This article is written by Gauri Gupta, Second year student at Faculty of Law, University of Delhi.

Adultery is a form of marital infidelity that is often considered a moral wrongdoing. In India, adultery is also considered a legal wrongdoing and is punishable under the Indian Penal Code (IPC). The law on adultery in India has evolved over the years, and the Supreme Court has played a crucial role in interpreting and shaping the law. This article will discuss the provisions of the IPC relating to adultery and the various case laws that have dealt with the issue.

Provisions of the IPC on Adultery:

Section 497 of the IPC deals with adultery and 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 offense of rape, is guilty of the offense 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.

The section makes it clear that only men can be prosecuted for adultery, and women cannot be prosecuted either as the offender or as the aggrieved party. This has been criticized by many as being discriminatory towards women and promoting gender bias.

The section also places a restriction on the right of the husband to prosecute the offender. The section states that the husband cannot prosecute the offender unless he has connived or consented to the sexual intercourse. This means that if the husband has not consented to the sexual intercourse, he cannot prosecute the offender, and the offender cannot be punished for the offense of adultery.

Case Laws on Adultery:

Over the years, the Supreme Court has dealt with several cases related to adultery and has interpreted the provisions of Section 497 of the IPC. Some of the landmark cases related to adultery are discussed below:

• Yusuf Abdul Aziz v. State of Bombay (1954):

This case is one of the earliest cases dealing with the issue of adultery. The Supreme Court held that Section 497 of the IPC was not violative of the Constitution and that the restriction on the right of the husband to prosecute the offender was valid. The court also held that the offense of adultery was not against the wife, but against the husband, and that the wife had no right to prosecute the offender.

• Sowmithri Vishnu v. Union of India (1985):

This case challenged the constitutionality of Section 497 of the IPC on the grounds that it violated the fundamental rights of equality and non-discrimination enshrined in the Constitution. The Supreme Court held that the section was indeed discriminatory towards women and that it violated their right to equality. The court, however, did not strike down the section and left it to the legislature to make changes to the law.

• V. Revathi v. Union of India (1988):

This case dealt with the issue of the validity of the exception to Section 497 of the IPC, which exempts sexual intercourse between a husband and his wife from the offense of adultery. The Supreme Court held that the exception was discriminatory towards women and that it violated their right to equality. The court also held that the exception was based on the outdated notion that a wife was the property of her husband and that it needed to be struck down.

• Joseph Shine v. Union of India (2018):

This case challenged the constitutionality of Section 497 of the IPC and the exception to the section, which exempts sexual intercourse between a husband and his wife from the offense of adultery. The Supreme Court struck down both the section and the exception on the grounds that they were violative of the fundamental rights of equality and non-discrimination enshrined in the Constitution, and that they perpetuated gender stereotypes and placed an unnecessary burden on the autonomy of women.

Impact of the Joseph Shine Case:

The Joseph Shine case has been hailed as a landmark judgment that has brought about a significant change in the law relating to adultery in India. The judgment has been widely applauded for recognizing the right to sexual autonomy of women and for striking down a provision that was discriminatory towards them.

The judgment has also been criticized by some who argue that it has diluted the sanctity of marriage and has made it easier for people to indulge in extramarital affairs. It has been argued that the judgment will have an adverse impact on the institution of marriage and will lead to an increase in the number of divorces.

However, it is important to note that the judgment does not condone or promote extramarital affairs. It merely recognizes the right of individuals to make their own choices about their sexual lives and to not be penalized for it. The judgment also recognizes that marriage is a partnership between equals, and that the autonomy and dignity of both partners need to be respected.

Conclusion

In conclusion, the issue of adultery is a complex one that is fraught with moral, social, and legal implications. The law on adultery in India has undergone significant changes over the years, with the Supreme Court playing a critical role in shaping it.

The recent judgment in Joseph Shine v. Union of India is a significant milestone in the evolution of the law on adultery in India. The judgment has recognized the right to sexual autonomy of women, and has struck down a provision that was discriminatory towards them. The judgment has also recognized that marriage is a partnership between equals, and that the autonomy and dignity of both partners need to be respected.

While the judgment has been criticized by some who argue that it has diluted the sanctity of marriage, it is important to note that the judgment does not condone or promote extramarital affairs. It merely recognizes the right of individuals to make their own choices about their sexual lives, without being penalized for it.

The Joseph Shine case is an important step towards gender equality and the empowerment of women. It has brought about a significant change in the law, and has highlighted the need to eliminate gender stereotypes and discrimination from the legal system.

However, there is still a long way to go in achieving gender equality in India, and the law on adultery is just one aspect of this struggle. It is now up to the legislature to make changes to the law that reflect the changing realities of Indian society and the principles of equality and non-discrimination enshrined in the Constitution. The legislature needs to take a holistic approach to the issue of gender equality, and work towards eliminating all forms of discrimination against women.

In conclusion, the Joseph Shine case is a landmark judgment that has brought about a much-needed change in the law on adultery in India. It has recognized the right to sexual autonomy of women, and has struck down a provision that was discriminatory towards them. It is now up to the legislature to build on this judgment, and work towards achieving gender equality and empowerment of women in all spheres of life.

References: 

1. Joseph Shine v. Union of India, (2018) 10 SCC 628.
2. Indian Penal Code, 1860.
3. The Constitution of India, 1950.
4. Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.
5. Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
6. V. Revathi v. Union of India, AIR 1988 SC 835.
7. Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
8. Section 497 of the Indian Penal Code (amended in 2018).
9. Section 198 of the Code of Criminal Procedure, 1973.
10. The Protection of Women from Domestic Violence Act, 2005.
11. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
12. The Maternity Benefit Act, 1961.
13. The Equal Remuneration Act, 1976.