This article is written by Dolly Jeswani, of Nari Gursahani Law College an intern under Legal Vidhiya
ABSTRACT
Adultery, though a legal issue, is deeply personal and emotional. It reflects the pain and complexity of human relationships. In Indian culture, the topic of adultery was traditionally taboo and rarely discussed, especially in public. However, with the rise of urbanization and changes in communication, this topic has become more open, especially as marital breakdowns and extramarital relationships become more common.
KEYWORDS
Adultery, Indian Penal Code, Decriminalization, Divorce, Supreme Court, Section 497, Gender Equality, Constitutional Rights.
INTRODUCTION
Adultery is not merely a legal transgression; it is a profoundly human issue that touches upon the most intimate aspects of trust, commitment, and emotional vulnerability. At its core, adultery represents the breach of a promise—often the sacred vow of fidelity between spouses—which can lead to immense emotional turmoil and heartbreak. It is an act that encapsulates the pain of betrayal, the intricacies of desire, and the complexities of human relationships.The term “adultery” originates from the Latin word “auditorium,” referring to voluntary sexual intercourse between a married person and someone who is not their spouse. This concept, while ancient, continues to carry significant weight in both legal and social contexts.
Under The Hindu Marriage Act, 1955, adultery is recognized as a valid ground for divorce. This means that if one spouse engages in an extramarital affair, the other spouse has the right to seek the dissolution of the marriage through legal channels. Previously, under Section 497 of the Indian Penal Code, 1860, adultery was also a criminal offense, although this section has since been replaced by Section 84 of The Bharatiya Nyaya Sanhita, reflecting the evolution of legal perspectives on the matter.
Traditionally, in Indian society, adultery was considered a deep moral failing and a topic so sensitive that it was rarely discussed in public. The word itself was taboo, and any mention of it in polite conversation was seen as shameful or inappropriate. The idea of questioning marital fidelity was almost unthinkable, especially in the context of conservative values that placed great emphasis on the sanctity of marriage.
However, with the advent of modernization, the proliferation of mass media, and the rise of digital communication, societal norms have undergone a significant transformation. In today’s world—particularly in urban areas—subjects like adultery are no longer shrouded in silence. Open discussions about extramarital affairs, marital dissatisfaction, and the dynamics of modern relationships are increasingly common, reflecting a shift in cultural attitudes.
This societal shift has brought both positive and negative consequences. On one hand, greater openness has led to more honest conversations about personal desires, emotional needs, and the challenges of sustaining long-term relationships. On the other hand, the rise in adulterous relationships has contributed to the disintegration of marriages, emotional distress within families, and the breakdown of traditional household structures.
As we navigate this complex terrain, it becomes essential to view adultery not just through the lens of law or morality, but through a deeper understanding of the human condition. By recognizing the emotional pain it causes, the psychological motivations behind it, and the societal factors that influence it, we can foster a more compassionate and empathetic dialogue around the issue. Ultimately, this awareness can help us build stronger, more understanding relationships and a society that balances individual freedom with emotional responsibility.
DEFINITION
Adultery is referred to be as “Intentional sexual contact between two people of opposite gender who are not legally married to each other”. Put another way, adultery occurs when a married man has a sexual relationship with a woman who is not his wife, or when a married woman has a relationship with a man who is not her spouse. It is deemed adulterous when a man and woman live together and share a bed without getting married, while one of them is married to someone else, it is regarded as an act of adultery.
LEGAL STATUS OF ADULTERY
Adultery is not a criminal offense in India, as the Supreme Court of India ruled in 2018 that Section 497 of the Indian Penal Code was unconstitutional.
The Indian Penal Code 1860
Section 497 Adultery States if a man has sexual relations with a married woman, and he knows she is someone else’s wife, and her husband has not agreed to it, then it is considered adultery. This is only the case if it is not rape. The man can be punished with jail for up to five years, or he may have to pay a fine, or both. The woman will not be punished for this act, and she cannot be treated as someone who helped commit the crime.
In December 2017, the Supreme Court accepted a public interest litigation (PIL) that aimed to invalidate or entirely abolish Section 497 of the Indian Penal Code due to this problematic interpretation
There have been arguments laid down before appellate Court that the section breaches Articles 14 and 15 of the Indian Constitution.
Article 14 states that “The State shall not deny to any person equality before the law or the equal protection of the laws within theterritory of India.”
Article 15 states that “The State shall not discriminate against any citizen on the basis of religion, race, caste, sex, place of birth, or any of them,”
Key Aspects of Section 497 of The Indian Penal Code,1860
- Adultery involves voluntary sexual intercourse between two individuals.
- One of the parties involved must be married. The married person can be either the husband or the wife.
- The person committing adultery must know or have reason to believe that the other person is married.Ignorance of the marital status is not a defense (Ignorantia Facti Excusat and Ignorantia Juris Non Excusat).
- Husband or wife has not given consent for sexual intercourse.
- Adultery must be a voluntary act by both parties. If the act is committed under coercion, duress, or undue influence, then doesn’t Constitute adultery.
The Code of Criminal Procedure, 1973
Section 198(1) states that “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence Provided that” –
A. If the aggrieved person is a minor, or mentally or physically incapacitated, someone else can make a complaint on their behalf with the court’s permission.
B. If the aggrieved person is a husband serving in the armed forces, someone else can make a complaint on his behalf if certified by his commanding officer
DECRIMINALIZATION OF ADULTERY IN INDIA
The origins of Section 497 can be traced back to the colonial era enshrined in a 150-year-old statute.
In the case of Sowmithri Vishnu v. Union of India (1985), Sowmithri Vishnu, a married woman, was involved in a relationship with another man, D. Vishnu. When her husband found out, he filed a complaint under Section 497 of the Indian Penal Code (IPC), which made adultery a punishable offense. the Supreme Court (2:1 judgment) upheld the constitutionality of Section 497 but expressed dissatisfaction with its gender-specific nature, rejecting the argument that it was discriminatory and violated the right to equality. And also held that the husband’s consent was not necessary to prosecute the adulterer.
Justice R.B. Misra dissented from the majority opinion, arguing that Section 497 was discriminatory and violated the right to equality.
The Sowmithri Vishnu case reinforced the existing patriarchal norms and the notion that women’s bodies and relationships were subject to state control. However, it also laid the groundwork for future challenges to Section 497, ultimately contributing to its decriminalization in 2018.
In Joseph Shine v. Union of India (2018), Joseph Shine, a non-resident Indian, filed a public interest litigation (PIL) under Article 32 of the Constitution, challenging the constitutionality of Section 497 of the IPC and Section 198(2) of the Code of Criminal Procedure (CrPC), arguing that it was arbitrary and discriminatory. A five-judge Constitution Bench unanimously held that Section 497 was unconstitutional, violating Articles 14, 15, and 21 of the Constitution, which guarantee equality, non -discrimination, and protection of life and personal liberty.
The Major Issue involved in the case was-
- Whether Section 497 of IPC is constitutionally valid?
- Whether Section 198(2) is constitutionally valid?
The court held that the section was based on gender stereotypes and treated women as the property of their husbands. It denied women sexual autonomy, agency, dignity, and privacy in a married relationship and continued to subjugate them by criminalizing adultery and penalizing solely men. Married women cannot be considered the property of their husbands in accordance with the principles of substantive equality, constitutional morality, and dignity. Sexual autonomy and human sexuality are fundamental components of an individual’s identity and character. Section 497 provision of “protective discrimination” to married women was unconstitutional paternalism because it did not address subordination; rather, it reinforced it. Although Parliament has the authority to enact laws, making adultery a crime would force the State to encroach on the forbidden territory of extreme private pertaining to a husband and wife’s marriage. In view of these conclusions, the Supreme Court struck down section 497 as unconstitutional, overruling its earlier judgments and it is a landmark judgement in context of decriminalization of adultery.
ADULTERY AS A GROUND FOR DIVORCE
Adultery is often one of the main reasons people seek a divorce. It happens when one spouse has a sexual relationship with someone else outside the marriage without their partner’s consent. adultery remains a fault-based ground for divorce under the Hindu Marriage Act. This means that if one spouse commits adultery, the other spouse can file for divorce, citing this as the reason for the breakdown of the marriage. Adultery can be proven through various forms of evidence, such as:
- Direct evidence (e.g., confessions, photographs, or witness testimony)
- Indirect evidence (e.g., phone records, text messages, or emails showing an extramarital affair)
If adultery is proven, it can significantly influence the outcome of the divorce proceedings, including issues of Alimony, Custody, Division of Assets.
CONCLUSION
The Article concludes by emphasizing the social and legal evolution of adultery laws in India, particularly through the 2018 Supreme Court judgment that decriminalized adultery. This decision represents a significant step forward in the fight for gender equality and the protection of personal autonomy in marital relationships. Despite decriminalization, adultery continues to have legal implications, particularly in divorce cases, highlighting its ongoing relevance in contemporary society. we must recognize the agency and autonomy of individuals and create a more inclusive and equitable society for all. The debate around adultery forces us to confront our biases and assumptions, and to shape societal norms through the law.
REFERENCES
- ABP News Bureau, Supreme Court quashes Section 497, says “adultery not a criminal offence” Live News Today (2018),
https://news.abplive.com/news/india/adultery-can-be-treated-as-civil-wrong-but-not-criminal-supreme-court-760349 (last visited Mar 14, 2025).
- Advocatekhoj.com, Adultery+definition: Adultery+divorce: Areas of law: Law library AdvocateKhoj, https://www.advocatekhoj.com/library/lawareas/divadultery/9.php?Title=Adultery%2BDivorce&STitle=Adultery%2Bdefinition (last visited Mar 14, 2025).
- Sci-Hub: Knowledge as a human right, https://sci-hub.se (last visited Mar 14, 2025).
- The indian penal code, 1860 act no. 45 of …, https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf (last visited Mar 8, 2025).
- The code of criminal procedure, 1973 act no. 2 …, https://www.indiacode.nic.in/bitstream/123456789/6796/1/ccp1973.pdf (last visited Mar 14, 2025).
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