultery is now just a civil wrong for which the
remedy is divorce.

Chapter 2
Section 497,
IPC: The
Archaic Law

Chapter II
Section 497, IPC: The Archaic Law
The cognizance of the offence of Adultery committed with a married woman, and the male
offender was made liable to punishment. Thus under the Indian Penal Code, adultery was an
offence committed by a third person against a husband in respect of his wife. It was not
committed by a married man who has sexual intercourse with an unmarried woman, or with a
widow, or even with a married woman whose husband consents to it. It was not necessary that
adulterer should know whose wife the woman is, provided she was a married woman.10
2.1 Essentials for Constituting a Crime of Adultery
Section 497 of the Indian Penal Code, 1860, requires the following essentials:-
 Sexual intercourse
A man having sexual intercourse with a married woman is all essential ingredient of
the offence. So in a case where the wife went over to the shop of the accused to have
sexual intercourse, but was at once followed and entrapped, it was held that her act did
not go beyond the stage of preparation and hence this section was not attracted.11
Similarly, in a case when an accused was provided with a married woman to pass the
night with, and before the accused could have sexual intercourse with the woman, the
husband intervened and took her away, the accused was held not guilty under this
section.12
Though proof of sexual intercourse is essential for the offence of adultery, it can rarely
be proved by direct evidence. A story of seeing adultery through a keyhole is only an
imaginary one and it cannot be accepted.13 It has to be inferred from the facts and
circumstances of a case. However, the circumstances must be of such a nature that
they fairly infer that sexual intercourse took place.14
Evidence of opportunities sought for and obtained and of undue familiarities, which
point strongly to an inference of guilt, is sufficient to establish the fact of sexual
intercourse.15
The entire background and context of the case needs to be taken into consideration for
ascertaining sexual intercourse. Where, the parties concerned are sophisticated, no
10
Madhub Chunder Giri (1873) 21 WR (Cr) 13
11
Hari Singh Gour, "Penal Law of India", Law Publishers, Allahabad, volume 4, p 4656 (11th Edition, 1988)
12
AIR Manual, vol 29, pg. 901 (4th Edition)
13
Ramachandra v. Baburaj (2009) 4 KLT 744 (Ker).
14
Wj Philips Vs. Emperor AIR 1935 Oudh 506
15
Vedavalli v. MC Ramaswamy AIR 1964 Mys 280
conclusion can be drawn on the mere basis of opportunities for sexual intercourse.
Conclusion of adultery should not be reached by rash and intemperate judgments and
upon assumptions equally capable of two interpretations16
 Married Woman
The section indicts sexual intercourse by a man with a woman, who is the wife if
another man. The factum of lawful marriage must be strictly proved. Sexual
intercourse with a prostitute, an unmarried woman, or a widow, therefore, did not
amount to adultery under the Indian Penal Code. In a case it was held that even sexual
intercourse with a woman who lived with another man without marriage and has got
children from him does not amount to adultery, as she is not the “wife of another”.17
 Knowledge
In order to be brought within the purview of this section, a man should not only have
intercourse with a married woman, but must also “know” or have a “reason to believe”
that such woman is the ‘wife of another man’. This did not mean that he should that he
should know the identity of the husband. It is sufficient if he knows or has a reason to
believe that the woman is married. Such ‘reason to believe’ may arise from the fact
that in case of a Hindu woman, outward insignia of married life are exhibited by
wearing mangalsutra, the application of kumkum in the parting of hair, use of bangles,
toe rings, etc.
The prosecution should establish the presence of such knowledge or reasonable belief.
It constitutes mens rea and the prosecution should place sufficient material before the
court to prove that the accused had knowledge or reasonable belief that the woman
was married.
2.2 Connivance and Consent: Judicial Interpretation of

the word “Connivance”
The word Connivance in Section 497 of the Indian Penal Code means the willing consent to a
conjugal offence or a culpable acquiescence in a course of conduct reasonably likely to lead to
the offence being committed.18
Connivance is an act of the mind, it implies knowledge and acquiescence. As a legal doctrine,
connivance has its sources and its limits in the principle volenti non fit injuria, a willing mind,
this is all that is necessary.19
16
AS Puri v. KC Ahuja AIR 1970 Del 214, (1970) Cr LJ 1441 (Del)
17
Brij Lal Bishnoi v. State (1996) Cr. Lj 4286(Del)
18
Stroud’s Judicial Dictionary, Vol 1, p. 580
Connivance is a figurative expression meaning a voluntary blindness to some present act or
conduct, to something going on before the eyes, or something which is known to be going on
without any protest or desire to disturb or interfere with it.20 A court could not draw an
inference of connivance from the fact that the woman has been abandoned by her husband.21
The consent and connivance has to be proved and not merely pleaded because a complaint is
not treated as a plaint.22
2.3 Adultery should not constitute rape
The offence of adultery by its very nature connotes that it is sexual intercourse between the
consenting adults. The woman, although married, must be a willing partner to the sexual
intercourse. However, if the accused has sexual intercourse without the consent of the woman,
then it is much graver offence and would amount to rape. Here, the consent or connivance of
the husband is immaterial. Consent of the woman is primary. If her consent is absent, then it
will amount to an act of rape, punishable under Section 376 of the Indian Penal Code.
2.4 Wife not to be treated as an abettor
It is evident from plain reading of the Section that only a man can be proceeded against and
punished for adultery. Indeed the section provides expressly that the wife cannot be punished
even as an abettor. Thus this provision makes the wife completely immune to the charge of
adultery and she cannot be proceeded against for that offence.23
2.5 Intention Of Legislature Behind Not Treating Women

As Abettors
The contemplation of law is that the wife, who is having an illicit relationship with another
man, is a victim and not the author of the crime. A woman cannot be charged and prosecuted
for committing adultery. She is completely immune to the charge of adultery. Such an
exemption seems to be based on a set of realities and assumptions about women, about
women’s sexuality and about the relationships between women and men originated from the
traditional gender biased approach to, and unequal status of 'husband and 'wife' in the
marriage institution in India.
19
Boulting v. Boulting, (1864) 33 LJ (P M & A) 33
20
Munir, (1925) 24 ALJR 155
21
Pothi Gollari v. Ghanni Mandal, AIR 1963 (Ori) 60
22
Bharatlal v. Top Singh (1995) Cr LJ 3545 (M.P.)
23
Kalyani v. State, AIR 2012 SC 497
The authors of the Code were influenced by the then prevalent rampant child marriages and
polygamous marriages, and the privilege of the husband to fill his zenana with women, and
thereby make his wife to seek his attention with several rivals; for not punishing the infidelity
of wives!24 Other prominent assumptions about women for exempting women from liability,
it seems, are:
 a man is a seducer and the married woman is merely his hapless and passive victim,
and
 he trespasses upon the man's marital property, i.e., his wife by establishing a sexual
liaison with the married woman with her consent but without the consent or
connivance of her husband.
 the philosophy of the statutory provision seems to promote goodwill between husband
and wife and permit them to `make up' rather than to drag each other to the court
24
Macaulay, Macleod, Anderson and Millett, "A penal Code prepared by Indian Law Commissioners", Pelham
Richardson, 1838, Note ‘Q’, p. 175
Chapter 3
Judicial
Development
Leading to
Repugnancy of
Section 497,
IPC

Chapter III
Judicial Development leading to
repugnancy of Section 497, IPC
3.1 Sowmithri Vishnu Vs. Union of India25
In this case the husband filed for divorce on the grounds of adultery and desertion. During the
pendency of the divorce petition against the wife, the husband also filed a complaint against
one Dharma Ebenezer u/s. 497 of the Indian Penal Code charging him with having committed
adultery with the wife. Thereafter the wife filed a writ petition for quashing the complaint on
the following grounds
(1) That Section 497 of the Penal Code is violative of Article 14 of the Constitution, because
by making an irrational classification between men and women, it unjustifiably denies to
women the right which is given to men. This argument rests on the following three grounds-
(i) Section 497 confers upon the husband the right to prosecute the adulterer but, it
does not confer any right upon the wife to prosecute the woman with whom her husband has
committed adultery;
(ii) Section 497 does not confer any right on the wife to prosecute the husband who
has committed adultery with another woman; and,
(iii) Section 497 does not take in cases where the husband has sexual relations with an
unmarried women, with the result that husbands have, as it were, a free licence under the law
to have extramarital relationship with unmarried women; and
(2) That the right to life includes the right to reputation and therefore if the outcome of a trial
is likely to affect the reputation of a person adversely, he or she ought to be entitled appear
and to be heard in that trial and since Section 497 does not contain a provision that she must
be impleaded as a necessary party to the prosecution or that she would be entitled to be
heard, the section is bad as violating Art. 21 of the Constitution.
In upholding the Constitution validity of Section 479, in the Supreme Court observed that
Section 497 does not envisage the prosecution of the wife by the husband for adultery. Indeed,
the section provides that the wife shall not be punishable even as an abettor. No grievance can
then be made that the section does not allow the wife to prosecute the husband for adultery.
25
1985 CrLj 1302 (SC)
The Supreme Court in the aforementioned judgment laid down that the contemplation of the
law, evidently is that the wife who is involved in an illicit relationship with another man is a
victim and not the author of the crime. The offence of adultery as defined in Section 497, is
considered by the Legislature as an offence against the sanctity of the matrimonial home, an
act which is committed by a man, as it generally is.
Therefore those men who defile that sanctity are brought within the net of law. The law does
not confer freedom upon husbands to be licentious by gallivanting with unmarried women. It
only makes a specific kind of extramarital relationship an offence, the relationship between a
man and a married woman, the man alone being the offender.
An unfaithful husband risks, or perhaps, invites a civil action by the wife for separation. The
legislature is entitled to deal with evil where it is felt and seen most. A man seducing the wife
of another: Dealing with the defence argument that women, both married and unmarried, have
changed their life style over the years and there are cases where they have wrecked the peace
and happiness of other marital homes, the Court further observed: 'We hope this is not too
right but an under inclusive definition is not necessarily discriminatory. The alleged
transformation in feminine attitude, for good or bad, may justly engage the attention of law-
makers when reform of penal law is undertaken. They may enlarge the definition of 'adultery'
to keep pace with the moving times. But until then law must remain as it is. The law, as it is,
does not offend either Article 14 or Article 15 of the Constitution'.
Though except Mohammadans no community can now practice polygamy. nor is child
marriage legal, yet as a matter of fact Hindu women are still socially discriminated in a male-
dominated society on slightest possible whisper against her character and both polygamous
marriages and child marriages still take place in outlying rural areas either due to ignorance of
law or due to long prevailing social practices.
One feels that there is much weight in the observation of the Supreme Court when it says that
the change of female life style is not perhaps too right and the wife who is seduced is really
the victim and not the author of the crime. In this background perhaps time is not yet ripe to
punish women for adultery.
3.2 Yusuf Abdul Aziz v. State of Bombay26
In 1951, one Mr Yusuf Abdul Aziz, charged with adultery, contended before the Bombay
High Court that Section 497 IPC is unconstitutional as it, in contravention of Articles 14 and
26
1954 CrLJ 886 (SC)
15 of the Constitution, operates unequally between a man and a woman by making only the
former responsible for adultery. It, thereby, he argued, discriminates in favour of women and
against men only on the ground of sex.
Recalling the historical background of Section 497 and the then prevailing social conditions
and the sexual mores oppressive to women, and the unequal status of women, the High Court
of Bombay upheld the constitutional validity of the provision. Chagla, C.J., observed:
"What led to this discrimination in this country is not the fact that women had a sex different
from that of men, but that women in this country were so situated that special legislation was
required in order to protect them, and it was from this point of view that one finds in Section
497 a position in law which takes a sympathetic and charitable view of the weakness of
women in this country."
The Court also opined that the alleged discrimination in favour of women was saved by the
provisions of Article 15(3) of the Constitution which permits the State to make "any special
provision for women and children".
Yusuf Abdul, on appeal to the Supreme Court argued that Section 497, by assuming that the
offence of adultery could only be committed by a man and mandating a court that the
adulteress wife be not punished even as an abettor, offended the spirit of equality enshrined in
Articles 14 and 15 of the Constitution. Such an immunity assured to the adulteress wife (even)
for her willing participation in the adulterous sexual activity, it was argued, did amount to a
sort of licence to her to commit and abet the offence of adultery.
Vivian Bose, J., speaking for the Constitutional Bench (comprising M.C. Mahajan, C.J.,
Mukherjea, S.R. Das and Ghulam Hasan, JJ.) was not impressed by the appellant's
interpretation of Section 497 as well as of Articles 14 and 15. His Lordship, like Chagla, C.J.,
relying heavily upon Article 15(3), held that Section 497 is a special provision made for
women and therefore is saved by clause (3) of Article 159. To the argument that Article 15(3)
should be confined only to provisions which are beneficial to women and should not be used
to give them a licence to commit and abet a crime with impunity, the Apex Court responded
that they were unable to read any such restriction into the clause; nor were able to agree that a
provision which prohibits punishment is tantamount to a licence to commit the offence of
which punishment has been prohibited.
The Supreme Court went on to hold that Article 15(1), Constitution of India speaks of
discrimination on grounds only of religion, race, caste, sex, place of birth or any of them. If

religion race. caste, sex, place of birth is merely one of the factors which the Legislature has
taken into consideration then it would not be discrimination only on ground of that fact, but if
the Legislature has discriminated only on one of these grounds and no other factor could
possibly have been present, then undoubtedly the law would offend against Article 15(1).
What led to discrimination in Section 497 in this country is not the fact that women had a sex
different from that of men, but that women in this country were so situated that special
legislation was required in order to protect them, and it was from this point of view that one
finds it Section 497 a position in law which takes a sympathetic and charitable view of the
weakness of women this country. Therefore Section 497 does not contravene Article 15(1).
This decision was upheld by the Supreme Court five-member-Bench decision which held that
sex is sound classification and although there can be no discrimination in general on that
ground, the Constitution itself provides for special provisions in the case of women and
children by Clause (3) of Article 15. Articles 14 and 15 thus read together validate the last
sentence of Section 497 I.P.C. which prohibits women from being punished as an abettor of
the offence of adultery.
3.3 V. Revathi v. Union of India27
In this case the wife challenged the constitutional propriety of Section 198(2) read with
Section 198(1) CrPC, which, as mentioned earlier, empowered the husband of the adulteress
wife to prosecute the adulterer but does not permit the wife of an adulterer to prosecute her
promiscuous husband. Probably realising that the section also does not permit the husband of
the adulteress wife to prosecute her for her infidelity and recalling the ratio of Sowmithri
Vishnu case5, she asserted that whether or not the law permits the husband to prosecute his
disloyal wife, the wife cannot be lawfully disabled from prosecuting her unfaithful husband.
Such a statutory provision, which is premised on gender discrimination in contravention of

the gender equality guaranteed in the Constitution, is, the petitioner wife argued,
unconstitutional as it amounts to an "obnoxious discrimination
Thus, the question of vires of Section 497 I.P.C in the perspective of the law that Section 497
1.P.C. is so designed that a husband cannot prosecute the wife for defiling the sanctity of the
matrimonial tie by committing adultery and thus the law permits neither the husband of the
offending wife to prosecute his wife nor does the law permit the wife to prosecute the
27
AIR 1988 SC 835
offending husband for being disloyal to her again cropped up in a Supreme Court and section
497 I.P.C. was urged to be discriminatory.
The Supreme Court did not agree. Repelling the contention, the Court held that Section 497
I.P.C. and Section 198(1) read with Section 198(2) CrPC, go hand in hand and constitute a
legislative packet to deal with the offence committed by an outsider to the matrimonial unit
who invades the peace and privacy of the matrimonial unit and poisons the relationship
between two partners constituting the matrimonial unit.
The community punishes the 'outsider' who breaks into the matrimonial home and occasions
the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of
the spouses subject to the rider that the erring 'man' alone can be punished and not the erring
woman.
It does not arm the two spouses to hit each other with the weapon of criminal law. That is why
neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the
husband and send him to jail. There is no discrimination based on sex. While the outsider who
violates the sanctity of the matrimonial home is punished a rider has been added that if the
outsider is a woman she is not punished. There is thus reverse discrimination in 'favour' of the
woman rather than 'against' her.
The law does not envisage the punishment of any of the spouses at the instance of each other.
Thus there is no discrimination against the woman in so far as she is not permitted to
prosecute her husband. A husband is not permitted because the wife is not treated an offender
in the eye of law. The wife is not permitted as Section 198 (1) read with Section 198(2) does
not permit her to do so.
In the ultimate analysis the law has meted out evenhanded justice to both of them in the
matter of prosecuting each other or securing the incarceration of each other. Thus no
circumscribing has been practiced in circumscribing the scope of Section 198(2) and
fashioning it so that the right to prosecute the adulterer is restricted to the husband of the
adulteress but has not been extended to the wife of the adulterer. Thus Section 198(2) is not
vulnerable to the charge of hostile discrimination against a woman.

Chapter 4
Josephine
Shine v. Union
of India

Chapter IV
JOSEPH SHINE VS. UNION OF INDIA
In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. A
three-judge bench, headed by the then-Chief Justice of India, Dipak Misra, had referred the
petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.
The petitioners wanted certain problems with Section 497 to be addressed:
 adultery law is made gender neutral. This is because the law calls for the man to be
punished in case of adultery, but no action is suggested for the woman
 As per Section 497, a woman cannot file a complaint against her husband for adultery
because there is no such legal provision.
 Women are treated as an object under the adultery law because according to section
497 if the husband agrees, the act is not a crime.
While hearing the matter previously, the court had observed that the law seemed to be based
on certain “societal presumptions”. In four separate but concurring judgments, the court
struck down the law and declared that the husband cannot be the master of his wife. The five-
judge bench comprised Chief Justice Dipak Misra and Justices R F Nariman, A M
Khanwilkar, DY Chandrachud and Indu Malhotra.
The judgment held the following things –
4.1 SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY

INVALID AS IT IS VIOLATIVE OF ARTICLES 14, 15 & 21 OF
THE CONSTITUTION OF INDIA
Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the
encroachment on her right to life and personal liberty by adopting a notion of marriage which
subverts true equality. Equality is subverted by lending the sanctions of the penal code to a
gender-based approach to the relationship of a man and a woman. Sexual autonomy is a value
which is an integral part and falls within the ambit of personal liberty under Article 21 of the
Indian Constitution. Along with other things, it is very important to recognise the expectations
one has from a relationship and to acknowledge them. One of these expectations is that each
will provide the same element of companionship and respect of choices. Respect for sexual

autonomy is established only when both the spouses treat each other with equality and
dignity.
This section is a denial of substantive equality in that it reinforces the notion that women are
unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal
order which regards them as the sexual property of their spouse.
In this way, it is violative of Article 14. It is based on gender stereotypes and violates the non-
discrimination clause of Article 15. Besides, the emphasis on the element of connivance or
consent of the husband tantamount to the subordination of women. Therefore, it clearly
offends Article 21 of the Constitution.
4.2 SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE
A crime is something which is committed on the society as a whole, while adultery is more of
a personal issue. Treating adultery as a crime would tantamount to the State entering into a
real private realm. Adultery doesn’t fit into the concept of the crime as that would otherwise
invade the extreme privacy sphere of a marriage. However, it continues to stand as a civil
wrong and a grounds for divorce. What happens after adultery is committed should be left to
the husband and wife to decide as it is something which should only involve their personal
discretion. It is difficult for the court to construe the different circumstances which have led
them to this stage. Hence, declaring adultery as a crime would somehow creep injustice into
the system.
4.3 HUSBAND IS NOT THE MASTER OF HIS WIFE
The judgement places reliance on the fact that women should not be considered as the
property of their husbands or fathers, for that matter, anymore. They have an equal status in
society and should be given every opportunity to put their stance forward.
4.4 SECTION 497 IS ARBITRARY
Throughout the judgment, it was pointed out that the nature of Section 497 is arbitrary. For
one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his
wife have an affair with someone else. Rather, the judgment points out, it serves to preserve
the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a

complaint against her husband or his lover. There are no provisions to deal with a married
man having an affair with an unmarried woman or a widow.
4.5 ANALYSIS OF THE JUDGMENT
4.5.1 Direct and indirect discrimination
First and significantly, the law on adultery only punished men for the commission of adultery,
thereby penalising only one of the parties to the same conduct.28
Secondly, the provision criminalised sexual intercourse with married women alone, as
opposed to unmarried women. Therefore, if the husband engaged in a sexual affair with an
unmarried woman, Section 497, IPC would simply not be attracted.
Thirdly, as soon as the consent of the husband is given for a particular sexual act, it no longer
is an offence of adultery.
The argument of the Petitioner based on Articles 14 and 15 was two-pronged
 first, by punishing men alone and excluding women, the law is apparently arbitrary,
making the provision intuitively vulnerable to constitutional scrutiny. Even though
admittedly, adultery can only be committed by the participation of two persons, one is
penalised and the other is exempted from any criminal liability. This is a case of a
straightforward direct discrimination.
Notably, the judgment has very little to offer on direct discrimination against men,
despite it being the principal ground of attack. The concurring opinion of Nariman J. does
emphasise on the ‘manifest arbitrariness’ of the provision, a principle expanded in Shayara
Bano v. Union of India 29. However, a comprehensive evaluation of how the provision falls
prey to a classic case of discrimination does not come through in the various opinions.
 Secondly, the law discriminates against women in two peculiar ways. One of them is
by depriving them of sexual autonomy as enjoyed by a married man. For example, a
married man can have uninhibited sexual relations with unmarried women. At the
same time, a married woman is prevented from entering into any external sexual affair
by virtue of the adultery law. The law acts as a ‘prior restraint’ on her lover who has to
28
There are other provisio ns in the Indian Penal Co de, which punish only men for a particular
offence such as sectio n 498A penalising only the husband (or his relative) for cruelty.
Ho wever, sectio n 497 stands o n a different footing since ad mittedly, the sexual cond uct is
engaged b y two parties
29
(2017) 9 SCC 1
fear severe criminal consequences. This is so even in the case of de facto broken
marriages where the parties have not obtained a divorce. This is a serious irregularity,
which the judgment does not address with considerable appeal, barring the exception
of Chandrachud J.
The other mode of discrimination is at the heart of all the four separate opinions. This
disparity is more interpretative and less direct. The idea of the law penalising only the third
party to the marriage when adultery is committed by a married woman is based on the
assumption that the wife is the ‘property’ of the husband who is her sole and exclusive owner.
Therefore, the intruder is punished similar to a trespasser.
This interpretation is supplemented by the words of the provision in Section 198(2) of the
Criminal Procedure Code which suggests that any person having ‘the care of the woman’
has the locus to initiate a complaint. This interpretation in fact, was the focal point of the
popular and the media narrative on Joseph Shine.
This peculiar type of discrimination is fundamentally different from the conventional

approaches in the law of anti-discrimination. For example, in Anuj Garg v. Hotel
Association of India 30 , the impugned law prohibited employment of women (and men
below a certain age) in the premises where liquor and drug are consumed by the public. Here,
the sexual stereotype associated with women was that of being required to stay away from
intoxication. However, it is not only this stereotype that operated against women, but also the
ardent refusal to extend equal employment opportunities to women which together constituted
dual discrimination.
The significance of Joseph Shine lies in the fact that it essentially holds that this second
limb is often indispensable for assailing a stereotypical law. It indicates that a law can
arguably be discriminatory merely because it relies on societal stereotypes, which do not fit
the Constitutional framework – an approach that could fundamentally alter how anti-
discrimination law is structured in India.
By this suggestion, Joseph Shine is signifying what the expressive function of the law
requires. The idea is that law is not only an instrument of regulation or deterrence, but is a
tool of expression as well. Therefore, it matters what the text of the law says. Section 497
ostensibly failed in duly observing this function, and although it took more than sixty-five
years, the constitutional court ultimately had to recognise this failure.
30
(2008) 3 SCC 1
4.5.2 The doctrine of principled criminalisation
The connection between constitutional law and criminal law is often overlooked. In India, the
Penal Code was enacted much before the Constitution came into force. This necessitates the
re-shaping of penal laws so that they can be infused with fundamental constitutional values.
Only recently have Constitutional courts begun to shape this process of constitutionalising
criminal law.
In this context, a significant contribution of Joseph Shine to our constitutional jurisprudence

is the doctrine of principled criminalisation. During the course of the proceedings, one of
the main arguments of the Petitioner was that Section 497 is a case of ‘unprincipled
criminalisation’, where the State has criminalised a particular conduct without sufficient
reasons to do so. This argument was based on Mill’s harm principle31. The classic harm test
requires that power should be exercised over any member of a civilized community, against
his will, only for the purpose of preventing harm to others.
In the context of criminalisation, mere harm is not sufficient; harm has to effectively mean
‘judicially’ or ‘legally cognizable harm.’ Incidentally, one of the aspects often overlooked
about Gobind v. State of M.P.32 is that the Court specifically referred to the harm principle
in the context of privacy. It was held:
“There are two possible theories for protecting privacy of home. The first is
that activities in the home harm others only to the extent that they caus e offence
resulting from the mere thought that individuals might he engaging in such
activities and that such ‘harm’ is not constitutionally protective by the state. ”
Therefore, when adultery does not cause a legally or judicially cognizable harm, there is no
reason for the State to interfere with it. The CJI, (on behalf of Justice Khanwalikar and
himself) observed that “adultery does not fit into the concept of a crime” 33
and that
conceiving so would be ‘retrograde’34. However, except for reiterating certain definitions of
31
Thulasi K. Raj and Maitreyi Hegde, "Marriage, Morals, and the Constitution: Joseph Shine v. Union of India",
NLSI Review, Part II
32
(1975)2 SCC 148
33
Para 49 of Joseph Shine vs. Union of India
34
‘crime’, the principal judgment and the two concurring opinions do not discuss in detail what
reasons could the State legitimately espouse for criminalisation.
The concurring opinion of Justice Malhotra makes a happy exception in this regard. For
something to be made criminal, he observed, it has to be a public wrong, reiterating Mill’s
harm principle. She has also noted that the State must follow the minimalist approach in the
criminalization of offences.

Chapter 5
Critical
Analysis

Chapter V
Critical Analysis
An important argument of the Petitioner revolved around how the impugned provisions
violated the fundamental right to privacy under Article 21 by interfering with the right to
voluntary, consensual sexual intercourse between adults. This submission proceeded in three
steps –
first, the constitution guarantees a right to privacy
Secondly, the right to privacy necessarily contains within it the right to sexual autonomy.
The right to privacy is understood as the freedom of personal choice in matters of marriage
and family life35, the decision whether to use or not use contraceptives36, and the acceptance
of the fact that different individuals will make different choices37
The third step, the crucial point in the argumentation was that there is no good reason to
discriminate between sexual intercourse outside or inside marriage and between sex based on
the marital status of both or either of the individuals. Regardless of how abominable the State
thinks extra-marital sexual conduct is, that is no reason to criminalise conduct or to constitute
a ‘compelling state interest.’ The right to extramarital sexual conduct stands protected by the
“rights to privacy and intimate association.38.
It was categorically argued that the right to sexual freedom necessarily includes the right to
choose one’s sexual partner, even when one person is legally married to another. Penalising
the adulterous relationship infringes the right to choose the sexual partner or the right to make
one’s sexual preferences. S.497 therefore violates the fundamental right to sexual privacy.
Once it is convincingly established that there is a right to privacy to engage in extra-marital
conduct, it follows that the state cannot criminalise it except by demonstrating permissible
grounds for infringing with a fundamental right. Penalising an action, especially when it is
liberty infringing is flatly unconstitutional.
However, the privacy concerns were insufficiently addressed by the Court. The judgment by
CJI Misra, and Khanwilkar J. did hold that “if (adultery) is treated as a crime, there
would be immense intrusion into the extreme privacy of the matrimonial sphere ”39.
35
Cleveland Board of Education v. LaFleur , 414 U.S. 632 (1974)
36
Griswold v. Connecticut, 381 U. S. 479
37
Bowers v. Hardwick, 478 U.S. 186 (1986)
38
Janelle Perez v. City Of Roseville US Court of Appeals, No. 15 -16430, 2018
39
However, the crucial link between the fundamental right to privacy and criminalisation seems
apparently lacking. The majority and the concurring judgments, with the exception of
Chandrachud J. have a visible hesitation to emphatically hold that there is a fundamental right
to consensual sex outside marriage. However, no other principle can satisfactorily explain the
constraint on the state to criminalise a conduct.
On individual autonomy, there is an enriched jurisprudence developed by the constitutional

courts in India. The right to autonomy was consistently held to be an inalienable part of right
to life under Article 21 . In Navtej Singh Johar 40, the Supreme Court recognised that sexual
autonomy is protected by our Constitution. Interestingly, several of the references 41 on
privacy in Joseph Shine pertain to the right to dignity of the individual, which is quite
different from an independent right to sexual autonomy and choice.
Hence, even when the greater part of the judgment elaborately focused on the right to dignity,
it failed to explore the violation of right to one’s sexual autonomy as part of right to dignity.
Therefore, the Court could have developed a sophisticated theory of sexual privacy, taking
cue from Navtej Singh Johar and a well-established foreign jurisprudence. This absence of
a detailed exploration on the right to privacy remains a fatal shortfall of the judgment.
Various methods are adopted for testing the constitutionality of criminal laws across different
jurisdictions. The test adopted by the Constitution Court of South Korea is instructive in this
regard. When the criminal law on adultery was challenged as violative of the constitutional
rights of privacy and self-determination, the Court successfully examined the impugned
statute in terms of appropriateness, effectiveness and side effects of the criminal law. It also
considered the nature and excessiveness of the criminal punishment. The Court evolved
questions on how the State can enter into the private realm of an individual’s life, what is the
outer limit of the right to privacy, and to what State intrusion is permissible. Further, the
adverse impact of criminal penalty on matrimonial homes was also considered. Such a
systematic evaluation is absent in Joseph Shine. A great part of the judgment failed to
employ an independent evaluation methodology – a proportionality type test – to examine the
impugned statutory provisions.
40
Navtej Singh Johar v. Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016
41
Paras. 25-41 of Joseph Shine vs. Union of India
5.1 AFTERMATH: RETROSPECTIVE EFFECT GIVEN TO
JOSEPH SHINE VS. UNION OF INDIA
In a recent case42 in Bombay High Court a Single Judge Bench allowed revision petition and
set aside appellant’s conviction under Section 497 IPC in light of Supreme Court decision
in Joseph Shine v. Union of India.
The applicant was alleged to have had sexual relations with complainant’s wife. He was tried
and convicted by the trial court for committing the offence of adultery under Section 497 IPC.
His appeal before the Additional Session Judge was dismissed. Hence, then he filed the
present application for revision. It was prayed that in light of decision in Joseph Shine where
Supreme Court had held Section 497 to be unconstitutional, the present application ought to
be allowed.
The High Court relied on A.S. Gauraya v. S.N. Thakur,43 wherein it was held that a law
declared by Supreme Court applies even to pending proceedings with retrospective effect.
Hence, the Court gave retrospective effect to the law laid down in Joseph Shine to the
proceeding pending before it. Therefore, in view of Joseph Shine, the conviction and
punishment awarded to the applicant under Section 497 was quashed and set aside.
42
Rupesh v. Charandas,2018 SCC Online Bom 6292
43
(1986) 2 SCC 709
Chapter 6
Comparative
Study

Chapter VI
Comparative Study
6.1 UNITED STATES OF AMERICA
Laws against adultery in the United States have deep puritan roots, stemming from England’s
ecclesiastical courts prior to founding the country. Since the colonial era, adultery in the
United States was considered a wrong against morality and chastity, meriting civil and
criminal consequences. In fact, Puritan colonialists in New England were so concerned with
England’s rampant “moral corruption,” they made adultery with a married woman a capital
offense. Most early state jurisdictions followed suit by criminalizing adultery, though not
always as a capital offense. Prosecution of adulterers declined significantly after the
eighteenth and nineteenth centuries; statutes went generally unenforced, and the discovery of
an adulterous affair was occasionally used as blackmail, which led the American Law
Institute to recommend the decriminalization of adultery across the board in 1962.44
However, moral opposition to adultery lived on in the law. Many states not only maintained
their criminal adultery sanctions, but also created civil penalties for the act. For example,
because a wife was considered her husband’s property, adultery was a civil injury to an
innocent husband45: having sexual relations with another man’s wife was a trespass on his
property despite whether the act was forced or consensual, as it was assumed that “respectable
women” would never consent to be tainted by sexual impurity. Alternatively, the common
law was concerned with “foisting spurious offspring upon her unsuspecting husband” and the
effects this would have on inheritance and property rights, illuminating how adultery put men
at risk of raising and paying for a child not his own.
Thus, civil remedies to address these issues were available to husbands into the twentieth
century: claims of trespass, torts of outrage, and alienation of affection and criminal
conversation gave husbands the opportunity to receive monetary damages from his wife’s
paramour. As time progressed, courts steered away from viewing sexual purity and the rights
of husbands to their wives as legitimate causes of action, so over forty states instated statutory
44
MODEL PENAL CODE §213.6(3) (AM. LAW INST., Proposed Official Draft 1962) (note on adultery and
fornication)
45
McClure’s Ex’rs v. Miller, 11 N.C.(1 Hawks) 133, 140 (1825) (“[In a case of adultery], the wife, who is a
servant, consents, and yet her husband may have trespass; it may be answered that the case is one sui generis; the
husband has, so to speak, a property in the body, a right to the personal enjoyment of his wife; for an invasion of
this right the law permits him to sue as husband[.]”). The law did not care about the woman’s consent to the
sexual acts as the husband had an “interest” in her—her consent was considered “not competent.”
bars against these “amatory claims” (commonly known as Heart Balm Acts) against a
spouse’s paramour.
Nonetheless, the contemplation of adultery as an injury to a spouse is still relevant in the US

legal system. Some states, such as North Carolina, still allow amatory claims or claims of
negligent or intentional infliction of emotional distress to address a spouse’s adultery, in
which the adulterous spouse can be held liable for damages as well. The laws are now
defended as a “device to preserve marital stability,” rather than a way to protect the chastity of
women.
Even in states that disallow such claims, courts have repeatedly acknowledged the emotional
harm experienced from adultery. Thus, penalties for adulterous spouses represented a “victim-
oriented approach” to addressing these injuries. Though the definition of adultery varies
slightly in each jurisdiction, it is a ground for divorce in thirty of the thirty-two states that
continue to recognize a fault based system.
The potential repercussions of an adultery-related fault divorce (or even a showing that one’s
spouse was unfaithful in a no-fault divorce) were and continue to be largely negative toward
the adulterous spouse, and even more toward an adulterous wife due to the nature of marital
dependency in the United States. First, depending on the jurisdiction, adultery may affect
spousal support (alimony). In four states, adultery is a complete bar to alimony, and some
states use adultery as a factor in determining how much alimony to award a spouse. Adultery
may also influence the division of marital property.46 Thus, an aggrieved spouse may receive
the advantage of limiting support for the adulterous spouse if the adulterous spouse is the
under-earner. As women are more likely to be dependent spouses or in need of assistance
after divorce, this fault bar policy economically disadvantages women in divorce proceedings.
Second, a wife’s adultery was historically seen as proof of parental unfitness in child custody
proceedings: if a mother’s life is “dominated by the carnal desires of the flesh,” it would
influence the child’s life and character.
Twenty states continue to keep adultery on the books as a criminal provision47 with
punishments ranging from a ten-dollar fine to felony charges, but adultery is rarely prosecuted
46
Halleman v. Halleman, 379 S.W.3d 443, 452 (Tex. App. 2012) (noting “fault of the breakup of the marriage”
as a factor in determining division of marital assets); Smith v. Smith, 433 S.E.2d 196, 221 (1993) rev’d in part,
444 S.E.2d 420 (1994) (noting that marital misconduct that dissipates or reduces the value of marital assets for
non-marital purposes can be considered when dividing marital property)
47
States include Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah,
Virginia and Wisconsin. The offense is generally defined as sexual relations between a married person and a
third party that is not his/her spouse
in the United States.48 Nevertheless, the United States’ de facto lack of criminal regulation
does not imply a moral or cultural approval of adultery. In fact, it receives near unanimous
disapproval from the public: ninety one percent of Americans find married people having an
affair “morally wrong,” a rate nearly twice as large as it was forty years ago.
Thus, the continued regulation of adultery acts primarily as “morals legislation” and is aimed,
though ineffectively, at deterring immoral behavior. States and supporters justify a continued
prohibition of adultery as protecting innocent spouses from harm and protecting the public
institution of marriage. Adultery is still believed to harm the fabric of society and penalizing
this behavior attempts to prevent such deterioration from occurring. It is this moral
disapproval conflated with the distinctly patriarchal legal history described above that causes
continued discrimination toward adulterous women and mistresses in American society.
6.2 SOUTH AFRICA
“South African law adopted the Roman-Dutch common-law principles in the seventeenth
century: adultery was a crime and could result in a delictual damages claim by the husband,
but not by the wife.”49“The husband lost his claim for damages (and divorce) where he
condoned her adulterous actions, where there was connivance between the spouses, or where
he himself committed adultery.”“The amount of damages was affected by the husband's
treatment of his wife prior to the adultery: where he had failed to treat her with kindness and
consideration, it was a key element in the estimation of the damages.”
“Adultery was a ground for divorce, but it was uncertain in earlier years whether a divorce
was a prerequisite for a claim for damages by the husband although the action could be
brought either together with the divorce, or in a simultaneous separate action.”“It was
uncertain whether the Roman Dutch rule that adulterers were not allowed to marry each other
became part of South African law.”
“In the twentieth century the courts amended the common-law principles radically.”“The
crime of adultery was abolished in 1914 by the Appellate Division (as it then was) in the case
of Green v Fitzgerald.50”“Adultery is defined as voluntary sexual intercourse between a
married person and someone other than the spouse, and as from 2006 could be committed by
48
Ethan Bronner, Adultery, an Ancient Crime That Remains on Many Books, N.Y. TIMES (Nov. 14, 2012),
http://www.nytimes.com/2012/11/15/us/adultery-an-ancient-crimestill-on-many-books.html
49
Farmer v Farmer (1850-1852) 1 Searle 227
50
Green v Fitzgerald 1914 AD 88 at 102, 119
same-sex and other couples who had entered into a civil partnership in terms of the Civil
Union Act.”51
“With regard to the claim for damages against the third-party adulterer, the courts in 1927
noted that a divorce was not a prerequisite for such a claim and thus separated the two
actions.52”“The basis for this claim by the innocent spouse remained personal injury
or contumelia suffered and loss of comfort, society, and services.”“In recent cases, the courts
have extended the grounds for the claim to include, together with the infringement of feelings,
feelings of piety.53”
“Before 1979, adultery also played a significant role in the South African divorce laws,
because it was one of only three grounds for a divorce.54”“The divorce system was fault-based
at the time, and divorce could result in financial penalties for the adulterous spouse at the time
of divorce, in accordance with the principle that “a spouse should not be allowed to benefit
financially from a marriage which has been wrecked through his matrimonial
delinquency”.” “After 1979 a “no-fault”-system was introduced, and in terms of the Divorce
Act, 70 of 1979 adultery is no longer a ground for a divorce.” “It is merely one of the
guidelines that may be used to prove that the marriage has broken down irretrievably.55”
“From the above it is clear that the legal provisions on adultery have undergone substantial
changes in the State of South Africa”. Adultery is no longer a crime, and vis-á-vis the divorce
law and delictual damages claims became gender-neutral more than sixty years ago.
6.3 ENGLAND
“It should be noted that canon law56 also influenced English law during the pre-middle ages
and was enforced in both civil and ecclesiastical courts57.”“Adultery was regarded as a sin by
the Christian church and that punishment for it did not include the possibility of death,
although monetary damages were paid to the husband whose adulterous wife bore the
adulterer's child.”"It was not until the twelfth century that the doctrine of strict indissolubility
51
Act 17 of 2006 (United Kingdom)
52
Seroot v Pieterse 2005 Juta Daily Law Reports 0821 (T) in par [10]
53
162 Seroot v Pieterse 2005 Juta Daily Law Reports 0821 (T) in par [10]
54
The grounds were based on Roman-Dutch law (adultery and malicious desertion) as amended by s 1 of the
Divorce Law Amendment Act 32 of 1935 which added the further grounds of incurable insanity and habitual
criminality. See HR Hahlo The South African Law of Husband and Wife 5 ed (Cape Town, 1985) at 330
55
Section 4(2)(b) of the Divorce Act
56
Canon law (Roman Catholic Law) is a set of ordinances and regulations made by Church leadership, for the
government of a Christian organization or church and its members.
57
tribunal set up by religious authorities to deal with disputes among clerics or with spiritual matters involving
either clerics or laymen
of marriage was enforced in England by canon law in the Courts of the Bishop", and by the
thirteenth century adulterers were not allowed to remarry.”
“The ecclesiastical courts that operated from the sixteenth century had wide jurisdiction and
could hear charges relating to the crime of adultery.” “In those courts, punishment for
adultery included public penance in a penitential white sheet before the parish congregation.”
“Some regarded the punishment for adultery as insufficient”
“One can trace a long line of failed parliamentary Bills attempting to impose stiffer
punishments for adultery: attempts were made in 1543, 1549, 1576, 1601, 1604, 1614, 1621,
1626, 1628 and 1629 to bring in such measures.”“The stream of moral reform strengthened in
the 1640s, with Bills against adultery surfaced in 1641, 1644, 1647, 1648 and 1649.58”
“The aim of the Adultery Act of 1650, which applied until the Restoration, was to suppress
the detestable sins of inter alia adultery.”“Conviction led to the death penalty, although
certain exceptions were noted, namely where the man did not know that the woman was
married; where the woman's husband had been absent for three years or was reputed to be
dead.” “It is uncertain how strictly this statute was enforced.”
“In England, by the beginning of the sixteenth century, a flaw could be found in almost any
marriage, resulting in an annulment, which made it possible for adulterous spouses to
remarry.” “This came to an end when in 1563 the Council of Trent reformed the Canonical
Divorce Law and the Marriage Act of 1540 and confirmed the indissolubility of a
consummated marriage between lawful persons.59”
“Between 1660 and 1857 it was not possible to obtain a divorce through the civil courts, since
these courts refused to invade the jurisdiction of the church.”“In addition, the ecclesiastical
courts had no power to dissolve a marriage.22”“The only way to obtain a divorce was through
an Act of Parliament and adultery was the sole ground for it.”“This made divorce rare and
expensive, cumbersome and intricate; and originally possible only for the aristocracy and the
wealthy.”“To obtain such an Act of Parliament, there were two prerequisites: a divorce
order a mensa et thoro60 from the ecclesiastical court and a successful claim for damages: a
58
Laws on adultery: comparing the historical development of South African common-law principles with those
in English law Marita Carnelley Professor, School of Law, University of KwaZulu-Natal
59
Ibid
60
An obselete form of divorce order which did not end the marriage but allowed the parties to reside separate; in
effect, a legal or judicially-sanctioned separation of two married persons.
third party "trespass" suit against the adulterer for criminal conversation.”“This requirement
did not apply to any female petitioners.”
Matrimonial Causes Act, 1857 – “This Act for the first time made possible secular divorces
by court order.”61 “Ecclesiastical jurisdiction over matrimonial matters was abolished and
effectively transferred to the Court for Divorce and Matrimonial Causes.”
“For a man to obtain a divorce, adultery by his wife was sufficient reason, but section 27 of
the act determined that if a wife wanted to obtain a divorce, she had to prove, in addition to
adultery by her husband, an additional factor.”“The additional factor could be aggravating
conduct such as incest, bigamy, cruelty, desertion, sodomy or bestiality.”“Nor could a divorce
be obtained if the petitioner was an accessory to the adultery or condoned it.”
“In addition to the above, section 33 determined that since a wife's adultery caused injury to
the husband, it entitled him to claim compensation from the adulterer.” “The wife did not
have a similar claim.” “The procedure remained the same as that in previous actions for
criminal conversation, so that adultery continued to resemble the civil wrong of trespass, and
retained the impression that the wife was the property of the husband.”
“There were two main criteria that determined the amount of damages that have always been
compensatory only, and not exemplary or punitive. The grounds on which damages are given
are: (1) the actual value of the wife lost; (2) injury to the husband's feelings, the blow to his
honour and hurt to his family-life abilities".”
“The value of the wife depended on her pecuniary worth, her assistance in the family business
and her abilities as a housekeeper.”“The consortium aspects depended on her "purity, moral
character and affection, and her general qualities as a wife and a mother".”
The twentieth century – “In 1909, the Second Royal Commission on Divorce, the Gorell
Commission, proposed that the double standards should be dropped and that the law should
treat divorcing men and women equally.”“The same proposal was made in 1912 by the Report
of the Royal Commission on the basis that there was no adequate reason for the dual
standard.”“Equality between the genders was only realised in 1923 when the Matrimonial
Causes Act, 1923 made adultery simpliciter available to both spouses instead of only the
husband.”
61
Section 31 of the Matrimonial Causes Act, 1857
“In 1925 the third-party action was separated from the divorce action.”“These enactments
were consolidated and reincorporated in the Matrimonial Causes Act, 1950 and 1965.”“It was
only in 1970 that article 4 of the Law Reform (Miscellaneous Provisions) Act of 1970 finally
abolished the third-party damages claim in tort altogether.”
“Adultery remained a ground for divorce.”“The problem remained that for a divorce action to
succeed, one of the spouses had to be regarded as the guilty party and the other as innocent,
and that no divorce order could be obtained if the parties were seen to be conniving,
pandering or acquiescing to adultery to obtain a divorce.”“Guilt, and thus often adultery,
influenced possible post-divorce maintenance orders, since only the innocent spouse was
entitled to a maintenance order.”
“Numerous attempts were made to amend the law, namely in 1950, 1955 and 1968.”“It was
only after the Law Commission Report of1966 that the Divorce Reform Act of 1969 was
passed, introducing the no-fault divorce concept of "irretrievable breakdown" of the marriage
as an independent ground for divorce.”
“The Matrimonial Causes Act of 1973 still included adultery as possible evidence that a
marriage had broken down irretrievably, but this remnant was deleted from the Family Law
Act, 1996,62 focusing on the agreement between the parties.”“All references to adultery were
finally deleted from the legislation.”
6.4 OTHER COUNTRIES
6.4.1 Pakistan and other Islamic Countries
In Pakistan adultery is viewed as a heinous crime and both men and woman are subjected to
punishment which may extend to the death sentence. In 1987 a Pakistani Court of Session
sentenced a couple to be buried up their necks and stoned to death in public for committing
adultery.63 In 2002, a wife who committed adultery was sentenced to death by stoning in
North West Frontier province for adultery.
62
Section 5 of the Family Law Act, 1996
63
Hindustan Times, (November 10, 1987, p 11 Delhi Edn.) Mohammuad Sarwar, aged 35, had eloped with
Shahida, aged 26, a few years ago and the couple were later found to be living together in Lahore. Police, on a
report from Shahida’s husband, Khushi Mohammad, arrested them are were prosecuted.
Perhaps such a severe sentence for adultery is awarded in Pakistan since the Islamic Penal
Law (Huddod Ordinance) was introduced in 1980. In some other Islamic Countries, such as
Saudi Arabia, Iran, Egypt, etc., also like Pakistan, adultery is punished severely.
6.4.2 Malayasia, Singapore and Hong Kong
In Malaysia, which is a predominantly a Muslim country, adultery is not an offence under

Penal Code. It may be because of influence of the neighboring countries like Singapore and
Hongkong where adultery is not punishable.
6.4.3 Philippines
It is of interest to note that Philippines, which is a catholic dominated Christian country, it is

the married woman and not the husband, who is held liable for adultery. Article 333 of the
Revised Penal Code Act No. 3815 states: "Who are guilty of adultery.-Adultery is committed
by any married woman who shall have sexual intercourse with a man not her husband and by
the man who has carnal knowledge of her, knowing her to be married, even if the marriage is
subsequently declared void." Adultery shall be punished by prison correctional in its medium
and maximum periods.
However, in case a married man keeps a concubine, both man and concubine are liable to
punishment. Article 334 says: "Concubinage.- Any husband who shall keep a mistress in the
conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any other place shall be punished by
prison correctional in its minimum and medium periods. The concubine shall suffer the
penalty of destierro."
6.4.4 Greece
In the Greek Penal Code both men and women are equally liable for punishment for adultery.
A woman can't escape punishment like the old law in India. Article 35 of the Greek Penal
Code States:
'A spouse who commits adultery and the offending partner shall be punished by imprisonment
for not more than one year. Prosecution shall commence only upon the complaint of the
injured party'

6.4.5 Argentina
Article 118 of the Argentina Penal Code provides punishment for adultery which may extend
from one month to one year. The Act makes following persons liable for adultery viz.,
 A married woman who commits adultery.
 The person who commits adultery with a married woman.
 A married man who keeps a concubine either in his matrimonial home or anywhere
else
 Such concubine of a married man

Chapter 7
Conclusion

Chapter VII
CONCLUSION
The criminal law on Adultery in India was covered by Section 497 of the Indian Penal Code
which defined and punished 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 case
the wife shall not be punishable as an abettor.
The provision under the IPC before the aforementioned landmark decision was so framed that
a husband could not prosecute the wife for breaking the sanctity of the matrimonial home by
committing adultery with another man but he could prosecute that another man with whom
his wife committed the offence. Thus the law neither permitted the husband of the offending
wife to prosecute his wife nor did the law permit the wife to prosecute the offending husband
for being disloyal to her. Also, the law did not provide remedy to a woman whose husband
has committed adultery with another woman, which is also violation of the gender neutrality
clause provided in the Indian Constitution. The law was challenged several times but it remain
unchanged.
The very first landmark judgment regarding the constitutional validity of the law of adultery
was the case of Yusuf Abdul Aziz vs. State of Bombay. Herein, Section 497 was challenged
to be ultra vires the Article 14 and 15 of the Indian Constitution. The Apex court held that
Article 14 is a general provision and should be read in concert with other provisions set as
exception to the fundamental rights. It was held that the relevant provisions read together
validate the provision under the IPC.
In V. Revathi vs.Union of India, the constitutional validity of clauses 1 and 2 of Section 198
of the Code of Criminal Procedure, 1973 was challenged. The argument was that it just
permitted the spouse of the adulterer wife to sue the miscreant however did not allow the wife
of the adulterer husband to do so. The court held that the law did not permit both husband and
wife to indict one another under criminal law and it also laid that a wife cannot be a
wrongdoer.
The provision was gender bias mainly because it did not allow the wife to prosecute the
woman with whom her husband engaged into an adulterous relation though it allowed the

husband to prosecute the man who committed adultery with his wife. The law considered
woman to be a victim and not an author of the crime. The court missed out on the point that
the wife had no relief under criminal law though the same provision was given to the
husband, and in case where woman was unmarried the woman could not be prosecute
altogether. This was a clear violation of the principle of natural justice.
The archaic law considered only men as offenders on the ground that the women were
physically or socially incapable of committing such an offence. Both the sexes were not on an
equal footing. Therefore, such kind of provision was discriminatory and used to protect
women arbitrarily.
Article 15(3) of the Constitution gives the Parliament the power to make special laws for
women but the provision nowhere says that such laws made must be inherently bias against
men. It cannot be implied either because had it been so the entire purpose of the equality
clause under the Constitution would be refuted. Hence, the provision is nothing but a violation
of the equality clause under the Indian Constitution.
Amendments to the law were recommended by the 42nd Law Commission Report and the
Malimath Committee Report of 2003 but the law remained unchanged until 2018 when in the
landmark decision of Joseph Shine Vs. Union of India the Supreme Court struck down the
archaic provision and held it to be discriminatory. In the emerging liberty
jurisprudence, Joseph Shine will remain unquestionably prominent. It asserts that the State
cannot impose moralistic notions of right and wrong on individuals. It clearly bifurcates
subjective popular morality from constitutional morality.
7.1 Concluding Remark
Indian culture is rich and diverse and as a result unique in its very own way. Western culture
has had quite an influence on Indian families. The core Indian religious traditions and beliefs
remain the same. However the lifestyle has changed. The western culture has brought with
itself, its pros and cons. The rates of failed marriages are on the rise. Infidelity and having
multiple paramours have become a common place. Amidst this organised anarchy acts of
passions cannot and should not be punished. It resonates with Dale Carpenter’s comment64:,
“the deeper answer is that Lawrence, in all its emotional, social, and legal complexity, is a
reflection of life itself. People do indeed lead complex lives. They fall in love, cheat, lie, drink.
64
Dale Carpenter on Lawrence v. Texas 539 U.S. 558 (2003), where sexual autonomy was
constitutionally recognized : taken from Marriage, Morals, and the Constitution: Joseph
Shine v. Union of India – Part II/II – Thulasi K. Raj and Maitreyi Hegde NLSI Review
None of this makes them any less entitled, as Justice Kennedy put it, to “respect for their
private lives.” If it were otherwise, there would be very few people – gay or straight – entitled
to liberty.”

BIBLOGRAPHY
Books Referred –
10. K.D. Gaur, Commentary on Indian Penal Code, Second Edition, Universal Law
Publishing Co.
11. Ratanlal & Dhirajlal, Justice K.T. Thomas and Advocate M.A. Thomas, Vol II. The
Indian Penal Code, 33rd Edition
12. SC Sarkar, Indian Penal Code, 2014, Dwivedi Law Agency Allahabad
Web database –
1. SCC Online
2. Lexis Nexis
3. Manupatra
Web Links –
1. https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-
to-the-institution-of-marriage-in-india/317282
2. https://www.ebc-india.com/lawyer/articles/2001v6a3.htm
3. http://www.mondaq.com/india/x/691468/Crime/Criminalization+Of+Adultery+In+Ind
ia+Gender+Bias+Approach
4. https://www.sci.gov.in/supremecourt/2017/32550/32550_2017_Judgement_27-Sep-
2018.pdf
5. https://m.dailyhunt.in/news/bangladesh/english/the+wire+english-epaper-
wireng/should+adultery+be+a+crime+at+all-newsid-93876604
6. https://www.livelaw.in/statutory-immunity-women-prosecution-adultery-sc-admits-
writ-petition-challenging-vires-section-497ipc/
7. https://zegal.in/judgement/smt-sowmithri-vishnu-vs-union-of-india-anr-supremecourt-
17779/

8. https://www.livelaw.in/justice-chandrachud-does-it-again-overrules-fathers-33-year-
old-judgment-on-adultery-law/
9. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2694&context=ilj
10. http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-
545X2013000200001#back7
11. http://sro.sussex.ac.uk/id/eprint/23744/1/Adultery_in_postwar_England.pdf
12. http://www.sociolegalreview.com/the-offence-of-adultery-and-gender-equality-in-the-
supreme-court-of-india/
13. https://www.scconline.com/blog/post/2018/12/19/adultery-joseph-shine-v-union-of-
india-given-retrospective-effect-conviction-under-section-497-ipc-set-aside/
14. https://www.legalbites.in/case-comment-joseph-shine-nandini-gupta-gargi/
15. http://www.nlsir.com/?page_id=28
16. http://www.legalservicesindia.com/article/2549/Law-of-Adultery-Under-IPC---A-
Critical-Analysis.html
17. https://www.thehindu.com/news/national/india-is-being-disrobed-by-western-
culture/article2347570.ece
Articles Referred –
1. Jolie Lee, USA TODAY Network, ET April 17, 201465
2. Alyssa Miller, "Punishing Passion: A Comparative Analysis of Adultery Laws in the

United States of America and Taiwan and their Effects on Women Alyssa Miller",
Fordham International Law Journal Volume 41, Issue 2 Article 4, pg 425-47066
3. Anna Duff, "What is adultery, is it the same as cheating, is it illegal in the UK and is it
grounds for divorce?," The Sun (18th September 2018)67
4. Soutik Biswas, "Adultery no longer a criminal offence in India" BBC News, Delhi (27
September 2018)68
65
Also available at www.freep.com
66
Also available at www.ir.lawnet.fordham.edu
67
Also available at www.thesun.co.uk
68
/www.bbc.com
5. Devika, SCC "The online Blog: LAW MADE EASY," SCC (February 21, 2019)69
6. Abha Singh, "Decriminalization of Adultery: A Setback to the Institution of marriage

in India", Outlook India (27 September 2018)
69
Also available at www.scconline.com

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DECRIMINALIZING ADULTERY:

Narsee Monjee Institute of Management Studies (NMIMS)

For the Award of

B.B.A. LL.B. (Hons.)

Abhigya Verma (A057)

Under the Guidance of

Kirit P. Mehta, School of Law

This is to submit that this written submission in my dissertation entitled "Decriminalizing

Mr. Abhigya Verma

Designation : Assistant Professor

Kirit P. Mehta School of Law,

Vile Parle (W),

Kirit P. Mehta School of Law, Mumbai (2019) Page 2

The work described in this dissertation entitled “Decriminalizing Adultery: A Critical

submitted for any degree to this or any other university.

Department of, __________________

Kirit P. Mehta School of Law, Mumbai (2019) Page 4

 CJ- Chief Justice

Kirit P. Mehta School of Law, Mumbai (2019) Page 5

1. Madhub Chunder Giri, (1873) 21 WR (Cr) 13

3. AIR Manual, fourth dn, vol 29, 901

4. Ramachandra v. Baburaj (2009) 4 KLT 744 (Ker).

5. Wj Philips Vs. Emperor AIR 1935 Oudh 506

6. Vedavalli v. MC Ramaswamy AIR 1964 Mys 280

7. AS Puri v. KC Ahuja AIR 1970 Del 214, (1970) Cr LJ 1441 (Del)

8. Brij Lal Bishnoi v. State (1996) Cr. Lj 4286(Del)

9. Boulting v. Boulting, (1864) 33 LJ (P M & A) 33

10. Munir, (1925) 24 ALJR 155

11. Pothi Gollari v. Ghanni Mandal, AIR 1963 (Ori) 60

12. Bharatlal v. Top Singh. (1995 Cr LJ 3545 (M.P.)

13. Kalyani v. State, AIR 2012 SC 497

14. 1985 CrLj 1302 (SC)

15. Sowmithri Vishnu Vs. Union of India

17. V. Revathi Vs. Union of India, AIR 1988 SC 835

18. Joseph Shine v. Union of India

19. Gobind v. State of M.P. (1975)2 SCC 148

20. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

21. Griswold v. Connecticut, 381 U. S. 479

22. Bowers v. Hardwick, 478 U.S. 186 (1986)

Kirit P. Mehta School of Law, Mumbai (2019) Page 6

24. Navtej Singh Johar

25. Rupesh v. Charandas,2018 SCC OnLine Bom 6292

26. A.S. Gauraya v. S.N. Thakur (1986) 2 SCC 709

27. McClure’s Ex’rs v. Miller, 11 N.C.(1 Hawks) 133, 140 (1825)

28. Halleman v. Halleman, 379 S.W.3d 443, 452

29. Farmer v Farmer (1850-1852) 1 Searle 227

30. Green v Fitzgerald 1914 AD 88 at 102, 119

Kirit P. Mehta School of Law, Mumbai (2019) Page 7

Review of Literature 12-18

Kirit P. Mehta School of Law, Mumbai (2019) Page 8

Kirit P. Mehta School of Law, Mumbai (2019) Page 9

The objectives of this study are –

Kirit P. Mehta School of Law, Mumbai (2019) Page 10

Kirit P. Mehta School of Law, Mumbai (2019) Page 11

1. Jolie Lee, USA TODAY Network, ET April 17, 20141

2. Alyssa Miller, "Punishing Passion: A Comparative Analysis of Adultery Laws in

 Implications of Adultery in Society

3. Anna Duff, "What is adultery, is it the same as cheating, is it illegal in the UK

The Courts in United Kingdom believe an Act of Adultery might be classified as

4. Soutik Biswas, "Adultery no longer a criminal offence in India" BBC News,

6. Abha Singh, "Decriminalization of Adultery: A Setback to the Institution of

7. SC Sarkar, "Indian Penal Code", Dwivedi Law Agency Allahabad (2014)