Critical Study on Decriminalization of Adultery
Author: Apratim De
Volume 1 Issue 1
ISSN: Applied for…
Authors Note:- In this research paper the author has tried to discuss the laws related to adultery from the past, the latest amendments and had tried to critically analyze the viability of the decision passed by the apex court on the same.
“ Adultery is not always the cause of an unhappy marriage but sometimes it is also the result of an unhappy marriage.”
Yes, u heard it right. Adultery is not always the cause for the failure of marriage but sometimes it is the result of a failed marriage. Most of the times people fail to understand this or are not able to move out of such a marriage due to several factors among which most of the evident ones are the family pressure and the societal pressure and thus this is where people start indulging in acts like fidelity and adultery.
Law is an instrument of social change. It is a way by which the people who are oppressed can get justice from the oppressor and also it helps to maintain an equilibrium in the society by preventing the people from turning into barbaric and thus being inhuman.
“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 offense 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 laws related to adultery were introduced by in 1860 of the Indian Penal Code. According to Lord Macaulay, an Indian Woman is a holy cow who can never do any wrong. It is the man who commits all the wrong. Moreover, he believed that the women should neither be punished for committing adultery as this would not only be a threat to the holy sanctity of the women but also it would lead to a breaking of the institution of marriage thus leading to family disorganization at large.
Earlier when Section 497 was in force the following were the essential ingredients of the adultery:-
NOTE:- It has to be understood that adultery can only occur when there is sexual intercourse between a married woman and a man without the consent of the husband but with the consent of the wife. Also if the sexual intercourse takes place with the consent of the husband then it would not amount to adultery.
Status of laws related to adultery in other countries of the world
Causes of Adultery
Some of the causes of adultery are as follows:-
Consequences of Adultery:-
Critical Analysis of laws related to adultery in India
Recently Section-497 of IPC which earlier used to deal with the laws related to adultery has now been decriminalized after the apex court has passed a unanimous judgment on the same. Also while reading the judgment the former CJI of India Justice Dipak Mishra said that “Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” One of the important observations which the Supreme Court had made while dealing with the case was that the current law on adultery objectifies women and makes them inferior to men thus making them lose their individuality. As Justice D.Y. Chandrachud one of the five members of the ruling bench has rightly said “Physicality is an individual choice,” The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of past”.
So more or less the laws related to adultery have been gender biased as it been rather than providing any relief to the women had worsened the situation for them. As because many times it has been seen that in most of the divorce cases the husbands have tried to use adultery as a ground to exempt themselves from paying maintenance to their wives. Also, the Supreme Court has observed that decriminalizing of adultery does not mean that it gives license to carry out extramarital affairs. Rather if adultery is found to be a reason for commission of suicide by the spouses then it would lead to the prosecution of the other spouse committing the same.
Also, this section is gender biased as because under the following section a wife cannot file a suit against the women with whom her husband who is involved in adultery as because under this section only the husband can file a suit against the male partner of his wife with whom she is involved in adultery. So, as a result, this creates inequality between both of them.
As it was observed in the case of Revathi v. Union of India where the court had observed that a woman cannot file a suit for adultery as because firstly in the eyes of law a woman can never do such a wrong it is the men who always do so. Moreover, the laws of adultery were drafted with the view that the women can never do any wrong it is the men who do so. As Lord Macaulay had once said that Indian women are a holy cow. Also, the framers of the code believed that a husband should never prosecute his wife for adultery as because it would not only lead to a breakdown of the institution of marriage but would also lead to family disorganization.
So now as Section-497
of IPC has been decriminalized so it means that now commission of adultery is
no longer a punishable offense unless it leads to abetment of suicide. But the
laws related to adultery in India has always been a part of controversy because
of many factors like firstly it is gender biased then secondly under the
previous laws only the husband can prosecute and not the wife. As a result,
this had lead to the objectification of the women and had reduced them to a
mere object rather than being an individual. Also, the older laws were in
conflict with the personal laws of many communities where polygamy is allowed. So,
as a result, the previous laws on adultery were not sufficient and needed an
amendment rather than eliminating it totally from the statute book.
 B.A.L.L.B 3rd yr New Law College, Bharti Vidyapeeth Deemed to be University Pune.
 “Indian Penal Code“. Section 497, Act of 1860