PROJECT IPC 1

Adultery: A Critical Study Under Indian Penal Code

Submitted by:

Shanmukha Srikar

2015026

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

NOVEMBER 2018

Acknowledgment

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I would like to humbly present this project with the grace of the almighty to Mrs Dr. Nandini
C.PI would first of all like to express my sincerest gratitude to Mrs Dr. Nandini C.P for her
paramount support and encouragement. I am thankful for being given the honour of doing
this research paper on “Adultery; A Critical Study Under Indian Penal Code”. I am thankful
to the library staff and committee members for all the conveniences which played a major
role in the completion of this paper.
Last but by far the most important, I would like to thank God for keeping me in good health
and senses to complete this project. I present this project with a humble heart.

- Shanmukha Srikar

CHAPTER 1 - INTRODUCTION

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1.1 Statement of Problem

There has been recurrent, conflict between the liberties of the individual and security of the
society. It is well reflected in the area of sexual behaviour as it becomes difficult to reconcile
competing claims of the liberty of the individual and the security which so far have defied
final solution. It gets further complicated in a developing, multilingual, heterogeneous and
plural society like India where conflict between them are multidimensional and naturally
sharper. It threatens to disturb the dynamic social equilibrium of the society.

Society is a dynamic and living concept as it grows with the passage of time. It is regulated
by various forced which set up a dynamic equilibrium in the society. Besides this the social
values keep on changing with the passage of time and place to place. An act which is an
offence today may not be an offence in the past and the vice-versa. This poses constant
problems in the society.

In many jurisdictions adultery is viewed as an offence injurious to public morals and

mistreatment of the marriage relationship. It jeopardises the institution of marriage. Though
historically adultery has been regarded as a very serious and heinous crime, but the modern
society is afflicted by many new social conditions which have led to a liberal view about it.
The processes of urbanization, industrialization and population explosions have brought
about new tensions, problems and changes in the society, which have affected the institution
of marriage and aspects related to it.

Thus, it becomes necessary to inquire the new approaches and developments that have taken
place with regards to the offence of adultery which affects directly affects the institution of
marriage yet it is penalised under the Indian Penal Code.

1.2 Aims and Objective of the Study

The chief objective of the work is to study various facets related to adultery in and around the
world. On critically examining the matrimonial, criminological and constitutional aspects of
the chosen problem, it will be easy to answer the question, whether the offence of adultery
should be retained or abolished in India.

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The study has theoretical and academic importance as well as practical utility. Indian society
is developing rapidly to achieve the developmental goals which western societies took
centuries to achieve. Thus, it is becoming increasingly open because of the changes taking
place in sexual behaviour, attitude and sexual values in the society.

The work proceeds with the hypothesis that the existing legal provisions on adultery i.e.
section 497 IPC is not satisfactory. It is out of tune with the time and new wave of thinking
on sexual matters. The study aims to search solutions for the following questions raised:

I. What should be the definition of the term adultery?

II. What are the different causes and consequences of adultery?

III. Whether the offence of adultery should be abolished or the man and woman at fault
should be punished equally?

IV. The recent Judgment which Decriminalized the Adultery and the reason for its
abolishment.

1.3 Research Methodology

The research method used in the whole project report is doctrinal including primary and
secondary sources. Literature from various articles contributed by individuals and agencies
can lead to different conclusions all of which can be challenged on different grounds. Besides
these, other sources like Law Commission Report, Recommendations by Malimath
Committee and National Commission for Women, Working Papers etc. have also been
resorted to. The method of writing is analytical and comparative. The literature on the subject
is critically analyzed and comparison is made with the law prevailing in other countries on
the subject. However, the constraints of time and finances have added to the limitations of the
study and thus the doctrinal method of research has been used.

1.4 Chaptalization

The study has been conducted under the following chapter scheme:

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Chapter – 1 Introduction, articulates the problems for the study in the area of matrimonial and
criminological aspects of adultery. The statement of problem articulates the research problem,
rationale of the study and aims and objectives of the problem. It also describe the research
methodology employed.

Chapter – 2 Conceptual Perspectives, deals with the various definitions that have been given
to the term adultery and its origin. It gives an historical account of adultery during different
ages.

Chapter – 3 Analysis of various Laws relating to Adultery in India, which provides analytical
and descriptive study of adultery under matrimonial laws, penal laws and constitution.

Chapter – 4 International Perspective, in which comparative study with the laws prevailing in
other countries has been done.

Chapter – 5 Recent Issues and Debates regarding adultery. The different views that have been
raised in the society regarding female criminality and decriminalising adultery has been
discussed on the basis of the reports and recommendations of the Law Commission of India,
Malimath Committee and NCW. Decriminalization of Adultery.

Chapter – 6 Concluding Observations, embodies the conclusion that has been arrived at after
undertaking the detailed study on the subject in the previous chapters.

CHAPTER 2 - CONCEPTUAL PERSPECTIVES

Sexual relations have always been a matter of curiosity in society. The difficulties have also
been experienced with regard to putting the rider on legitimate sexual activities. The problem
might have been in the society since its inception but with the emergence of family
institution, it might have assumed debatable dimensions. As the society progressed and
advances were made in science and technology, many societal institutions including marriage
have come under attack.

Latest mechanization, urbanization, industrialization and population explosion have virtually

brought about disintegration of family institution. It has created serious problems so far as the
life is concerned. There are many known forms of social delinquencies such as unnatural sex,
unmarried motherhood, abortion, rape, kidnapping, enticement, abduction, adultery, incest,

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indecent assault, etc. There is upward trend about these sexual offences in the society. The
areas of legitimate sexual activity have considerably narrowed down because of increasing
number of enactments and judicial pronouncements restricting sexual freedom. Since its
inception, the law on adultery in India has been subject to controversy with regard to several
fundamental issues.

This chapter takes into account adultery in its conceptual perspectives and general aspects.

2.1 Meaning and Nature of Adultery

Adultery is the indulgence in voluntary sexual intercourse of a married person with someone
other than his/her spouse. It is the intentional violation of the marital bed and the offence of
incontinence by those persons entered into the bond of marriage. However, such legal
definitions of adultery vary from one country to another and statute to statute, while adultery
is voluntary sexual intercourse between a woman and a man who is not her husband in some
places, it is voluntary sexual intercourse between a woman and a third party without her
husband’s consent in other places. While at many places adultery is when a woman has
voluntary sexual intercourse with a person other than her husband, at other places adultery is
when a woman has voluntary sexual intercourse with a third person without her husband’s
consent.

2.1.1 Definition of Adultery

Adultery is defined as the sexual intercourse between a married person and a person other
than the spouse outside the marriage bond. Hence, it directly hits the institution of marriage.
Nature of adultery is little confusing because of uncertainty in the definitional dimensions.
The point of uncertainty is whether both parties to the adultery should be held liable for all
purposes, matrimonial as well as criminal or one party may be exempted from the liability
keeping in view the requirements.

Etymologically, the origin of the term is traced from the Latin word, ‘adulterare’ which
means to commit adultery. However, in order to understand the definition and true nature of
adultery the following definitions are being studied:

According to Webster’s Dictionary, it means voluntary sexual intercourse between a married

man and someone other than his wife or between a married woman and someone other than

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her husband.1 It also says that adultery means the sexual intercourse of two persons either of
whom is married to a third person. It makes the word adultery synonymous with
unfaithfulness or unchastity. It gives another meaning as, any lewdness or unchastity of act or
thought, as in violation of the divine commandments.2

According to Black’s Law Dictionary, adultery means sexual relations between a married
person and someone who is not that person's wife or husband.3

According to Encyclopaedia Britannica, adultery refers to sexual relations between a married

person and someone other than the spouse.4 It also says that written or customary prohibitions
or taboos against adultery constitute part of the marriage code of virtually every society.

According to Juris Secundum, it is defined as an offence against the marriage relation, but is
more specifically defined as sexual intercourse between a married man and woman not his
wife, or between a married woman and a man not her husband.5

Adultery is an act of voluntary sexual intercourse (which need not be completed), between
two persons who are not married to each other, but one or both of whom are, at the time of
the act, married to a third person.6

The act of adultery leads to civil as well as criminal consequences because it has been made a
ground for seeking divorce and has also been criminalised under the penal laws. Though the
modern trend is to decriminalize adultery, historically, many cultures have regarded adultery
as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their
condemnation of adultery. In most cultures both the man and the woman are equally
punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law,
only the offending female spouse could be killed and men were not heavily punished.

1
Webster’s Comprehensive Dictionary, 21 (1995), available at
http://www.merriamwebster.com/dictionary/adultery?show=0&t=1302444990 (visited on 12.10.18 at 12:12
a.m.)
2
The New International Webster’s Comprehensive Dictionary of The English Language, Trident Press
International, 2003.
3
Black’s Law Dictionary, 8th Ed., 2004
4
Encyclopedia Britannica, 111 (2002, 15th Ed.), available at
http://www.britannica.com/EBchecked/topic/6618/adultery (visited on 12.10.18 at 12:12 a.m)
5
Corpus Juris Secundum, 410 (2003)
6
K.J. Aiyar, ‘ Judicial Dictionary’, LexisNexis Butterworths, New Delhi, 14th Ed., 2007, pg. 46

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In India the offence of adultery is punishable under Section 497 7 of the Indian Penal Code
(IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the
wives of other men without the consent of their husbands punishable and women cannot be
punished even as abettors.

2.1.2 Nature of the Offence of Adultery

The nature of adultery has created some dilemmas to the policy makers. The question is
whether a single act should be regarded as sufficient to constitute adultery or if a person is
living in adultery should be regarded as adultery. Prior to 1976, in India the unamended
Hindu Marriage Act, 1955 had used the expression ‘living in adultery’ 8. But later on the
expression was dropped in preference to the present phrase. However, the criminal law of
India has not required the proof of adultery in such a manner i.e. ‘living in adultery’. A single
act of adultery is punishable under section 497 of IPC. Some offences are likely to be
committed for omitting adultery and it may also be responsible for provocation in committing
serious offences, such as culpable homicide, murder etc.

Adultery is not abduction under the statutory definition. It simply means taking or detaining a
female for the purpose of marriage, sexual intercourse, concubinage or prostitution under the
specified conditions.9

Under Indian criminal law the married woman who is party to the adultery cannot be
punished even as abettor. The reason, presumably may be social and economic backwardness
of woman an peculiar Indian circumstances in which they have been placed by the society
over the ages. In Sowmithri Vishnu v. Union of India10, the Supreme Court observed:

7
Section 497 – Adultery - 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 rap, 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.
8
Section 13 (1) (i) – Divorce - (1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party-
(i) is living in adultery; or …
9
Paripuranand Verma, ‘Sex Offences in India and Abroad’, B.R. Publishing Corporation, New Delhi, 1st Ed.,
1979, pg. 174
10
AIR 1985 SC 1618

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“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.”

Thus it seems that the basic condition of the Indian women and society’s attitude towards
females prohibits the courts to punish her even as abettor.

Adultery is regarded as an anti-social and illegal act and any person of good moral would not
like this type of activity to be committed in the society. In this connection an observation of
Justice Bhat, made in Hatim Khan v. State of J & K11, deserves to be quoted:

“Adultery by itself is an anti-social and an illegal act; naturally any peace-loving

citizen and any person of good morals would not like that adultery should be permitted to be
indulged in before his very nose.”12

Similarly it may lead to destruction of marriage. Robert P. Blood observes that adultery is the
main factor leading to break ups in family life. He observes:

“The varieties of adultery are endless. Sometimes it is a kind of pre-marital

intercourse, the physical expression of new love which has already superseded the old.”13

Thus, criminological adultery may be defined as illicit sexual intercourse between a married
woman, who has a living husband, and another man. It is immaterial whether the man
involved in the commission of the act is married or unmarried. The sexual act is committed
with the consent of the woman. According to matrimonial laws it means sexual intercourse
between a married person and another person other than a spouse. The element of immorality
and harmful nature of the act criminalise the human conduct in case of adultery.14

2.2 Origin and History of Adultery

Adultery as a sin has a long chequered history. The offence intimately associated with
marriage necessities to look into it from historical perspective. During ancient Hindu period,
it was prevalent. Mohammedan period saw an upsurge as there was an open show of sexual

11
AIR 1963 J&K 56
12
Id. at 58
13
Robert P. Blood, ‘Marriage’, The Free Press, New York, 2nd Ed., 1969, pg. 394
14
S. M. A. Quadri, ‘Ahmad Siddique’s Criminology: Problems and Perspectives’, Eastern Book Company,
Lucknow, 5th Ed., 2005, pg. 121

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lust. The rulers maintained ‘Haram’ to satisfy their sexual lust and enjoyment. In English
period also, offences against sex including adultery were prevalent and increased following
the increasing impact of western liberal values, urbanization and industrialization. The
changing moral values introduction of western standards, cessation of adultery and
homosexuality between consenting adults as offence in some countries are largely responsible
to increasing incidents of adultery and other sexual offences. This section of the chapter
analyses the problem from historical perspective under the eras of time.

2.2.1 Hindu Period

Marriage in India has been regarded as sacramental in nature. The sanctity attached to
husband and wife brought about by the marriage and inseparability of their relationship was
the firm foundation on which social life was construed. 15 Manu recognised eight forms of
marriages brahma, daiva, arsa, prajapatya, asura, gandharva, raksara and paisaca and
according to him everyone should get married. He says:

Just as every creature lives by air, so the order of life exist by the support of the house
holder: a wife is the main source of dharma, artha and kama and so an unmarried
person, irrespective of varna to which he belongs, in unfit for the discharge of his
duties.16

He attached great importance to the women of the house and she should be respected by
everyone. According to Dharmshastra and Manu, the home and the family are the bedrock of
the society and woman is a person on whom the sanctity of the home and household rests.
The wife is the home and should not be exposed to the rough and independent life. She
should always be taken care of by someone – by her father in childhood, by her husband in
youth and by her son in old age. 17 This means that emphasis was on subordination and
dependence of women. She was to grow under the impression that she was not fit for
independent existence.

15
M. Rama Jois, ‘Ancient Indian Law – Eternal Values in Manu Smriti’, Universal Law Publishing Co. Pvt. Ltd,
2007, pg. 38
16
R. B. Pandey, ‘ Hindu Sanskaras – Socio Religious study of Hindu Sacrament’, Motilal Banarsidas, Delhi, 2 nd
Ed., 1976, pg. 153
17
V. Raghvan, ‘The Manu Samhitas’, in The Cultural Heritage of India, Calcutta, 2nd Ed. 1959, pg. 354

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Even from the Vedic age, the standard of female mortality appeared to be high, the chastity of
the woman was emphasised and it was to be protected and respected. The degree of
punishment depended upon the classes of offences.18

Ancient sages divided sins into two classes as, mahapatakas (moral sins) and upapatakas
(minor sins). The former were the killings of Brahmna, drinking wine, stealing and adultery. 19
In ancient India the sin of adultery considered deadly and treated very severely. The unlawful
coming together of a man and woman for sexual enjoyment constituted strisangrahna or
adultery.20 The punishment for adultery varied from death sentence to different types of
corporeal punishments.

2.2.2 Medieval Period

In medieval India, polygamy was prevalent in different classes of society. The travellers like
Alberuni, Hamilton who visited India during this period found that the Hindus take one wife
and never divorce her till death except for the case of adultery, but for Mohammedans the law
permitted to have three or four wives. The Sikh Gurus and social reformer treated adultery as
most heinous crime.

During this period Ala-ud-din issued orders, providing punishments for adultery, such as,
stoning to death, castration, cutting of nose etc. Jahangir also admired the fidelity of Hindu
women who would not allow the hand of any unlawful person to touch the skirt of their
chastity and would rather perish into flames.21

2.2.3 English Period and Post-Independence Period

When East India Company came to the country, the substantive criminal law was
Mohammedan Criminal Law and cases were tried and decided according to it. In 1860, this
law ceased to be the law of the land and was replaced by the Indian Penal Code, 1860, which
is still the law of the land. Section 497 of the code provides punishment for adultery. The

18
J. D. Mayne, ‘A Treatise on Hindu Law and Usage’, Nabu Press, 13th Ed., 1991, pg. 93
19
Dinesh Chandra Bhattacharya, ‘Penances and Vows’, in The Cultural Heritage of India, Calcutta, 1993, pg.
386
20
M. Rama Jois, ‘Legal and Constitutional History of India’, Universal Law Publishing Co. Pvt. Ltd., 2010, pg.
374
21
P. N. Chopra, ‘ Some Experiments in Social Reforms in Medieval India’, in The Cultural Heritage of India,
Calcutta, 1993, pg. 639

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maximum punishment is imprisonment for five years of either description or fine or both.
The action is initiated on the complaint of the Code of Criminal Procedure, 1973 i.e. section
198. The guilty wide is punishable neither as offender nor as abettor.

However, it may be noted after independence offences against women have increased and
adultery is not exception to this. It can be well demonstrated by the fact that male prostitution
is increasing day by day. Women have become more liberty oriented and the population of
working women is also increasing.

CHAPTER 3 - ANALYSIS OF LAWS RELATING TO ADULTERY IN

INDIA

Adultery is not uncommon in India for a number of reasons. Its peculiarity and amorphous
quality is exhibited from the fact that it is sexual offence as well as offence against the
institution of marriage. It is a ground for judicial separation as well as divorce under family
law and therefore, from matrimonial point of view, its relevance cannot be ignored. It attacks
the institution of marriage in the society. The definition of adultery has changed from time to
time and place to place.

This chapter deals with the difference in the nature of adultery under matrimonial laws, penal
laws. It takes into account adultery as a civil wrong.

3.1 Adultery under Criminal Laws as a Crime

In India, adultery is a ground of divorce as well as a crime under the Indian Penal Code.
Every religion treats it as an unpardonable sin.22 It treats adultery as an invasion of the right
of the husband over his wife and puts it under Chapter XX of Offences Relating to Marriage.

The section 497 penalizes sexual intercourse of a man with a married woman without the
consent of her husband when such sexual intercourse does not amount to rape. That is, it
draws a distinction between consent given by a married woman without her husband’s
consent and a consent given by an unmarried woman. It does not penalize the sexual

22
K.I. Vibhute, ‘Adultery in the Indian Penal Code: Need for a Gender Equality Perspective’, (2001) 6 SCC 16
(J)

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intercourse of a married man with an unmarried woman or a widow or even a married woman
when her husband consents to it. In case the offence of adultery is committed, the husband
cannot prosecute his unfaithful wife but can only prosecute her adulterer.

However, since the offence of adultery can be committed by a man with a married woman
only, the wife of the man having sexual intercourse with other unmarried women cannot
prosecute either her husband or his adulteress. What is interesting here is that the section
itself expressly states that the unfaithful wife cannot be punished even as an abettor to the
crime. The offence of adultery therefore is an offence committed against the husband of the
wife and not against the wife.

Section 497 of the Indian Penal Code, 1870 states that,

“Whoever has sexual intercourse with a person who is and whom he knows or has a
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 the offence
of Adultery”.

Object

The main objective of this provision is that the social goodwill should be promoted between
the husband and wife by pertaining them to make up the matrimonial tie rather than to drag to
the criminal court.23 They may condone the offence of adultery by way of ‘forgive and forget’
and can live separately whether officially or unofficially.

Essentials

In order to attract the application of this provision there are certain essential ingredients
which are to be fulfilled.24 Such as:

1. there must be sexual intercourse

2. woman must be married

3. the offender has knowledge or reasonable belief that the woman is married

23
Justice V.V. Raghvan, ‘Law of Crimes’, India Law House, New Delhi, 5th Ed., 2001, pg. 768
24
Ratanlal & Dhirajlal, ‘The Indian Penal Code’, Wadhwa & Company, Nagpur, 31st Ed., 2006, pg.2517

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4. sexual intercourse was committed without the consent or connivance of the husband
of the woman

5. the offence must not amount to rape

Therefore, in order to prove adultery these ingredients must be identified and are explained in
briefly in the following section.

itself and if there is no penetration, some lesser act or sexual gratification does not amount to
adultery.25 In the case of Kashuri v Ramaswamy, it was held that if the act of sexual

Constitutional Validity of Section 497

Immediately after the commencement of the Constitution of India, Section 497 IPC which
defined adultery and provides punishment for the offence has also faced three constitutional
challenges. It was assailed on the ground that it goes against the spirit of equality embodied
in the Constitution. It has argued that it is violative of Article 14 26, 1527 and 2128 of the
Constitution. It is so because with the passage of time the society has undergone many
changes such as women empowerment, sexual freedom, liberal values, change in socio-
economic conditions, and have diluted the constitutionality of this provision.

The question of constitutional validity of section 497 IPC was first initiated in the case of
Yusuf Abdul Aziz v. State29. 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

25
Ratanlal and Dhirajlal, ‘The Indian Penal Code’, Wadhwa and Company Nagpur, New Delhi, 31st Ed., 2006,
pg.2518
26
Article 14 - Equality before law - The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.
27
Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth - (1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children. …
28
Article 21- Protection of life and personal liberty - No person shall be deprived of his life or
personal liberty except according to procedure established by law.
29
AIR 1951 Bom 470

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contravention of Articles 14 and 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."30

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".31

Yusuf Abdul, on appeal to the Supreme Court in the matter of Yusuf Abdul Aziz v. State of
Bombay32, 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 immunity assured to the adulteress wife 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.

The Supreme Court rejected these arguments and ruled that Section 497 does not offend
either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the
argument that Section 497, in the changed ‘social transform’33.

30
Id. at 472
31
Ratanlal and Dhirajlal, ‘The Indian Penal Code’, Wadhwa and Company Nagpur, New Delhi, 31st Ed., 2006,
pg.2520
32
AIR 1954 SC 321
33
http://www.lawyersclubindia.com/experts/Section-497-IPC-is-unconstitutional--9441.asp

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It must be mentioned here that all of the above decisions of the Supreme Court had restricted
their scope to the determination of Constitutional validity of Section 497 as it stands. They
should not be taken as an authority over the question whether Section 497 is required at all.

Adultery cannot be committed without a woman’s consent. Yet, the section burdens man
alone for the offence. Though the reasons for this may be justifiable, the woman here is
always treated as a victim of the offence. Hence, this section does not contemplate a situation
where the same married woman has sexual intercourse with more than one person other than
her husband without her husband’s consent. It is highly implausible that even in such a
situation the woman would always be the victim and not the person who provokes the
offender for the crime. No doubt that the law, as it stands, is inadequate.

CHAPTER 4 - RECENT ISSUES AND DEBATES

4.1 Recommendations of various Committees and Commissions

The section 497 IPC which provides punishment for adultery, has been a subject matter of
considerable debate. It is so because the section has been criticised for excluding the married
woman from criminal liability for committing adultery. Although the Supreme Court of India
has always upheld the validity of section 497 IPC, the recommendations of Law Commission
of India and Malimath Committee go against the law laid down in section 497 IPC, so far as
exemption of married woman from criminal liability is concerned.

4.1.1 Forty Second Report, the Law Commission of India

The Law Commission of India in its 42nd Report on Indian Penal Code in 1971, dealt with
offences relating to marriage under Chapter XX. Adultery has been discussed at length by the
Law Commission of India. It surveyed the position in USA, Britain, France, Germany and
other European countries. It also noted the view of Lord Macaulay and other framers and
found that this section did not find any place in the first draft penal code. However, in 1860
the section 497 took its present form. The Commission also remarked that from factual and
practical point of view the position today was not appreciably different from that pointed out
by Lord Macaulay, 130 years ago. Thus, after analysing the position in other countries with

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 PROJECT IPC 17

regards to the law relating to adultery and conditions of the society the Commission proposed
the revision of the section 497 IPC.34

4.1.2 Committee on Reforms of Criminal Justice System (Dr. Justice V.S. Malimath
Committee)

The Committee on Reforms of Criminal Justice System under the Chairmanship of Justice
V.S. Malimath and remarkable participation by Prof. Madhav Menon, has also recommended
various changes in the criminal justice system. The Committee as dealt with the provision of
section 497 IPC under Part IV of the Report under the heading ‘Crime and Punishment’. The
principle aim of the Committee was to remove gender bias in the law by recommending
similar treatment to both men and women offenders. It said that the object of the provision is
to preserve the sanctity of marriage and the society abhors marital infidelity.

It has been noted by the Committee that, as a man can be punished under Section 497 of the
IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason
that wife should likewise be punished if she has intercourse with another married man.35

The Committee therefore suggests that Section 497 I.P.C should be suitably amended to the
effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of
adultery… … ..”.36

4.1.3 National Commission for Women

The National Commission for Women (NCW) has shot down proposals for amending Section
497 of the Indian Penal Code, which provides expressly that the wife cannot be punished
even as an abettor, based on the reasoning that the woman, who is involved in an illicit
relationship with another man, is a victim and not the author of the crime.

The commission, according to its sources, does not think that by merely prescribing
punishment for women by amending Section 497, marriage can be protected or saved.

34
Refer to Annexure
35
Available at: http://pucl.org/Topics/Law/2003/malimath-recommendations.htm (visited at 05.10.18 at 1.12
p.m.)
36
Refer to Annexure

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 PROJECT IPC 18

In its recommendations forwarded to the Government, which asked it to review Section 497,
the NCW has stated that considering the relatively socially underpowered position of women,
no amendments have been suggested. The existing IPC provision is based on the mindset that
the wife is a personal possession of the husband, who is solely aggrieved by adultery.37

The Commission has, however, recommended suitable amendments to Section 198(2) of the
Criminal Procedure Code (Cr.PC), which disqualifies a woman from prosecuting her husband
for his promiscuity. As already the woman can take action against her husband under various
other legal provisions such as Section 498A of the IPC, there is no reason that she should be
barred from initiating prosecution under Section 198 of the Cr.PC. The wife, in such cases,
ought to be the person aggrieved and competent to file a complaint under Section 198.38

In another important recommendation, the Commission has said adultery should be treated as
a civil wrong and not as criminal offence.

There may be many instances in which the woman wants to save marriage and sees the
adulterous relationship as an aberration. The issue of adultery should be viewed as a breach
of trust and treated as a civil wrong rather than as a criminal offence.

In a nutshell the Commission made the following observations39:

 Adultery should be converted from a criminal offence, as it currently stands, to a civil

offence.
 This should be done only after a national consensus on the issue.

 Women should continue to remain free from criminal action for adultery, as they now
are, because they are always victims and can never commit any crime.

Section 198 of the Criminal Procedure Code should be amended in order to allow women to
file complaints against unfaithful husbands and prosecute them for their promiscuous
behaviour.
37
Available at: http://www.hindu.com/2006/12/26/stories/2006122603270900.htm(visited at 05.10.18 at 1.12
p.m.)

38
Refer to Annexure
39
Available at: http://www.tribuneindia.com/2007/20070120/saturday/main1.htm (visited on 06.10.18 at 9:30
p.m.)

Adultery: A Critical Study Under Indian Penal Code

 PROJECT IPC 19

On the basis of these reports and recommendations, it can be concluded that there are two
major issues with respect to the offence of adultery which are igniting the debate. These are
the issue of female criminality by which the supporters want that the woman adulterer should
also be held equally liable as the male counterpart. The second issue relates to the
decriminalisation of the act of adultery, rather make it a civil or social wrong.

4.2 Decriminalisation of Adultery

The changing social conditions depict that polygamy in all religions except Muslims, who are
legally allowed to have four wives, has ceased to exist and become illegal. Men now have
only one wife who has no rivals for her husband’s love and affection. Today, not only a
person having two wives can be prosecuted for bigamy but his second marriage is void ab-
initio.40 Unlike the past when it was required to prove that the husband “lived in adultery” to
obtain a divorce, even a single instance of sexual intercourse with anyone other than the
spouse entitles the other spouse for divorce.

Now, wives are not deprived of their husband’s love and care and spouses can hardly
maintain any polygamous or extramarital relations without inviting any legal action. Even the
definition of adultery in civil law is much wider in scope than in criminal law. The personal
laws, which did not exist in the present form at the time this law was passed, have not only
become operational but also given somewhat of a level playing field for both, the husband
and the wife. Naturally, these factors have made the then object of Section 497 obsolete.

Furthermore, marriage is a bond between two individuals who are over the age of majority
and are of sound minds. The discretion to maintain any relationship with someone other than
one’s spouse therefore, should be given to the parties involved. However, such discretion
should be restricted to the sanction imposed by personal law i.e., a valid ground for divorce.
Marriage is found to be within the ambit of personal laws under which it can be a valid
ground for divorce and hence it seems rather redundant that Criminal Law must be used to
meet out an added punishment. This proposition has also been supported by the National

40
Refer to Chapter 4 dealing with personal laws

Adultery: A Critical Study Under Indian Penal Code

 PROJECT IPC 20

Commission for Women (NCW) which recommends that civil remedies must be ensued for
perpetrators of adultery and not criminal sanctions as mixing personal law with criminal law
is unwarranted.

The recommendation of the Malimath Committee and that of the National Commission for
Women have raised the issue of decriminalising adultery. They have taken the altered social
factors into account and on that basis mooted for the removal of adultery from a crime and its
conversion into a social wrong. Implementation of this proposal would be in consonance with
the social scenario of our country today. The recourse to divorce shall still be available to the
aggrieved party as shall be the other recourses in civil law such as damages for mental
trauma. The wife who indulges in adultery is not entitled to maintenance. Thus the aggrieved
individual can seek redress under other areas of law. Hence converse to popular believes the
deterrent shall still exist. Nevertheless removal of adultery from the status of a crime would
greatly reduce the deterring effect. Instead of limiting the degeneration of morals and values
from the society making adultery a social wrong would unconsciously promote the evil of
infidelity.

Therefore, adultery cannot be said to be a criminal offence as the act of adultery is simply
effected by one’s personal life, whereas, a crime is an offence against the State. Hence, by
rethinking the purpose behind the criminalization of adultery, and eventually disregarding it
as legitimate law the progress of women from being perceived as helpless to being on par
with men and equally self-sufficient, can be achieved.

The Judgment which Decriminalized the Adultery as Crime

Case Analysis

Name: Joseph shine V. Union of India

Citation: 2018 SSC Online SC 1676

Bench: Before Justice Deepak Mishra C.J and Justice Chandra Chud , A.M Khanwilkar , R.F
Nariman and Indu Malhotra

Issue: The issue remains as to whether ‘adultery’ must be treated as a penal offence subject
to criminal sanctions, or marital wrong which is a valid ground for divorce.

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 PROJECT IPC 21

Facts :

The petitioner is the not the citizen of and has been accused with the crime adultery and the
petitioner has approached the apex court to seek justice in the case he was accused of, the
petitioner has contending that the Adultery has to be decriminalized and to acquit him with
offence.

Later the counsel appearing on the petitioner side , has been going through the long debates
on decriminalizing adultery in India.

Judgment:

The contra view is that adultery is a marital wrong, which should have only civil
consequences. A wrong punishable with criminal sanctions, must be a public wrong against
society as a whole, and not merely an act committed against an individual victim.

To criminalize a certain conduct is to declare that it is a public wrong which would justify
public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in
the most intimate spaces of life, should be protected from public censure through criminal
sanction. The autonomy of the individual to take such decisions, which are purely personal,
would be repugnant to any interference by the State to take action purportedly in the ‘best
interest’ of the individual.

In my view, criminal sanction may be justified where there is a public element in the wrong,
such as offences against State security, and the like. These are public wrongs where the
victim is not the individual, but the community as a whole.

Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether
there is a sufficient element of wrongfulness to society in general, in order to bring it within
the ambit of criminal law?

The element of public censure, visiting the delinquent with penal consequences, and
overriding individual rights, would be justified only when the society is directly impacted by
such conduct. In fact, a much stronger justification is required where an offence is punishable
with imprisonment.

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 PROJECT IPC 22

The State must follow the minimalist approach in the criminalization of offences, keeping in
view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and
punishment by the State except where absolutely necessary. In order to determine what
conduct requires State interference through criminal sanction, the State must consider
whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is
sufficient, it may not warrant criminal sanction by the State.

In view of the aforesaid discussion, and the anomalies in Section 497, it is declared that:

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of
the Constitution.

(ii) Section 198(2) of the Cr.P.C which contains the procedure for prosecution under Chapter
XX of the I.P.C shall be unconstitutional only to the extent that it is applicable to the offence
of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani(supra)
hereby stand overruled.

Reasoning:

The Offence of Adultery is was listed as Penal Crime before Constitution and the legislation
is made by the Foreign rulers, the Offence of Adultery is the Moral wrong which is like the
breach of Matrimonial Tie and Obligations which are present in the India society. India is the
land of many cultures and traditions over people are changing their old practice of cruelty
towards were changing. The change is taking over time and it is in this modern era of 21 st
century where the Judiciary is undergoing the Globalisation. There are many countries where
Adultery is the Civil wrong and a ground for divorce but not criminal offence. The section
497 of IPC is in contravention to the Article 14 & 15 of Constitution which talks about
Equality.

Adultery: A Critical Study Under Indian Penal Code

 PROJECT IPC 23

CHAPTER 5 – CONCLUDING OBSERVATIONS

After undertaking a detailed research analysis of the present topic starting from merely
defining the term adultery and further moving on to the gravest intricacy related to it, the
conclusion can be drawn in a multipronged approach. There are several views and opinions
on every aspect of the topic. Beginning with the defining part, though there are not much
differences in the various definitions but yes there are minor differences in all the definitions
given to the term adultery, which cannot be ignored.

Since, adultery is considered an act against morals so historically in every religion it was
regarded as a very heinous crime and was treated brutally. Then with the developments of the
society the forms of punishing this act became liberal and different legal system around the
world made this act as punishable with imprisonment or flogging (in some Muslim
countries).

Though the punishments and treatment towards adultery were liberalised but the criminal
nature attached to the act of adultery has not yet been removed by many countries. This has
become a highly debatable issue, because the offence of adultery directly the pounces upon
the institution of marriage which has been very well recognised by all the legal systems. So, it
is proposed that the criminality attached to it shall be removed because it is already
recognised as moral, social and civil wrong.

Besides decriminalising adultery, another issue pertaining to female criminality is also being
argued from a long period of time. It must be kept in mind that adultery was drafted into the
Indian Penal Code, 1870 during the existence of the Colonial Rule in India. The prevailing
conditions at this time were such that a woman was looked at as being the mere property of a
man. However, in the present day, women are not mere chattel whose identities are defined
by the men surrounding them, but by their own individual personalities. Law, being dynamic
in nature, must evolve with society. Therefore, the dubious logic behind the adultery laws in
India cannot be accepted in today’s continuously evolving society.

Adultery: A Critical Study Under Indian Penal Code

 PROJECT IPC 24

In light of the above critical analysis, it is very much apparent & beyond doubt, that the
prevailing law is not in consonance with the changed times, the law is neither socially apt nor
does it stand to the principles of equality, from absolute conservatism to absolute liberty. The
social fabric of our country has undergone a drastic change. The unequal treatment meted out
to men and women has been questioned frequently. What seems arbitrary is the fact that the
law may be used to punish the man while allowing the woman, who had equally been
involved in the act, to go absolutely free. It appears discriminatory that for the same act the
man becomes the manifestation of evil but the woman still is considered to retain her virtues.

It is high time that Recommendations made by the Justice Malimath Committee and the 42nd
Report of the Law Commission be taken into consideration religiously, and necessary
amendments are made to Sec. 497 IPC, so as to do away with the irregularities, and in the
interest of doctrine of equality.

BIBLIOGRAPHY

STATUTES

 Constitution of India, 1950

 Criminal Procedure Code, 1973
 The Indian Penal Code, 1860

BOOKS

1. Aiyar K.J., ‘Judicial Dictionary’, 14th Ed., LexisNexis Butterworths, New Delhi,
2007.

2. Bhattacharya Dinesh Chandra, ‘Penances and Vows’, in The Cultural Heritage of

India, Calcutta, 1993.

3. Blood Robert P., ‘Marriage’, 2nd Ed., The Free Press, New York, 1969.

4. Burford, E.J. and Sandra Shulman. ‘Of Bridles and Burnings: The Punishment of
Women’, New York: St. Martin’s Press, 1992.Chopra P. N., ‘Some Experiments in
Social Reforms in Medieval India’, in The Cultural Heritage of India, Calcutta, 1993.

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 PROJECT IPC 25

5. Jois M. Rama, ‘Legal and Constitutional History of India’, Universal Law Publishing
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6. Justice Raghvan, V.V. ‘Law of Crimes’, 5th Ed., India Law House, New Delhi, 2001.

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9. Sarkaria S.K., ‘R.A. Nelson’s Indian Penal Code’, 9th Ed., LexisNexisButterworths,
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10. Schubert Frank A., ‘Introduction to the Law and Legal System’, 8th Ed.

11. Thakkar C.K.,(ed.) ‘Ratanlal & Dhirajlal Law of Crimes- A Commentary on Indian
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DICTIONARY & ENCYCLOPEDIA

 Garner, Bryan A., Black’s Law Dictionary, West Publishing Company, 8th Ed. 2004.

 The New International Webster’s Comprehensive Dictionary

REPORTS

 42nd Law Commission Report.

 Report Volume 1 submitted by Committee on Reforms of Criminal Justice System
(Dr. Justice V.S. Malimath Committee)
 Report submitted by National Commission for Women recommending Amendment in
Criminal Procedure Code, 1973

WEB SOURCES

 www.indiankanoon.org
 www.manupatra.com
 www.scconline.com

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 PROJECT IPC 26

 http://www.merriamwebster.com/dictionary/adultery?show=0&t=1302444990
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 http://www.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm (
 http://www.icsworld.com/papers_and_press/infidelity_and_adultery_laws_and_court_
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Adultery: A Critical Study Under Indian Penal Code