According to Indian law, Section 497 of the IPC criminalizes adultery and imprisonment and fines of up to five years. Only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished under this offence in India. Section 497 of Indian Penal code (IPC) 1860, defined adultery as: -“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 a case, the wife shall not be punishable as an abettor”.
Adultery was treated as a crime until the decision of Hon’ble Supreme Court in Joseph Shine v. Association of India came and by the time a judgement was delivered, it decriminalized adultery and remained merely a civil wrong rather criminal offense. The Court in its initial observations noted that this was not the first petition challenging the section – debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. The court felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus “creates a dent on the individual independent identity of the woman. While pronouncing its judgment, the apex court said “Equality is the governing principle of a system. Husband is not the master of the wife”.
The adultery law first came under challenge in 1951 in the Yusuf Aziz v. State of Bombay case. Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution[1]. The dominant argument in the court hearing was that Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship. It was also argued that adultery law gave a license to women to commit the crime[2]. In the case of Sowmithri Vishnu v. Union of India (1985) the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery. The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man. The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law[3].
Adultery has been declared illegal in more than 60 nations, including South Korea, South Africa, Uganda, Japan, and others, due to its gender discriminatory nature and violation of the right to privacy[4]. Relationship are becoming not based on love but lust. Adultery is also a threat to Hindu personal laws which is significantly harming the sacred vow of marriage. We have to decide that we want a society of lewdness or virtuousness. In light of this, it is argued that Section 497 is not only an out-of-date rule, but also illegal and a violation of fundamental rights. This law was created when India was still under British Raj, and hence the legislation reflected the patriarchal nature of the society then, as was evident from its language.
[1] Sadaffatimaa14-ADULTERY, adultery – Aishwarya Sandeep, visited on 10-08-2021 at 16:48hrs.
[2] Ibid.
[3] Ibid.
[4] Atharva Kulshrestha-JOSEPH SHINE VS. UNION OF INDIA – CASE COMMENTARY, joseph shine vs. union of india – case commentary – Aishwarya Sandeep, visited on 10-08-2021 at 17:16hrs.
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