Adultery

Section 497 of the Indian Penal Code was a section dealing with adultery. Only a man who
had consensual sexual intercourse with the wife of another man without his consent could have
been punished under this offense in India. The law became defunct on 27 September 2018 by a
judgment of the Supreme Court of India. The Supreme Court called the law unconstitutional
because it “treats a husband as the sole master.” However, it is still a sufficient ground
for divorce as ruled by the Supreme Court.
Section 497 read as follows:

Adultery.—
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. In such cases, the wife shall [not] [4]  be punishable as
an abettor.
— Section 497 of IPC

Joseph Shine v. Union of India

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Joseph Shine …Petitioner(s)

VERSUS

Union of India …Respondent(s)

Citation: 2018 SC 1676
Decided on: 27 September 2018
Judges/Quorum: Dipak Mishra, R.F Nariman, A.M Khanwilkar, D.Y Chandrachud, Indu
Malhotra.
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest
litigation under Article 32 of the Constitution. The petition challenged the constitutionality of
the offense of adultery under Section 497 of the IPC.
 
Section 497 IPC criminalized adultery by imposing culpability on a man who engages in sexual
intercourse with another person’s wife.  Adultery was punishable with a maximum
imprisonment of five years. Women, including consenting parties, were exempted from
prosecution.

In India, Adultery law is defined in section 497 of the Indian Penal Code. Section 497 comes
under the purview of the courts several times in the past but every time the Supreme Court
held section 497 as valid. But the Supreme Court on 27 th  September 2018 in the case of Joseph
Shine v. Union of India  1 has brought down the 158 years old Victorian Morality law on adultery.
The petition was filed by a non-resident of Kerala named Joseph Shine who has raised questions
on the constitutionality of section 497 of the Indian Penal Code. The judgment has overruled all
the past judgments which uphold the criminalization of adultery. Now, adultery becomes legal
but it is still not ethical with society. The institution of marriage is based on the trust between
both the partners i.e. husband and wife. Therefore, the Honorable Supreme Court of India does
not interfere in the personal and moral lives of the people. Currently, adultery is only
considered as a civil wrong and the remedy for the act of adultery is the only divorce.
Petition to Decriminalize Section 497
Section 497 adultery is declared null and void being unconstitutional by the Supreme court in
2018 Because of this problematic interpretation, the Supreme Court in December 2017 decided
to accept the public interest litigation in which it has been prayed that the Court strikes down
or completely does away with Section 497 of the Indian Penal Code entirely.
It has been argued that the section violates two articles of the Constitution of India- Article 14
and Article 15.
Article 14 reads as follows: “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.”
Article 15 reads as follows: “The State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them.” [6]
On accepting this petition, 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. It 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.” [7]
The arguments by the party opposing this decriminalization- the Centre- states that the section
“supports, safeguards and protects the institution of marriage… Stability of marriages is not an
ideal to be scorned.” It further argues that if the petition is allowed, then “adulterous relations
will have more free play than now.” As an alternative, it provides that the recommendations of
the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee

1 https://www.scconline.com

recommended that the wording of the section be changed to: “Whoever has sexual intercourse
with the spouse of any other person is guilty of adultery…” to tackle the problem of gender bias
which arises from the reading of the current section
Facts of the Case:
Joseph Shine, the hotelier challenged the constitutionality of section 497 of the Indian Penal
Code. The core reason behind this petition was to shield Indian men from being punished for
extramarital relationships by vengeful women or their husbands. Petitioner’s close friend in
Kerala committed suicide after a women co-worker made a malicious rape charge on him.
Further section 497 is an egregious occurrence of sexuality unfairness, authoritative
imperialism, and male patriotism. The traditional framework, in which section 497 was drafted,
is no longer applicable in modern society. Of course, adultery could continue to be a ground for
aggrieved spouses to seek divorce and if one of the spouses committed suicide because of the
unfaithful nature of his/her partner, then the culprit could be proceeded against for his crime of
abetting suicide under 306 IPC, 1860. The Supreme court-tested section 497 on the touchstone
of the constitutional provision dealing with the right to equality under Article 14 that
guarantees against arbitration and discrimination, with Chandrachud and Malhotra JJ using
privacy, individual autonomy, and precede choice as yardsticks of legality.
Issues:
 Whether section 497 of the Indian Penal Code is unconstitutional?
The petitioner wanted certain problems with section 497 to be addressed:-
 Adultery law provides that man to be punished in case of adultery but no action is
suggested for the women. Hence, it made gender-neutral.
 As per section 497, there is no legal provision that a woman can file a complaint of
adultery against her husband.
 According to section 497, if the husband gives his consent for such an act then such
an act is no more considered as a crime. Therefore, women are treated as an object
under adultery law.

Judgment: –
In December 2017, Joseph Shine has filed a petition raising the question on the constitutional
validity of section 497. A three-judge bench headed by then CJI Dipak Mishra has referred this

petition to a five-judge constitution bench which comprised of CJ Dipak Mishra, and Justices R.F
Nariman, A.M Khanwilkar, DY Chandrachud, and Indu Malhotra.
The decision finally puts India at par with many European and Asian countries such as China,
Japan, Australia, and Brazil where adultery is not a criminal offense. The Court began to hear
the arguments on this petition on 1 August 2018. The Court said that if the party challenging
this section can simply prove that it violates Article 14 of the Constitution of India, then the
section will be struck down. A five-judge Constitution bench of the Supreme Court on 27
September 2018 unanimously ruled to scrap Section 497 and it is no longer as an offense in
India
While reading the judgment, Chief Justice Dipak Misra said, “it (adultery) cannot be a criminal
offense,” however it can be a ground for civil issues like divorce.
Section 497 IPC criminalized adultery by imposing culpability on a man who engages in sexual
intercourse with another person’s wife. Adultery was punishable with a maximum
imprisonment of five years. Women, including consenting parties, were exempted from
prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC
when her husband engaged in sexual intercourse with an unmarried woman. This was because
of Section 198(2) of CrPC which specified how a complainant can file charges for offenses
committed under Sections 497 and 498 IPC.
As we held that Section 497 IPC, 1860is unconstitutional and adultery should not be treated as
an offense, it is appropriate to declare section 198 CrPC which delas with the procedure for
filing a complaint concerning the offense of adultery as unconstitutional.


Conclusion:
The debate on the law of adultery in India has proceeded in two fixed, unmoving directions:
while the Court justifies the provisions by implying that women are not fit to be given agency,
men’s rights activists (vengefully) demand that the provision be reassessed to remove the
woman’s immunity from prosecution. Both are excessively patriarchal ways of looking at the
situation. The reserved judgment has the option of departing from these lines of argumentation
and focusing on the main issue: the disempowerment of women in criminal law.
It must be kept in mind that the deletion of these provisions does not mean that there are no
legal consequences for engaging in adultery.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.