Adultery is no longer punishable in India

Section 497 of Indian Penal Code 1860 (IPC) states that “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 of this section held a man criminally liable for committing the offense of adultery against another man who is married by engaging in sexual intercourse with the wife of the married man. There has been a lot of debate and controversy around this particular provision because of discrimination based on gender. A clear interpretation can be gained by reading the provision that only the man is punishable for the offence and is sentenced to imprisonment of 5 years or a fine or with both. Whereas, the married woman with whom such an offence is committed is not convicted and liable to be punished even though there is equal involvement of both the man and the woman. This implies that section 497 criminalizes adultery only in the case of the man and not the woman. 

Legal implications of adultery

Before analyzing the recent development in Section 497 of IPC, where adultery was decriminalized and held unconstitutional, let us understand its previous implications along with case laws briefly.

Ground for divorce- Adultery has been one of the grounds for divorce under section 13(1)(i) of the Hindu Marriage Act 1955. Section 27(1)(a) of the Special Marriage Act also states that a decree for divorce can be filed on the ground where a husband or wife has voluntary sexual intercourse with another individual other than their spouse after the solemnization of marriage.

If adultery has been proven, then the spouse against whom adultery has been committed can seek relief based on the act of adultery.

Similar provisions have been made under section 2(viii)(b) of the Dissolution of Muslim Marriage Act 1939 and section 10(1)(i) of The Divorce Act 1869 under Christian laws.

Case Laws

Adultery was first challenged in Yusuf Aziz v State of Bombay, stating that it violates the fundamental rights under Articles 14 and 15 of the Indian Constitution. It was contended that the provisions of section 497 discriminated against men as only the man is convicted for an adulterous relationship. However, the contention of the petitioner was struck down and held that the section is constitutionally valid under Article 15 of the Indian Constitution. 

Previously it was considered by the courts that most women were victims of adultery and cannot be punished as perpetrators.

In another case of V Revathy v. Union of India, it was held by the court that the motive behind not prosecuting women in cases of adultery was for protecting the sanctity of marriage and consequently promoting the good character of women. Thus, adultery did not infringe or violate any constitutional rights, which were upheld in this case.

Current Scenario

With all the ongoing debates and controversies about adultery and the discrimination against men, the Supreme court of India in 2018 changed the scenario of adultery in India. In Joseph Shine v. Union of India, section 497 was challenged where it was contended by the petitioners that criminal law should be used as a last resort for social control and not for checking or controlling the morality of the individuals. 

The Supreme Court struck down the provision of section 497 by decriminalizing and holding it unconstitutional. It was held by the court that this provision was discriminatory and based on gender stereotypes violating the constitutional right under Article 14 of the Indian Constitution.

However, certain other points were focused while pronouncing the judgment where it was observed by Justice Dipak Misra that, if a man is engaged in sexual intercourse with the wife of another man without her consent then it will amount to rape. If such an act is done with the consent of both the adults, then the act will not qualify to be an offence under section 497. 

Conclusion

The decision of the Supreme Court of decriminalizing adultery was applauded across the whole of India and eminent lawyers as well as citizens and activists. Decriminalization was necessary to free women from the shackles of “patriarchal control.” Because previously when adultery was an offence and men involved in such acts were convicted of the offence, it was misutilized and resulted in bringing up too many false cases. Thus it was crucial to bring a change where the unfaithfulness of a woman in a marriage can be brought up instead of punishing only the man for involving in such an act. 

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