www.ijcrt.

org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

LAWS RELATING TO ADULTERY IN INDIA- AN

ANALYSIS
Pranav Gosain
Amity Law School Delhi,
Amity University Campus, Noida – 201303

ABSTRACT :
Adultery is an offence in India, culpable with up to five years detainment under Section 497 of the Indian Penal
Code, 1860. When one sees the reality, the first response is like a shock at the State's obvious interruption into
the apparently private sexual domains of life. The paper starts considering standards managing criminalization
of direct, to decide if some principled avocations exist for criminalizing Adultery. My concentration is towards
the substantive area of the paper: contending that Section 497 must be cancelled by the Legislature, for entomb
alia executing harmful separation between genders. Adultery had been brought under discipline almost 150
years back under the Penal Code 1860 where women were exempted from any reformatory obligation. In spite
of the fact that many arrangements of the Code had been altered amid the traverse and request of time, the
arrangements of Adultery stay unaltered. The significant lawful arrangements have all the earmarks of being
unlawful however the legal elucidations are still for them. This article measures the arrangements of Adultery
from lawful and social point of view of 21st century. It is investigated that the law of Adultery is not only just
damaged yet in addition initiates the additional conjugal sexual connections. Obviously, the law ensures the
women but since of its shortcoming, the law makes the women more powerless in the public eye and
furthermore denies them of legitimate insurance. In the wake of dissecting the issue from every single corner,
the article reasonably sets up the need of correction of the Code.

KEYWORDS:
Women, Sexual Intercourse, Immorality, Improper Conduct, Civil Offence, Criminal Offence

INTRODUCTION:
The Indian Penal Code characterizes 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 case the wife shall not be punishable as an abettor.” 1 The designers of the Code did
not make Adultery an offense culpable under the code. Yet, the Second Law Commission, in the wake of giving
adult thought to the subject, arrived at conclusion that it was not fitting to avoid this offense from the Code.
Adultery figures in the punitive law of numerous countries, and the absolute most observed English legal
counsellors have considered its exclusion from the English law an imperfection.

Under both the criminal law and marital law, Adultery is an offense against marriage and consequently, in the
two cases it is basic that at the season of the offense a substantial marriage was subsisting. To constitute the
1
Section 497, Indian Penal Code (1860)

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 1

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

offense of Adultery it is additionally vital that the respondent (on account of criminal offense, the spouse) was a
consenting gathering. So, the sex must be consensual. On the off chance that the respondent did not assent,
similarly as when she was assaulted, it would not add up to Adultery.

Adultery, the demonstration of being sexually unfaithful to one's life partner, has been basic in human culture
for whatever length of time that one recalls. For what reason do we people think that it’s hard to be dedicated to
our life partners. The most fascinating answer found to this inquiry originated from a transformative way to
deal with Adultery, yet fortunately such vexed inquiries of human unfaithfulness don't inconvenience us here.
What concerns us is the manner by which society treats Adultery. Purviews differ by the way they indict
Adultery: Adultery charges may require more than a solitary demonstration of treachery; definitions may reject
unmarried gatherings from the offense and just subject the wedded party to criminal obligation; the law may
have excluded female lovers limiting risk for the male. Cutting crosswise over most locales is a necessity to
look for earlier assent from the distressed life partner before propelling prosecution. The focusing of women
through these measures attributable to them for the most part more reliant social position has buttressed ideas
that Adultery laws assist a starkly male target of rebuffing the spouse, considered minimal more than asset, for
making questions of paternity and ancestry.

Today, administrators in a large portion of these purviews don't endeavour legitimizing Adultery offenses, or
any offenses so far as that is concerned, by exhibiting the target as one of securing fatherly heredity. The
renaissance brought a convergence of liberal idea into the procedure of criminalization, which now frames the
premise of our comprehension of the subject. In this way, it ends up plainly critical to re-examine on what
balance laws criminalizing Adultery stand.

ORIGIN AND DEVELOPMENT:

The English dialect did not utilize the word until the coming sixteenth century. Its Latin root was first put into
the Bible content around fourth century. At the point when Jerome made an interpretation of the Bible into
Latin, called the Vulgate form, he utilized the Latin word "adulterium" to decipher the Greek word "moichatai"
in the separation entries.

Jerome was a Catholic scholar. Putting this word in the content obliged Catholic religious philosophy. It set into
the Bible a component of help for their "holy observance" hypothesis of marriage. Catholic religious
philosophy and the Vulgate form firmly affected advancements that happened in following hundreds of years. 2
The vulgate rendition turned into the standard Bible utilized as a part of the Catholic Church. Amidst the
sixteenth century the Council of Trent articulated it "bona fide," the official Bible to be utilized as a part of
every single ceremonial movement of the congregation. The English Church was an outgrowth of Catholicism
and it held huge numbers of the regulations of the Catholic Church. Considering "Infidelity" as significance a
sex demonstration offers support to the Catholic thought that the congregation is the determiner of who is
qualified to wed and who is not.

The Geneva Bible interpreters were from England. They made their interpretation in 1560 and exhibited it to
the ruler in 1570. They brought "adulterium" over from the Vulgate form and began "Infidelity" for
their

2
Purpose Statement - http://www.olanhicks.com/?page_ibid=159, last accessed 20th January 2018 at 18.00 hrs.
IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 2
www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

interpretation. This made another word and out of the blue the sexual thought was put into an English Bible as
an interpretation of "moichatai" in the separation sections. after 41 years (1611) the King James form,
additionally made in England, put "Infidelity" in these sections. Practically all interpretations since that time
have kept on following that course. The term “Adultery” is derived from a French word, avoutre, which in turn
is evolved from a distinct Latin verb, “adulterare”, which means to “to corrupt.”

The word “adulterare” is identical to word “adulterium,” which it says means “to adulterate.” Therefore, the
term “adulterate” means “to corrupt, misrepresent, or add superfluous elements.”3 In other words, it indicates
to have an unlawful sexual intercourse with the spouse of another person.

The Framers of the Code did not make Adultery an offence punishable under the code. The Second Law
Commission gave due importance to the subject and concluded that it was not advisable to exclude this offence
from the Code. Adultery figures in the penal law of many nations, and some of the most celebrated English
lawyers have considered its omission from the English law a defect.4 Under both the criminal law and
matrimonial law, Adultery is an offence against marriage and therefore, in both cases it is essential that at the
time of the offence a valid marriage was subsisting. To constitute the offence of Adultery it is also necessary
that the respondent (in the case of criminal offence, the wife) was a consenting party. In short, the sexual
intercourse must be consensual.5 All religions through the world censure it and regard it as an indefensible
offense. Notwithstanding, this may not be reflected in the lawful words of the nation’s however Adultery is
perceived as a strong ground for separation in every single punitive law.

EVOLUTION IN INDIA

Well, 19th century Britain considered married women to be chattel of their husbands in law,6 and a
promiscuous wife was subjected to ostracism far worse than that faced by the unfaithful man. 7 In any case,
regardless of this, Adultery was never a wrongdoing either by statute or customary law. In its prime, Adultery
was a tort, which likewise was annulled in 1857. In this manner, making Adultery crime was in actuality very
unknown to the composers of the IPC.

Lord Macaulay, instrumental in the early drafting process, gave due thought to the likelihood of criminalizing
Adultery in India. He concluded that it would fill little need. For him, the conceivable advantages from making
Adultery as an offense would be better accomplished through monetary remuneration as a rule. He
acknowledged that for alternate cases the law would never give a refined arrangement in managing conjugal
Adultery given the holy idea of marriage.8 Those concerned with concluding the IPC differ and gave us Section
497. Albeit one can follow their legitimization for exempting women from risk under the Section, it is
hard to discover their
3
Purpose Statement - http://www.olanhicks.com/?page_ibid=159, last accessed 20th January 2018 at 18.00 hrs.
4
Ratanlal and Dhirajlal. The Indian Penal Code, 35th Edition- 2017: 673-675
5
Paras Diwan. Modern Hindu Law, 22nd Edition-2013, Allahabad Law Agency, Allahabad: 138-140
6
Married Women’s Property Act, 1882 (45 & 46 Vict., c. 30).
7
Ann Summer Holmes, The Double Standard in English Divorce Laws, 1857-1923, 20(2) Law and Social Enquiry 601, 605 (1995).
The author suggests another reason for the partiality, that adultery of the wife would cause confusion in determination of the heirs to
the property and thus deserves stricter punishment.
8
Macaulay’s Draft Penal Code, Note Q (1837); as cited in the 42nd Report of the Law Commission of India, Indian Penal Code, 324
(1971). The Law Commissioners idea of exempting the wife under Section 497 IPC to Lord Macaulay, who stressed on the deplorable
condition of women in India. See, Law Commission of India, 42nd Report: Indian Penal Code, 325 (1971).

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 3

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

explanations behind criminalizing Adultery in any case. Thus, one must swing to the experience of different
committees and the courts in their managing Section 497 for help with deciding the plan behind criminalization.
In one of its activities, the Law Commission of India attempted an exhaustive correction of the IPC,
furnishing in the 42nd report9 The Report gave data about the authoritative history of Section 497, and offered
an examination with the position in France, England, and the United States of America. The Commission
offered itself discussion similar like the ones we are centering upon here: questioning both the criminalization
of Adultery as such and its specific indication in Section 497. In the wake of throwing grave questions over
the implied advantage of criminal activities for two-faced direct, the Commission noted that “though some
of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not
yet come for making such a radical change in the existing position”.10 The Commission suggested
following changes: expulsion of the exception from obligation for ladies, and diminishment of sentence from
five to two years. The Report does not demonstrate what drove the Commission to think abrogating Adultery
as radical, nor does it
outfit any supports.

The Amendment never happened, yet the contemplation was followed up in the following endeavour at re-
examining the IPC which finished in the 156th Report of the Commission 11. Here, the perceptions made in the
42nd Report were repeated alongside cited passages from the choice of the Supreme Court in Sowmithri
Vishnu
v. Union of India,12 where the Court observed “any changes to Section 497 must originate from the Legislature
and not the Court. In a proposal which it believed reflected the “‘transformation’ which the society has
undergone”,13 the Commission suggested eliminating the immunity from liability for women while keeping the
five-year imprisonment.

These changes justified procedural changes to expel the ban against women from starting indictments. Be that
as it may, such proposition never showed up in either the 41st Report (which prompted the 1973 Cr.P.C.) 14 or
the 154th Report15 which explored the Cr.P.C. 1973, rendering the responsibility regarding any change rather
questionable. Consequently, there have been different Committees constituted to consider the issues of criminal
equity and law changes. In 2003, the Committee on Reforms of the Criminal Justice System [Malimath
Committee] distributed its Report.16

It sustained support for the Law Commission suggestions to not annul the offence, but to connect liability for
the sexes, it observed: “object of the Section is to preserve the sanctity of marriage. Society abhors marital
Adultery. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual
intercourse with a man (other than her husband)”.17 14 years have gone since this Report, however there has
been no action in the Legislature to consolidate its recommendations. Therefore, we find that India takes after
the predominant idea of considering Adultery laws important to shield the holiness of marriage. Society
hates conjugal Adultery in a

9
Law Commission of India, 42nd Report: Indian Penal Code, 1860 (1971)
10
Id
11
Law Commission of India, 156th Report: Indian Penal Code, 1860 (1997).
12
Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137
13
Law Commission of India, 154th Report: Code of Criminal Procedure, 1973 (1996).
14
Law Commission of India, 41st Report: Code of Criminal Procedure, 1898 (1969).
15
Law Commission of India, 154th Report: Code of Criminal Procedure, 1973 (1996)

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 4

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

16
Id
17
Law Commission of India, 154th Report: Code of Criminal Procedure, 1973 (1996)

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 5

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

roundabout way infers society endorses of monogamy and conjugal constancy, in this manner supporting the
work of state authorize against the individuals who undermine these ethics. The quirk of the Indian offense is
the exclusion for women from obligation, which has been reliably tried to be expelled. The exception in favour
of women combined with procedural restrictions on who can initiate proceedings, has led to the view that only
outcasts to the marriage must be dissuaded through the criminal law.

REASONS BEHIND ADULTERY

Research exposes that there are 5 main reasons for adultery. These are:
Loneliness-This can be the point at which one accomplice invests a ton of their energy far from home either
focusing on their expert profession or basically liking to invest additional time with their companions or
seeking after their own particular advantages.

Communication barriers- Poor correspondence perpetually causes issues in a marriage or relationship. Issues
and contentions are left uncertain without much of a stretch compound discussion when accomplices are either
unwilling or unfit to examine these with each other.
Lack of love and affection-Love and friendship are fundamental for fixings in any marriage or relationship.
Absence of friendship or love is a standout amongst the most well-known explanations behind Adultery.
Individuals will look to others when these requirements are not being met by their mate or accomplice.

A poor sexual relationship-Weariness and Dullness in the room will frequently prompt one or even the two
accomplices going off and looking for energy and assortment somewhere else.

Lack of intimacy-Relational unions require closeness to subsist. Without this in your marriage you may well
feel disliked, rejected and undesirable.
A standout amongst the most characterizing qualities of current relational unions, is that life partner is relied
upon to be consolidated as closest companion who share everything with each other and spend each minute
together. However, this development of marriage as a definitive closest companion/life partner combo can put
genuine weight on the two gatherings to make a coexistence that is all immaculate. This makes a desire that in
the event that one is not totally satisfied with their life partner, at that point that is an issue that could be cured
by another person. On the other side, this strain to keep up flawless sometimes drives us to change into
somebody that exclusive exists with regards to our relationship. Maybe obviously, many individuals choose
alternative path with an outsider rather than struggling to keep their present relation alive. Obviously, perhaps
individuals consider Adultery to be an alternative on the grounds that now our associations are more
expendable than they've at any point been. One individual forever is not really the desire any longer.
Technological Innovation makes it relatively convenient to frame an association with any number of individuals
in any part of world. This make it less demanding to underestimate our current associations when sex and love
is displayed as an item that can be found anywhere, our desire for moment of delight could push us to seek a
flash of joy that might possibly exist.

ADULTERY AS PER CRIMINAL LAW

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 6

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

A man who has sex intercourse with a women’s assent who is and whom he knows or has reason to accept to be
the spouse of another man, does not add up to rape. He is liable of Adultery under IPC 18given it is without the
assent or conspiracy of her significant other. This clearly implies if a man has sex intercourse with the assent of
the women alongside the assent of her better half, at that point he neither carries out the wrongdoing of sexual
assault nor is blameworthy of Adultery.
Section 497 rebuffs the offense of Adultery submitted with a wedded woman without the assent or conspiracy
of her better half. The primary component of the offense of Adultery is that the male guilty party alone has been
made punishable. The language of Section 497 does not constitute an offense of Adultery on the chance that
one has sexual intercourse with an unmarried woman. Indeed, even on account of wedded women the
respondent is not at risk if the spouse of the women agrees to it.
In an indictment for the offense of Adultery, the factum and additionally the legitimateness and the legitimacy
of the marriage between the complainant and the women included must be entirely demonstrated beyond
reasonable doubt. The insignificant articulation of the complainant or that of the women worried that they are
hitched to each other is not adequate to maintain a prosecution under Section 497 and despite such
confirmation, marriage must be entirely demonstrated to have occurred by law. Under Section 497, spouse is
not culpable as abettor as the Indian culture is of an alternate kind which may well lead a man to delay before
he decides to snub the Adultery of wife. The consideration of the law obviously is that spouse, who is
associated with an illegal association with another man, is a casualty and not the creator of the wrongdoing. The
offense of Adultery is considered as an offense against the sacredness of the marital home.
Section 497 of the Indian Penal Code and Section 198 (1) read with Section 198 (2) of Criminal Procedure
Code19, go as an inseparable unit and constitute an authoritative parcel to manage the offense perpetrated by an
outcast to the wedding unit who attacks the peace and protection of the marital unit and toxicates the connection
between the two accomplices constituting the wedding unit. The law does not conceive the discipline of any of
the mates at the occasion of each other. A spouse is not allowed to accuse his unfaithful wife on the grounds
that the wife is not dealt with as a guilty party in the eye of law. In the Indian setting, such a circumstance is
profoundly condemnable if a hitched woman sets up physical association with another man. It is similarly
despicable if a man enables his significant other to wind up bed with another man. There are various cases in
which a wedded woman, when found in compromising position with another man, there was detailed police
report against man for conferring sexual assault. On trial in Court of Law, it was held that the women were a
consenting member while the spouse had not assented. Along these lines the offense of assault couldn't be
demonstrated and despite the way that the spouse had not assented, the man couldn't be held liable under
Section 497 IPC. The reason is specialized. The offense under Section 497 IPC is not cognizable and no Court
is engaged to take cognizance of the offense under this section unless the women’s significant other makes a
grievance as indicated by Section 198 Cr PC, 1973.

The cognizance of offense under Section 497 IPC can be taken if the concerned women’s better half had
grievances. Since such a woman denied the report of assault, the person couldn't be held liable under Section
497 IPC and since she was observed to be a consenting party the person was absolved for the charges under
Section 376 IPC. Accordingly, disregarding the wrongdoing of Adultery, the person was left unpunished.20 In
Naval v.

18
Section 497, Indian Penal Code (1860)
19
Section 198(1), Code of Criminal Procedure (1973)
20
Surendra Tiwari, Special Judge, Jagdalpur (C.G.). ‘Don’t we need filling the loopholes of Law to punish Rapist and Adulterer’, CrLJ-
2005: 334-337-338. / Journal 22 XI.

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 7

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

State of M. P 21“ the accused was charged and convicted by the trial court for committing rape under Section
376 IPC but in appeal the High Court was satisfied and held that accused had sexual intercourse with the
consent of the woman but without her husband’s consent or connivance. Hence, conviction under Section 376
IPC was quashed and accused was held guilty of the offence of Adultery and was convicted under Section 497
IPC.”

ADULTERY AS MATRIMONIAL / CIVIL OFFENCE

 Hindu Law
Prior to the coming into force of the Marriage Laws (Amendment) Act, 1976 living in Adultery was a ground of
separation. Then again, an applicant could get a pronouncement of legal partition, on the off chance that he
could demonstrate that his mate, after the solemnization of the marriage, had sex intercourse with any
individual other than his mate. Presently Adultery s has been made ground for judicial separation and divorce.
The new clause states: “has after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse”.22

The criminal body of evidence concerning Adultery cannot be brought against the women yet just against the
man engaged with Adultery. The spouse is not blameworthy of offense, not even as abettor. While in
matrimonial law when an appeal is petitioned for legal dissolution of marriage or separation, on the ground of
Adultery, however in many frameworks, wrongdoer, if known, is a fundamental gathering to procedures and
must be made a co-respondent. The High Court under the Hindu Marriage Act, 1955, requires that the Adulterer
ought to be made a correspondent.

In an appeal for judicial separation or dissolution of marriage, it is not essential, nor is it material, to
demonstrate that the respondent had knowledge or reason to believe that the respondent was the spouse or
husband of the candidate. In the event that the respondent engaged in sexual relations with the co-respondent
with the full knowledge that he or she was not his or her better half or spouse, at that point it is sufficient. It
might be underlined that the marital court is not abundantly worried about the information of the respondent
that co-respondent was not his or his mate. In Subbarma v. Saraswathi23 it was held that “if the co-respondent
had intercourse with a married woman personating to be her husband and the respondent taking him to be her
husband had intercourse with him, she is not guilty of the matrimonial offence of Adultery, though the co-
respondent may be guilty of criminal offence of Adultery.”

The sexual intercourse examined by the proviso is an intercourse with a third individual, i.e. non-life partner. In
this way, intercourse with the spouses during pre-Act polygamous marriage won't add up to additional conjugal
intercourse. Yet, in the event that the second marriage is void, at that point intercourse with the second spouse
will add up to extramarital intercourse inside the significance of the provision. The burden of proof is on the
petitioner.24 At one point of time it was required to prove it beyond all reasonable doubts”, but today it can be
proved by preponderance of probabilities.25 “It need not reach certainty, but must carry a high degree or

21
Naval v. State of M.P., 2000 (1) MPWN 8.
22
Section 13(l)(i) of the Hindu Marriage Act (1955)
23
Subbarma v. Saraswathi, (1966) 2 M.L.J. 263
24
Lachman v. Meena, 1964 S.C. 40.
25
Bipin v. Prabha, 1975 S.C. 176.

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 8

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

probability. It is also an established rule that it is generally difficult to adduce direct evidence of Adultery and
usually the circumstantial evidence is sufficient.”26 Be that as it may, if direct evidence is reliable then it may be
proved by direct. At the point when a man says that he saw the women and other man dozing together in the
night, it is adequate verification of Adultery.27

It is exceptionally far-fetched that any individual can be observer to such acts, which are for the most part
performed, in secrecy. The way that a wedded woman has been absenting herself from her home for four to six
days at an extend and has been seen more than once with an aggregate outsider, there being no clarification for
this, prompts a compelling conclusion that she had conferred Adultery. 28

 Muslim Law
As any statute does not highlight any relevant provision of adultery as a ground for claiming divorce under
Muslim law, Section 2(viii)(b) of the Muslim Marriages Act says that if a man associates with women of evil
repute or leads an infamous life, it amounts to cruelty to the wife and he can sue her. This can be equated with
adultery.

The concept of Lian is prevalent in Islamic laws. Though it is not very popular in India, it brings forward an
interesting concept. Where a man accuses his wife of adultery, the wife can bring a claim for dissolution of
marriage against the husband. Of course, if the husband retracts such statements, the wife’s claim no longer
exists.29 This, however, has gained recognition in India under Section 2 of the Shariat Act, 1937, the Allahabad
High court 30 had gone further to clarify that only wives not guilty of adultery can use this concept, and not
wives who are in fact guilty. In another ruling, the Allahabad High Court 31 held that where a man himself
committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the
grounds of cruelty. Judicial separation is not recognized by the principles of Islam.

 Christian Law
Section 10(1)(i) of The Divorce Act of 1869 (as amended in 2001) reads, “Any marriage solemnized, whether
before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented
to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization
of the marriage, the respondent has committed adultery.” This has however evolved over a period of time.
Earlier, only a Christian man could file for divorce on the grounds of adultery. For a Christian woman to file for
adultery, it either had to be incestuous or coupled with other grounds like desertion or cruelty.
This change was brought about by the landmark case of Ammim v Union of India32. A special bench of the
Kerala High Court held that the ground of adultery was way more favourable to men than to the wife as she not
only has to prove adultery but also has to prove another ground. Such discrimination is purely on the basis of
sex

26
Sanjukta v. Laxmi, 1991 Ori. 39
27
Bipin v. Prabha, 1975 S.C. 176.
28
Tripat v. Bimla, 1959 J. & K. 72.
29
Flavia Agnes, Family Laws and Constitutional Claims, Page 57, Volume 1, oxford publishers
30
Zafar Hussain v Ummat Ur Rahman (1919) 41 all 278
31
Abbas v Rabia AIR 1952 All 145
32
Ammim v Union of India AIR 1995 Ker 252

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 9

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

and hence, violates Article 15 of the Constitution. The court held that since the words “coupled with” are several
and liable, it should be struck down as it is ultravires the constitution.33

Section 11 of the same act requires the adulterer to be pleaded as co-respondent. This is a mandatory statutory
requirement with only three exceptions:34
1. The respondent is leading the life of a prostitute and the petitioner does not know with whom the adultery has
been committed.
2. The petitioner is not aware of the name of the adulterer though efforts have been
made. 3.The adulterer is dead.
In Wenmard Marak v Poiby Momin35 the Gauhati High Court refused to confirm the decree of divorce on
grounds of adultery being accepted by the respondent upon failure to comply with this requirement.
Section 22 of the above-mentioned act allows for judicial separation on the exclusive ground of adultery, cruelty
or desertion. Adultery of the husband in this Act includes adultery with any woman, married or unmarried.36
 Parsi Law
Section 32(d) of the Parsi Marriage and Divorce Act, 1936 37 allows any married person to sue for divorce if the
spouse has committed adultery, fornication, bigamy, rape or any unnatural offence. The section also places a
limitation period of two years from the point where the petitioner came to know of such an adulterous
relationship. As the section itself words it, when a married person has sexual intercourse with either a married
person or an unmarried person, this section is attracted. Section 34(d) of the same Act grants the right of a
married person to sue his/her spouse on the grounds of adultery, fornication, bigamy, rape or any other
unnatural offence. This section too, has the limitation clause of two years.

In the case of Meherbai v Hormasji38, it was held that though the plaintiff’s act could not be construed to be
adulterous with any particular individual, but the facts and circumstances can lead to a strong presumption that
the plaintiff was generally up to mischief of adultery and hence, the charge of adultery was proved against the
petitioner.

COURTS AND SECTION 497

Section 497 IPC together with Section 198 Cr.P.C criminalizes Adultery apparently to implement a specific
good position and protect the organization of marriage by hindering outsiders from destabilizing it through
wanton sexual accomplishments. This is the thing that the Legislature and Committees tell us, however it must
be investigated that how Courts manage such issue.

In Yusuf Abdul Aziz v. State of Bombay 39, Mr. Yusuf Abdul Aziz challenged the exemption from liability for
women under Section 497 IPC, stating the same was contrary to Article 14 of the Indian Constitution. Bombay
High Court stalled this contention and subsequently he moved the Supreme Court, and five judges gave the

33
Id
34
The Divorce Act of 1869 (as amended in 2001)
35
Wenmard Marak v Poiby Momin AIR1988 Gau 50
36
The Divorce Act of 1869 (as amended in 2001)
37
Parsi Marriage and Divorce Act, 1936
38
Meherbai v Hormasji (1908) 10 Bom Lr 1019
39
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 10

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

decision. “The Court unanimously held that the exemption for women was protective discrimination
safeguarded under Article 15(3) of the Constitution. Importantly, Mr. Aziz did not impugn the validity of the
offence itself.”40

In Sowmithri Vishnu vs. Union of India and another 41, the Petitioner lengthened the scope of arguments to
question the validity of Section 497 as being conflicting to Articles 14 and 21 of the Indian Constitution,
furthering ideas of women as being mere chattel. The Court remained sceptical, and saw these arguments as
tumbling in the realm of policy rather than law.

Yet, this did not prevent the bench from drawing in with the contentions, furnishing with an extraordinary
understanding into the matters of marriage and sexuality. Rejecting the dispute exempting women from the
scope of Section 497 IPC the Court observed that “it is commonly accepted that it is the man who is the seducer
and not the woman. For the judges, exempting women conveyed the message that the wife, who is involved in
an illicit relationship with another man, is a victim and not the author of the crime”. 42 The unusual structure
behind the offence was understandable, because it was an “offence against the sanctity of the matrimonial
home, an act which is committed by a man, as it generally is therefore, those men who defile that sanctity are
brought within the net of the law”.43 In lieu with this idea, the Court quashed the charge of Adultery since the
husband had obtained a divorce from his adulterous wife.

In V. Revathi v. Union of India44, the Petitioner extended the scope of her contentions to attack the legitimacy
of confinements set under Section 198(2) Cr.P.C., which permit just the spouse to initiate proceedings for
Adultery committed by his significant other and her lover. Rejecting the Petition, the Court considered Section
497 IPC together with Section 198(2) Cr.P.C. as a “legislative packet” designed to “deal with the offence
committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit
and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the
two spouses to hit each other with the weapon of criminal law.”45 Ultimately, the Court concluded that “even
handed justice” was meted out to both parties.

The Supreme Court in this way to a great extent bolsters the rationale offered by Legislature and Committees,
advancing the view that the offense looks to defend the establishment of marriage from outsiders. The Court
has likewise clarified away the clear segregation rehearsed by the arrangements, holding that the specific
instrument depends on the twin start of (i) women being casualties and not aggressors, and (ii) keeping the
couples away from turning to the criminal law for settling the question.

Making assent of the spouse material for initiation of proceedings leads to a contention that the offense is
simply an authorization of husband’s rights over the wife, in opposition to the perspectives of the Supreme
Court. The Bombay High Court has on various events explicitly affirmed the view that Section 497 just assists
the spouse's private rights. In Re Shankar Tulshiram Navle, 46 the Court held that “Adultery is an infringement
of the rights
40
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
41
Sowmithri Vishnu vs. Union of India and another (AIR 1985 SC 1618)
42
Sowmithri Vishnu, at para 7.
43
Sowmithri Vishnu, at para 13
44
V. Revathi v. Union of India, (1988) 2 SCC 72
45
Id

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 11

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882
46
Re Shankar Tulshiram Navle, (1928) 30 Bom LR 1435

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 12

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

of the husband towards his wife, and when the offender has once been convicted or acquitted of the offence of
Adultery, which consisted of one sexual intercourse, he cannot with impunity commit another offence of
Adultery under Section 497.”

More significantly, in Yusuf Abdul Aziz v. State of Bombay47, Chief Justice Chagla observed:
“Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their
husbands. The very fact that this offence is only cognizable with the consent of the husband emphasizes that
point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are
past, we hope, when women were looked upon as property by their husbands.”48

While such direct comments are not inescapable, they essentially harm the suspicions which the Supreme Court
continued to reveal in the case of Sowmithri Vishnu. Those suppositions of Section 497 promoting group
interests are additionally gouged in the event when we look at how the courts put extraordinary significance
upon shape over substance with Adultery cases. Convictions have been suppressed over the procedural
deformity not having been recorded by the distressed spouse as required by Section 198(2) Cr.P.C.49 although
such an irregularity does not vitiate trial under the Code.50

In spite of the fact that Adultery has been an offense since 1860, the Law Commission in its 42nd Report
mentioned how prosecutions have been rare.51 The quirk of the authoritative bundle for Adultery has
demonstrated a device for badgering on account of irritated spouses. While the spouse records for separation
against the wife, Section 497 fills in as a weapon against the lover. Courts are cognizant of this fact and on
several occasions, they have quashed prosecutions reporting mala fides borne out from the delay, 52 or from the
lack of material evidence. Thus, unreasonably the provisions only aid to further the vested interests of the
husband.53

CRITICISMS OF THE LAW AND THE JUDGMENTS

 Violates Article 14 of the Indian Constitution

The Section 497 of the Indian Penal Code which defines Adultery is one-sided for the most part in light of the
fact that it doesn't enable the spouse to prosecute the women with whom her significant other has adulterer
relations however it enables the husband to indict the man who has committed Adultery with his better half.
The law has viewed women as a casualty not as creator of the wrongdoing. This very idea of victimhood lies on
“the psychological belief of considering oneself helpless, lacking power to overcome the situation and in a need
of some external agency to take them out of the situation.

The Honourable Supreme Court is of the view that the society punishes the “the 'outsider' who breaks into the
matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit
relationship with one of the spouse’s subject to the rider that the erring 'man ‘alone can be punished and not the
47
Yusuf Abdul Aziz v. State of Bombay, 1951 (53) Bom LR 736.
48
Id
49
Suresh Chandra Vadilal Shah v. Shantilal Shankarlal, 1968 Cri LJ 117
50
Sections 460- 461, Cr.P.C., 1973.
51
Law Commission of India, 41st Report: Code of Criminal Procedure, 1898 (1969)
52
Krishna Chandra Patra v. Tanu Patra, II (1992) DMC 20.
53
Sandwip Roy v. Sudarshan Chakraborty, 2007 (98) DRJ 109.

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 13

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law.”54 In any
case, the Court misses out the point that the spouse has no help in Criminal law however a similar arrangement
is given to the husband, and for a situation where the women is unmarried the women cannot be prosecuted.
This can be viewed as an infringement of the principles of natural justice which is major to our Constitution.55
Article 14 read with 16(1) deals with equality or equal treatment reliable with the standards of natural justice.

 Section 497 does not come under the purview of Article 15 (3)
The designers of the Constitution trusted that amidst the twentieth century nobody would separate on the
ground of sex. Nonetheless, it is plainly observed that the law-making body is unmistakably making
segregation on the grounds of sex on the guise of giving protective discrimination to the women. The
uncommon treatment given to the ladies under clause 3 of Article 15 ought to be confined to such cases which
must be identified with a few highlights or handicap which are peculiar to the point that it separates women
from men as a class. 56

The equity provisions in the Indian Constitution were surrounded on the premise of the American Constitution,
so to disregard the foundation resembles not just abusing the fundamental standards of similar established law
yet damaging the essential standards of understanding of the constitution. The American Supreme Court has
expressed that where both the genders are on rise to balance and segregations to a specific sex as a class would
resemble denying the equivalent assurance proviso as cherished in the constitution- “the very kind of arbitrary
legislative choice [is] forbidden by the Constitution.”57 “Even any kind favour may it be positive or negative to
the women for “administration convenience” would be repealed or struck down as discriminatory and
unconstitutional.”58

In the event that we take a note of what was the goal of our Constitution designer behind keeping such
provision as Article 15(3), the situation turns out to be clear. Prof. K.T. Shah believed that:

“… this discrimination is in favour of particular classes of our society which, owing to an unfortunate
legacy of the past, suffer from disabilities or handicaps. Those, I think may require special treatment;
and if they do require it, they should be permitted special facilities for some time so that real equality of
citizens may be established. […] It is only intended to safeguard, protect or lead to their betterment in
general; so that long-range interests of the country may not suffer.”59

The goal of the Constitution Drafters is evident that they incorporated this statement to defend, ensure or
prompt the improvement of women and they have not expected to keep it to give a permit for abetting or
conferring an offense.60 The Court said that a contention like making both man and women subject to Adultery
is not passable as this is an arrangement of law 61

54
AIR 1985 SC at 1618.
55
Subhash C. Kashyap, Constitutional Law of India at 481 (Universal Law 2008).
56
Durga Das Basu, Commentary on the Constitution of India at 1796 (Wadhwa 8th ed 2007)
57
Reed v Reed, (1971) 404 US 76, 77
58
Frontiero v Richardson, (1973) 411 US 677, 690.
59
Constituent Assembly Debates. Vol VII at 655
60
Yusuf Abdul Aziz v. State of Bombay, 1951 (53) Bom LR 736.
61
Sowmithri Vishnu vs. Union of India and another (AIR 1985 SC 1618)

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 14

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

The law at the current circumstance, considers just men as wrongdoer, as a class; the women are not physically
or socially such arranged that they are unequipped for submitting the offense of Adultery. Further, both the
genders are on an equivalent balance in conferring the offense of Adultery, this sort of enactment are biased and
self-assertively securing the women. The Section 497 of the Indian Penal Code is only violative of the
uniformity and equality condition under Indian Constitution.

EXCLUSION OF WOMEN
It might appear somewhat strange however its actual that women in India cannot be prosecuted for an offense
of Adultery. Section 497 of the Indian Penal Code perceives a “consensual sexual intercourse between a man,
married or unmarried, and a married woman without the consent or connivance of her husband as an offence of
Adultery”62. Which likewise implies that the offense of Adultery is conferred just by a man who has sex with
the spouse of another man, without his assent or conspiracy, and that the wife is not culpable for being an
adulteress, or even as an abettor of the offense for which the man can be sent to imprison for a long time.
It is truly fascinating to take note that the offense of Adultery did not discovered its place in the principal draft
of the Indian Penal Code arranged under the Chairmanship of Thomas Babington Macaulay in the year 1837.
His reasons were: -
“We consider whether it would be advisable to provide a punishment for Adultery, and in order to
enable ourselves to come to a right conclusion on this subject we collect facts and opinions from all the
three Presidencies. The opinions differ widely. But as to the facts there is a remarkable agreement.”63
The accompanying positions we consider as completely settled: in the first place, that the current law for
Adultery are out and out inefficacious with the end goal of counteracting harmed spouses of the higher classes
from taking the law into their hands; besides that hardly any of the higher classes ever has plan of action to the
Courts of law for a situation of Adultery for charge against his significant other, or her chivalrous; thirdly that
the husbands who have response in the event of Adultery to the Courts of law are for the most part poor men
whose wives have fled, that these husbands sometimes have any sensitive emotions about the interest, however
they think themselves harmed by the desertion, that they consider wives as valuable individuals from their little
family units, that they for the most part grumble not of the injury given to their affections, not of the stain of
their respect, but rather of the departure of a modest whom they cannot undoubtedly supplant, and that for the
most part their essential protest is that the women might be sent back. Where the complainant does not make a
request to have his significant other once more, he for the most part requests to be repaid for the costs of his
marriage.
However, the Law Commissioners in its 2 nd Report on the Draft Penal Code in the year 1847, took a divergent
view and observed:

“While we think that the offence of Adultery ought not to be omitted from the Code, we would limit its
cognizance to Adultery committed with a married woman, and considering that there is much weight in
the last remark in Note ‘Q’, regarding the condition of the woman in this country, in deference to it, we
would render the male offender alone liable to punishment. We would, however, put the parties accused
of Adultery on trial together, and empower the Court in the event of their conviction to pronounce a
decree

62
Section 497, Indian Penal Code (1860)
63
Macaulay’s Draft Penal Code, Note Q (1837)
IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 15
www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

of divorce against the guilty woman, if the husband uses for it, at the same time that her paramour is
sentenced to punishment by imprisonment or fine.”64

This proposal by the Law Commissioners was not acknowledged, and in the year 1860, Section 497 came into
force. The Law Commission of India, under the Chairmanship of Mr. K.V.K. Sundaram, in its 42nd Report in
1971, basically contemplated more than two issues-
1. Should Adultery be punishable?
2. Should the offence be limited to men only?
After much discussions, the Law Commission came to a supposition that the object of such prosecution is seldom
to send the offender to jail, that is, if the court will regard the offence as serious enough to merit a sentence if
imprisonment. It is more often with a view to come to a settlement with the offender on the mercenary level. 65
“Though some of us were personally inclined to recommend repeal of the section, we think on the whole
that the time has not come for making such a radical change in the existing position. We however, think
that the reason which weighted with the Law Commissioners in the last century in exempting the wife
from punishment are by and large no longer valid, and there is hardly any justification for not treating the
guilty pair alike.”66
With the above perceptions, the Law Commission of India, suggested that the exclusion of the women under
Section 497 ought to be expelled, and that the most extreme punishment of five years endorsed is unbelievable
and not called for in any conditions and subsequently ought to be diminished to two years, and that with these
changes, the offense of Adultery ought to stay in the Penal Code.
A Committee was formed on Reforms of Criminal Justice System which was headed by Justice V.S. Malimath
in the year 2003 proposed that the language of Section 497 of Indian Penal Code ought to be changed as to give
impact that “whosoever has sexual intercourse with the spouse of any other person is guilty of Adultery...”.67
The Committee highlighted that the exceptional goal of the section is to safeguard the hallowed relationship of
marriage, Adultery is hated by the general public so there is no avocation that the spouse who has sexual
association with a man is not dealt with similarly. This proposal if acknowledged would influence a man and a
woman to be dealt with equivalent as an adultator. Tragically, the purpose to alter Section 497 to mirror an
approach in view of fairness has not gained any ground. One can dream that this issue is taken up by the Law
Commission once more, and furthermore the Parliament may strengthen it.

CONCLUSION AND SUGGESTIONS

This article scrutinized the criminalization of Adultery theoretically and practically. Criminalizing conduct,
exclusively on this premise, was again rather dishonourable. A faulty hypothetical stage was discovered
supplemented by statutory arrangements which extremely rebuffed adulterous behaviour of a specific kind. In
any case, these seem apparently in opposition to sexual orientation balance, and regardless of endorsement by
the Supreme Court their protected legitimacy stays suspect. All the more essentially, information uncovered
how the offense of Adultery has been very insufficient in accomplishing any social control as far as protecting
the holiness of marriage. The Law Commission in its 42nd Report looked to evacuate the exception for ladies
and make the
64
Law Commission of India, 2nd Report: Draft Penal Code (1847)
65
Law Commission of India, 42nd Report: Indian Penal Code, 1860 (1971)
66
ibid
67
Committee on Reforms of Criminal Justice System (2003)

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 16

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

law sexually unbiased. The Malimath Committee Report concurred as it neglected to see the reason in holding
the advantages to ladies. These progressions would free the Supreme Court choices of their moorings however,
as companions would never again be "impaired from hitting each other with the weapon of criminal law.
Maybe from that point forward, Adultery would at long last be rethought as an offense. Such private,
consensual activities are not inside the area of criminal law and criminalizing such lead stays baseless.

The article concludes that there has been an enormous change in the Indian culture; women are never again
thought to be the asset of her better half. The law as stands today infringes the Indian Constitution that
incorporates equality for each citizen of India and would not discriminate on the grounds of sex. The special
provision under Article 15 (3) for women cannot be stretched out to make self-assertive watchfulness for such
discrimination by the legislature, as on account of Adultery. The Section 497 of the IPC which manages
Adultery should be pronounced null and void. Proposals from the different Law Reform Committees
additionally give an insight that basically this area ought to be changed, or ought to be revoked. The law makers
ought to quickly rescind the present law on Adultery in view of the recommendations from the different boards
and committees to give just measure in terms of equality to the nationals of India. Further, in the current
circumstance the marriage is thought to be a common contract between two consenting grown-ups; the common
law gives a considerably more extensive meaning of Adultery, and is adequate and powerful. Contemplating
that number of western nations has decriminalized Adultery or has made it a common wrong, there is a need to
revise Adultery laws in India also.

REFERENCES

1. India Penal Code 1860

2. Code of Criminal Procedure 1973

3. Hindu Marriage Act 1955

4. Divorce Act of 1869

5. Dissolution of Muslim Marriages Act 1939

6. Parsi Marriage and Divorce Act 1936

7. Law Commission of India, 41st Report 1969

8. Law Commission of India, 42nd Report 1971

9. Law Commission of India, 154th Report 1996

10. Law Commission of India, 156th Report 1997

IJCRT17051 International Journal of Creative Research Thoughts (IJCRT) 17