An Analytical study on the Judgement of Adultery

Author: Akar Srivastava

Co-author: Monica Chhabra

Volume 1 Issue 1

January 2019

ISSN: 2581-8465

1. Introduction

‘Marriages are made in heaven.’ Over centuries this has been believed and marriages have always been considered as the building block of the society and its sanctity has been accepted and respected in all societies and across cultures. But the cosmopolitan societal environment and approach, the excessive tendency on capitalism, the breakdown of family bondage, lack of skills and motivation to solve the problems of conjugal life drive the spouses to drift away from their marriage and start searching for a new partner in whom they find happiness and satisfaction. Though the laws of India uphold the sacredness of the matrimonial tie and punish the intruders, there remain many lacunas and loopholes. The penal provision of adultery is one of them. 

The objective of the article is to achieve the following goals:

  1. To analyze the judgment of Joseph Shine v. Union of India
  2. To address such debated issue of exemption from the legal point of view and under the present social context.

General definition

Generally, adultery refers to the illegitimate relationship with the opposite sex; sexual intercourse between individuals who are not married to each other. The term ‘adultery’ has its origin in the Latin term ‘adulterium’. The term comes from the words ‘ad’ (towards) and ‘alter’ (other).[1] At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse. Under the Common Law, the crime of fornication consisted of unlawful sexual intercourse between a married woman and a man, regardless of his marital status is adultery. Almost every religion condemns it and treats it as an unpardonable sin.2 however, this is not reflected in the penal laws of countries. 

The question of the constitutional validity of Section 497 of the Indian Penal Code and Section 198 of the Criminal Procedure Code has arisen before the Supreme Court multiple times.

In the case of Yusuf Abdul Aziz v State of Bombay[2], the appellant was being prosecuted for adultery under Section 497 of the Indian Penal Code. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional validity of the provision, under article 228. The case was decided against the appellant by observation was made by Justice Chagla about the assumption underlying Section 497:

“Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasizes that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are passed, when women were looked upon as property by their husbands.”

A narrow challenged was addressed before the Court. The challenge was only to the prohibition of treating the wife as an abettor. It was considered violative of Article 14 of the Indian Constitution. However, the court held that this provision was saved by clause (3) of Article 15 of the Indian Constitution which provides for special provisions in the case of women and children.

The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, this section was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole. A person engaging in sexual relations with the wife of another man won’t be charged for adultery if the husband of the wife so involved gives his consent. This clearly indicates how women are objectified in the hands of their husbands.

In one more case, Sowmithri Vishnu v Union of India[3], three grounds of challenges were kept in front of the court. First, Section 497 gives the right to the husband to bring an action upon the adulterer but does not give this right to the wife to prosecute the woman with whom her husband has committed adultery. Second, the section does not give the wife whose husband has committed adultery to prosecute him and third, it doesn’t cover cases in which the husband has sexual relations with an unmarried woman.

At first blush, it may appear as if it is beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in a kind of romantic paternalism which stems from the assumption that women are like chattels of men. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other hand, it does not protect the other woman. In this judgement, it was said by Chandrachud, CJ that by definition, the offence of adultery can be committed by a man and not by a woman.

The task of making this provision gender-neutral is the job of the Legislative. The judgement says that:

“…It is commonly accepted that it is the man who is the seducer and not the woman. The position may have undergone some change over the years, but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to make note of the ‘transformation’ which the society has undergone.”

This case fails to deal with the actual problem, i.e. the aspects of constitutional jurisprudence which have a bearing on the validity of Section 497.

In another case, V Revathi v Union of India[4], the court noted that this section does not allow either the husband of the offending wife to prosecute her nor does it permit the wife of the offending husband for being disloyal to her. It was held that since neither of the spouses can bring a charge against their disloyal and offending spouses, therefore, this section doesn’t discriminate on the ground of sex.

2. ISSUES

Whether Section 497 IPC is unconstitutional?

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.

3. JUDGMENT

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.

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 judgements, 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 –

3.1SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY INVALID.

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 recognize 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 for choices. Respect for sexual autonomy is established only when both 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.

3.2 SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE.

A crime is something that is committed on 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 marriage. However, it continues to stand as a civil wrong and 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 to lead them to this stage. Hence, declaring adultery as a crime would somehow creep injustice into the system.

3.3A HUSBAND IS NOT THE MASTER OF HIS WIFE.

The judgment 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.

3.4 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. ANALYSIS

In the instant case, the Supreme Court struck down Section 497 IPC. With a single stroke of a pen, the Court has added its bit to endanger the institution of marriage. Winds have been cast to dilute the institution upon which the strong foundation of the Indian Society rests. The deterrence effect has been outrightly blown. This cessation will lead to rapid profiling in the crimes related to adultery. With absolute rights come absolute consequences. Hence, this verdict can lead to sexual anarchy. Adultery is no longer a criminal offence now. It is just a civil wrong for which divorce is the remedy.

A moral wrong can never be a legal right. The reasons are unconvincing and hence this cannot become Lex Loci. If Adultery is not a crime or a wrong, then obtaining a divorce on this ground would be an unending chase.

Criminal law is a guardian of the historical roots and moral principles of the society.

“If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter-narrative would always exist.”

In-State of UP v. Deoman Upadhyaya[5], Constitution Bench of the Supreme Court observed:

“In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.”

Even the Legislative intent was to protect the women. That’s why the Law Commission while drafting the new Penal Code in 1847 rendered only the male offender liable. Moreover, it is for the legislature to decide what is a crime and what is not.

Adultery, though an intervention in the right to privacy, wrecks the life of another person. It doesn’t only affect the offending spouses and the victim spouses but also takes down with it the children and the families associated. With rights come duties and absolute rights destabilize a society. The children will be left in a lurch with divorce as the only option left. The present judgment does not provide for any remedies for the children born out of such adulterous marriages.

Section 497 IPC acted as a deterrent so that the adulterer does not commit the same crime again. The law didn’t fail to prevent adultery, but the enforcement did. Just because of this reason, it cannot be decriminalised. A whole house can collapse with the collapse of a single brick. Crime rates in rape, murders etc. are also increasing rapidly but these are not decriminalised relying on this argument.

India is still a semi-feudal and conservative nation. So adjudication merely on the notions of the western countries is not possible. Many factors concerning the socio-economic order of the country need to be considered.

It was well observed by Justice Frankfurter in Trop vs Dulles[6]:

“All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune from this human weakness. It must always be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint on it is self-restraint. The Court must observe fastidious regard for limitations on its own powers, and thus preclude the Court giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit on the wisdom of Congress or the Executive Branch.”

As observed by the Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi[7], “Adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges preferences “, and as held in State of Bihar vs Kameshwar Singh[8], “The legislature is the best judge of what is good for the people by whose suffrage it has come into existence.”

The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under Section 306 relating to abetment of suicide will take place.

It would have been balanced if the section was amended instead of being struck down. The exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of it”.

Instead, Section 198 of Code of Criminal Procedure, 1973 should have been struck down as it prevents wives from filing complaints against adultery.

As rightly cited by J. Indu Malhotra in her judgment that “Women are no longer invisible to law, and they no longer live in the shadows of their husbands.”

  1. Recommendations for Reform by Law Commission

The Fifth Law Commission of India, as early as in 1971 recommended that the exemption of the wife from punishment for committing adultery to be removed from S. 497 IPC. It also felt that imprisonment for a term up to five years (stipulated in Section 497) was “unreal and not called for in any circumstances”. The recommended Section 497 reads as:

“497. Adultery.—If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

However, the Joint Select Committee substituted the above revised Section 497 by the following: “Whoever has sexual intercourse with a person who is, and whom he or she knows or has reason to believe to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape, commits 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.

“Inspired by the spirit of equality the Fifth Law Commission and the Joint Select Committee have thus shown their inclination to the equality of the sexes by recommending equal culpability for the “man” as well as the “woman” for committing adultery. Surprisingly, however, for reasons best known to them, neither the Law Commission nor the Joint Select Committee has shown any sensitivity to the equally pertinent traditional proprietary rights of the “husband” over his “wife” and to the subordination of woman in the Indian family institution. Mrs Anna Chandy, one of the distinguished Members of the Fifth Law Commission, voicing her reservations about the revised Section 497 suggested by her other colleague Law Commissioners, observed[9]:

“The wife being considered the husband’s property, the present provision reserves for the husband the right to move the law for punishing any trespass on it, while not giving the wife any corresponding right to complain against any transgressions on the part of or relating to her husband. Perhaps to make amends for this harsh discrimination, the present section provides that the wife should not be punished along with the trespasser. The removal of this exemption clause does not cause damage to the basic idea of the wife being the property of the husband. On the other hand, it merely restates the idea and adds a new dimension to it by making not only the trespasser but the property also liable to punishment. This, as noted before, can hardly be considered a progressive step.”

It is pertinent to note that recently in 1997 the Fourteenth Law Commission, in its 156th Report[10] on the Indian Penal Code, endorsed, with minor modifications, the proposal for reform recommended by the Joint Select Committee. It also stressed that changes suggested in its revised Section 497 IPC be made in Section 198(2) CrPC. The Apex Court, curiously, did not attach any judicial significance to the proposal for reform recommended by the Fifth Law Commission and of the Joint Committee approved by the Rajya Sabha. It could have justifiably relied upon these proposals to inject gender equality in the adultery law. But it preferred to assert, time and again, that it is for the legislature to take cognizance of the social “transformation” and the changed values as they involve questions of “policy of law”.

6. Proposal for Legal Reform:

In most parts of the European Union, including England, Austria and Italy adultery is not considered to be a criminal offence anymore.[11] In the United States of America the law of adultery varies from one State to another; however, after the decision in Lawrence v. Texas[12]by the U.S. Supreme Court the validity of adultery law is under debate.48 Though Islamic countries like Afghanistan, Nigeria, Pakistan, Yemen, Sudan, Saudi Arab and Iran have provisions for the death penalty as the maximum punishment for adultery the concept is deeply rooted in the traditional, religious view of Shariah.49

However, the penal law of adultery in India is grounded on the one-and-a-half century old caste-based stratified “social setting” in the context of the traditional conservative property-oriented familial ideology and sexual mores. It is also premised on a few outdated and moot assumptions of sexuality, sexual agency and unequal mutual marital rights and obligations of the spouses.[13] It, in the ultimate analysis, unmistakably intends to protect the rights of the husband and not of the wife.[14] It is also bridled with deep-rooted obsolete assumptions predominantly premised on gender discrimination and the wife’s sexuality. 

Considering the social, historical and religious norms, section 497 should not be removed from the PC but it is recommended that both the man and the wife should be made guilty as there is no valid justification “for not treating the guilty pair alike”. The punishment for adultery should also be scaled down from the maximum punishment from five years to two years as the existing punishment is “unreal and not call for in any circumstances”. The recommended section is as follows: 

“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to believe to be the wife or husband as the case may be, of another person, such sexual intercourse not amounting to the offence of rape, commits 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.”

7. Conclusion

Within these 150 years after the codification of the Penal Code, there has been a huge change in society; women are no longer considered to be the chattel of her husband. During the post-PC period, a number of Acts have been enacted to relieve women from the hitherto traditional system of seclusion and subordination and to assure them a status equal to men in every walk of life. Women are taking part in all activities of the development of the country and the social approach to a woman has changed to a positive notion. Such a law in the 21st century undoubtedly seems to be inconsistent with the modern notions of the status of women and the constitutional spirit of gender equality. 

In view of the emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and changed social conditions, so Section 497 of the Indian Penal Code, 1860 as unconstitutional being unjust, illegal and arbitrary and violative of fundamental rights and to be declared as unconstitutional.

It has been said in Latin maxim, “Lex Injusta Non Est Lex,” that an unjust law is no law. It is contended that statute must be enacted justly because reasonableness and non-arbitrariness are the hallmarks of a constitutionally valid law.

Section 497 of IPC are antiquated, unreasonable and arbitrary making them unjust and as contended above ‘unjust law is no law’.

[1]Jovan Payes, “Adultery and the Old Testament”, accessed 12.06. 2013

2 Encyclopaedia Dictionary of Religion (The sisters of St. Joseph of Philadelphia 1979) 

[2]1954 SCR 930.

[3]1985 Supp SCC 137

[4](1988) 2 SCC 72

[5]1960 AIR 1125

[6](1958) 356 US 86

[7]2001 AIR para 54

[8]1952 1 SCR 889

[9] Note by Mrs Anna Chandy, Law Commission of India, Forty-second Report: Indian Penal Code, supra fn 2

[10] Law Commission of India, One Hundred Fifty-sixth Report: Indian Penal Code (Government of India, 1997), para 9

[11] Ruth A. Miller, The Limits Of Bodily Integrity: Abortion, Adultery, And Rape Legislation In Comparative Perspective at 122-23 (Ashgate 2007)

[12] 539 U.S. 558.

[13] K.I. Vibhute “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective (2001) 6 SCC (Jour) 

[14] Alamgir v. State of Bihar, AIR 1959 SC 436 (439).

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