Updated: Apr 22
On 28th September, 2018 five - judge bench clearly declared that section 497 of IPC is Unconstitutional in Joseph Shine v. Union of India. By this judgment the Supreme Court of India over ruled its earlier judgments. Previously Supreme Court in many cases dealt with the legality of criminal act adultery it held that decriminalizing the offence of adultery would erode the sanctity of marriage and the fabric of society at large.
Section 497 and SC Judgement
By this significant word the Supreme Court of India declared section 497 of IPC as unconstitutional because this section violates Art.14 and 21 of the Indian Constitution.
In fact, this adultery law has created absolute, irrational arbitrary right to husband on his wife. More over section 497 of IPC is one of the classic example for ‘gender bias’ and ‘gender in equality’ prevailed in Indian society.
Hence, 150 years old penal law on adultery was struck down by the apex court of India.
Moreover, by this judgment SC also declared section 198 of CrPC as unconstitutional. Section 198 provided the procedure for filing a complaint regarding the offence of adultery.
It is known fact that when the substantive law or provision becomes invalid there is no sanity to procedural law also. If one has a close look in to the judgment it is clear that the Supreme Court has adopted largely the jurisprudence of England. Here the notable point is that not only in England but also in many counties at international level the act of adultery either never considered as an offence or abolished adultery as an offence latter.
The apex court of India has clearly laid the following principles.
They are as follows : -
A husband is not the master and equality is the governing parameter
The binding nature of precedent should not be allowed to retain its status or allowed to be diluted
There is need to adopt progressive Jurisprudential Parameter’s for determining the women’s rights: a. The women cannot be considered as a property of men in the modern progressive jurisprudential parameters and expansive constitutional vision. b. In the relationship between a husband and wife, it is improbable to allow a criminal offence to enter and make a third party culpable.
Section 497 of Indian Penal Code is a reflection of the Social/Patriarchal Dominance.
Section 497 of Indian Penal Code is absolutely and manifestly arbitrary.
Section 497 of Indian Penal Code violates Article 21 of the Constitution.
Patriarchal monarchy over women is unacceptable.
Adultery can be a ground for any kind of civil wrong including dissolution of marriage Adultery is a discriminatory command.
Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage and Along with Section 497 of IPC Section 198 of CrPC is also declared Unconstitutional.
Gender Discrimination: Section 497 of the IPC was criticized for being gender-biased, as it only penalized men for engaging in adultery and treated women as their husband's property. The law provided that a man could be prosecuted for adultery if he had sexual intercourse with a married woman without the consent of her husband. The woman, on the other hand, could not be prosecuted, even if she consented.
Marital Autonomy: The law was seen as an infringement on the autonomy and privacy of married couples. Critics argued that the state should not have the power to regulate consensual sexual relationships between adults, as it goes against the fundamental rights of privacy and dignity enshrined in the Indian Constitution.
Ineffectiveness: The law was also criticized for being ineffective in curbing adultery, as it was rarely enforced and did little to address the social issues that lead to extramarital affairs.
Progressive Step: The Joseph Shine Judgement was hailed as a progressive step by many, as it recognized the rights of women and the need for gender-neutral laws. It also aligned India's legal system with international human rights standards and was seen as a victory for the right to privacy and individual autonomy.
Protection of the Institution of Marriage: Some critics argued that decriminalizing adultery would weaken the institution of marriage and promote immoral behavior. They believed that the law served as a deterrent and that removing it would encourage extramarital affairs and undermine the sanctity of marriage.
Need for Comprehensive Reforms: While the judgement was widely celebrated, some argued that it was only a small step in addressing the larger issue of gender inequality in India. They emphasized the need for comprehensive legal and social reforms to ensure gender equality and justice for all.
A simple reading to bare provision of section 497 of IPC it is clear that this section punishes the male offender for committing adultery with a married woman without the consent or connivance of her husband.
The core principle of this offence is that the male offender alone has been made liable for committing adultery, means having sexual intercourse. This offence is committed by a third party (male person) against the husband in respect of his wife.
Here, two things are important to understand. Firstly, if an act of sexual intercourse takes place between a married man and married woman whose husband consents to it or with an unmarried woman or with a widow this act will not be considered as adultery and it will not deemed to have been committed.
Secondly, it is not required for an offence under this section that the male offender should know with whose wife he has physical relation, but he must know that she was a married woman.
So, it is clear that the offence of ‘Adultery’ is an invasion on the right of the husband over his wife. It is an offence against the sanctity of the matrimonial home and an act, which is committed by a man. It is an anti-social and illegal act.
It is also a notable point is that the scope of the offence under the section is limited to adultery committed with a married woman, and the male offender alone has been made liable to be punished with imprisonment, which may extend upto five years, or fine or with both. The consent or the willingness of the woman is no excuse to the crime of adultery.
Adultery is an offence committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow, or even with a married woman whose husband consents to it or with his connivance.
Before Joseph Shine v. Union of India the constitutional courts had an opportunity to deal about constitutionality of section 497 of IPC. But among them three major case supreme court of India widely discussed about this issue they are:
1. Yusuf Abdul Aziz v State of Bombay
2. Sowmthri Vishnu v Union of India
3. V. Revathi v Union of India
In the case of Yusuf Abdul Aziz v State of Bombay, the Supreme Court observed section 497 of IPC is not ultra vires under Article 14, 15 and 21 of the Constitution on the ground that it is only the man, who is held liable for adultery and not the wife with whom adultery is committed. The wife is saved from the purview of the section and is not punished as an abetter.
In the second case, Sowmithri v Union of India, the court observed that the consent of the women in section 497 is of no relevance.
Then comes the third case of V Revathi v/s Union of India, 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 union. It does not arm the two spouses to hit each other with the weapon of criminal law.
Comparison with other Countries
The criminal law of adultery varies from country to country. It is not uniform. It differs according to the religious norms, attitude of the people and many other factors.
1. United States: The law relating to criminal adultery prevailing in different States in the United States reveal that three major formulations of adultery exist under state laws in the United States such as the common law view, the canon law, and the hybrid view.
According to the common law view, adultery takes place only when the women is married and both husband and wife are held liable.
Under the canon law view, adultery is the voluntary sexual intercourse of a married person with a person other than the offender‟s husband or wife and only the married person is held guilty.
According to the hybrid rule, followed in twenty states in the United States, if either spouse has sexual intercourse with a third part, both transgressors are guilty of adultery.
2. United Kingdom: Adultery is not a criminal offence in the United Kingdom.
3. France: a wife is guilty of adultery is punishable for a period ranging from three months to years’ imprisonment. The husband however, may put an end to her sentence by agreeing to take her back. The adulterer is punishable similarly.
4. Germany: if a marriage is dissolved because of adultery, the guilty spouse as well as the guilty partner, is punishable with imprisonment for a term of not less than six months, but prosecution has to be initiated by the aggrieved spouse by means of a petition.
5. Pakistan: adultery is viewed as a heinous crime and both the man and woman are subjected to punishment.
What Next ?
Keeping in view the transition of Indian society and change in socio-legal as well as ethical norms with the advance of time and progressive approach at national as well as international level many scholars, law commission etc proposed for removal of adultery from penal provisions numerous times when criminal law especially IPC provisions put forward for amendment as most of the European Countries abolished this act from their penal laws and Section 497 of IPC glorifies gender bias and this is something that woman find distasteful. But the suggestions did not muster the required support and therefore, had to be dropped. Conclusion: The apex court of India decision regarding decriminalization of adultery has been receiving a variety of talks from Indian society. This decision has a variety of impacts on the institution of marriage. It not only impacts the relation between wife and husband but also has bad affects on the children’s that means the base of the society family system will be effected un imaginably.