An Overview Of The Provision Adultery

Author: Divi Bhargavi Student, Presidency University, Bengaluru


The term adultery is derived from a French term, ‘Adulterium’ which means to corrupt. Section 497 of Indian Penal Code[i] has a history of 150 years. Since its commencement, it has been the subject of several debates and controversies as it was discriminatory on the grounds of sex. Adultery means a consensual extramarital sexual relationship between two adults, which is highly objectionable by Indian religious beliefs and cultures. Earlier adultery was a punishable offence, but later it was decriminalized on the grounds of it being unconstitutional. Now it is a civil wrong and is no more a crime. Section 497 of Indian Penal Code deals with the offence of adultery under Indian Penal Code. It says that a husband of wife can file a complaint against the man with whom his wife is said to be having adulterous relationship. On the other hand, wife of the alleged man have no right to file a complaint on the same grounds.

ANALYSIS OF THE SECTION

The section does not penalize the sexual relationship of a married man with an unmarried woman or with widow or with married women who has the consent of her husband to carry out extramarital relationship with the said man. The husband of the wife, who is said to be having adulterous relationship, can only prosecute the adulterer but not his wife. The consent of the said adulterous wife is immaterial. She cannot be prosecuted even if she is the abettor. It makes it clear that, adultery is a crime against the husband of the adulterous wife and is not a crime against the wife of the adulterous husband.

Illustration: Say, Ram (h1) is married to Shreya (w1). Krishna (h2) is married to Kaveri (w2). Ram (h1) maintained a voluntary extra marital sexual relationship with Kaveri (w2) without the consent of krishna (h2). In this case, only Krishna (h2) can file complaint against Ram (h1) for having adulterous relationship with his wife without his consent. While on the other hand, Shreya (w1) cannot complain for the same. This is a crime against Krishan (h2), but not against Shreya (w1).

In the case of Yusuf Aziz v. The State of Bombay[ii], the validity of adultery provision is questioned on the grounds of it being gender discriminatory and violative of Article 14 of the Indian Constitution. The Supreme Court ruled that exception given to women for not being prosecuted under section 497 of Indian Penal Code is not discriminatory and is valid according to the provisions of Article 15(3) of Indian Constitution[iii]. In the case of Sowmithri v. Revathi[iv], it was held that the policy not to punish adulterous is that the women cannot be questioned. It court further observed that, section 497 of IPC was not drafted to make a weapon of quarrel between husband and wife. In this case the court opined that the man is a seducer but not the woman. 

Ingredients of the section:

  1. There should be a sexual intercourse between a man with a married woman or with a woman who is believed to be married.

  2. The sexual intercourse between the man and married woman should be without the consent of the husband of the married woman.

  3. The said sexual intercourse should not fulfil the required essentials of the provisions. So the intercourse between should be consensual.

In the case of V. Revathi v. Union of India[v], it was held that the provision of adultery was not violating the constitution on the grounds of it being gender discriminatory. It favours the women rather than discriminating.

ADULTERY IN THE PERSPECTIVE OF RELIGION

For Indians, regardless of religion, marriage is a sacred, pious and holy union of a man and a woman. A man’s extramarital affairs were observed in ancient India. It had seen a married man having an illicit affair with another woman, but a married woman having an illicit sexual relationship with another male outside of marriage was not well known.

  1. Hinduism is never in favor of adultery, it is considered to be a moral sin. However, Indian mythology depicted illustration of gods, where they themselves engaged into adulterous relationships. But, adulterous relation of a wife is not very common and acceptable. For example, Lord Rama directed his brother, Lakshmana to banish his wife Sita into forests because of the allegation of adultery. Hinduism believes marriage to be sacred and holy. Practitioners of Hinduism expect husband and wife to stay loyal with each other. Husband and wife are not expected to have extramarital sexual relationships with others.

  2. Christianity considered adultery to be a sin. And for the commission of this sin, the committers deserve death. Christianity believes adultery to be a moral crime.

  3. According to Islamic policy, rape, adultery, female genital mutilation and molestations are unlawful and are considered as Zina. In Quran, for commission of Zina, the punishments are already fixed by god. For commission of adultery an exclusive punishment of stone pelting is mentioned.

Since ages section 497 was subjected to many debates. Research scholars kept forth their opinion that adultery was discriminatory as it does not prosecute women though she is the seducer or abettor for the crime. In the year 2018 in the case of Joseph Shine v. Union of India[vi], section 497 of Indian Penal Code was struck down by the Supreme Court stating that it was unconstitutional and is discriminatory on the grounds of sex. It was held unconstitutional by a constitutional bench with five judges comprising Justice Deepak Mishra, Justice Ajay Manikaro Khanwilkar, Justice Rohinton Nariman, Justice D.Y.Chandrachud and Justice Indu Malhotra. It was held that if the spouse of the aggrieved or alleged person commits suicide, then the section acts as abettor of that suicide. Though section 497 was not valid anymore it continues to be a valid ground to seek divorce.

ANALYSIS OF CASE JOSEPH SHINE v. UNION OF INDIA

The petitioner Joseph Shine had not personally had nexus in the provision. He was an hotelier from Italy. He filed a writ petition in the Supreme Court challenging the constitutionality of section 497 of Indian Penal Code[vii] and section 198 of CrPC[viii] on the grounds of it being contrary to section 14, 15 and 21 of Indian Constitution. A constitutional bench of five judges was constituted for hearing of the petition.

Contentions of the petitioner.

The petitioner contended that the provision of adultery is violating Article 14- Equality before law, Article 15- Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth and Article 21- Protection of life and personal liberty. The petitioner contended that the provision is of the notion that a woman is the property of man. The provision makes it clear that, if the husband of wife gives the consent for outside marriage sexual relationship, then no act of adultery is committed. The petitioner argued that the provision of adultery empowers the husband of the adulterous wife to prosecute against adultery. The wife of adulterous husband cannot prosecute him against adultery. The petitioner also contended that the provision is unconstitutional and is eroding the dignity of women.

  1. Contentions of respondent

It was raised that, adultery is an offence which breaks a family and all other relations connected to that web, so punishment for such an offence is mandatory to protect the integrity and piousness of marriage. An extra-marital affair destroys the peace in a family and the mental growth of the children of adulterous wife/husband. This is offence is done by an outsider with full intention and knowledge to degrade the marriage. The provision of adultery and punishment prescribed for the offence is saved from the grounds of discrimination on gender basis, and is protected by Article 15(3) of Indian Constitution which empowers a state to make special laws for the sake of women and children.

  1. Judgment

With considering all the contentions made by both petitioner and respondent, the court struck down the section 497, i.e., adultery. The judgment was passed in the grounds of it being unconstitutional as it was discriminating between man and woman. Now, in the year 2022, adultery is a valid ground for seeking divorce and is no longer considered a crime.

[i] Indian Penal Code, 1860, s 497, No. 45, Acts of Parliament, 1860 (India).

[ii] AIR 1951 Bom 470.

[iii] The Constitution of India, 1950, s 15(3), No. 1, Acts of Parliament, 1950 (India).

[iv] 1988 SCR (3) 73, 1988 AIR 835.

[v] 1988 AIR 835.

[vi] 2018 SC 1676

[vii] Indian Penal Code, 1860, s 497, No. 45, Acts of Parliament, 1860 (India).

[viii] The Code of Criminal Procedure, 1973, s 198, No. 2, Acts of Parliament, 1973 (India).

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