ADULTERY

With Respect to Article 14 and Article 15

Abstract
Adultery shows a conflict between social pressure and
individual struggle for happiness. Adulterers have always
suffered from society’s disapproving attitude towards them.
In India, adultery is criminalized under Section 497 IPC

AVINASH DANGWAL
2ND YEAR REGULAR
 CONSTITUTIONAL LAW

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 2

RELIGIOUS PERSPECTIVES AND LEGAL SANCTIONS .................................................. 3

African Culture ....................................................................................................................... 3

Ancient Indian Law ................................................................................................................ 3

Jewish Law ............................................................................................................................. 3

Christian Law ......................................................................................................................... 3

ADULTERY IN INDIAN PENAL CODE ................................................................................ 5

Yusuf Abdul Aziz vs The State of Bombay............................................................................... 6

Smt. Sowmithri Vishnu vs Union of India & Anr ..................................................................... 7

V. Revathi vs Union of India & Ors .......................................................................................... 9

ANALYSIS .............................................................................................................................. 10

Decriminalized Adultery ...................................................................................................... 11

CONCLUSION ........................................................................................................................ 13

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INTRODUCTION

“Whoever looks at a woman to lust after her has committed adultery already with her in his
heart”- Jesus Christ.

Marriage and family are often regarded as the basis of society. Adultery has been a part of the
human existence for as long as there has been marriage. It automatically brings its own conflict
between, the people concerned, sexual desires and a sense of loyalty; it brings intense emotions
into the foreground and has consequences for all concerned.

Adultery is a “voluntary sexual intercourse between a married person and someone other than
the lawful spouse.” The term originates from the Latin word ad-ulterare (a combination of ad,
“at”, and ulter, “above”, “beyond”, “opposite”, meaning “on the other side of the bond of
marriage”). Adultery literally means sex between a married man or woman and someone who
is not their wife or husband. An adulterer is a married man who has sex with a woman who is
not his wife, or a man who has sex with another man’s wife while an adulteress is a female
adulterer.1

In the sixteenth century, the Catechism of the Council of Trent defined adultery as the
defilement of the marriage bed. If a married man has intercourse with an unmarried woman, he
violates the integrity of his marriage bed; and if an unmarried man has intercourse with a
married woman, he defiles the sanctity of the marriage bed of another. Some legal jurisdictions
have defined it as a “crime against marriage.” Although the definition of “adultery” seems to
differ in nearly every legal system, the common theme is sexual relations outside of marriage,
in one form or another.

In Indian Criminal System, Adultery is an offence under Section 497 of the Indian Penal Code,
1860. The aforesaid legislation has time again invoked controversy on the ground that it is
against women or is not gender neutral and gives immense power to the husband. Under this
law, the women cannot prosecute her husband who is involved in adultery, but only the husband
of the women can prosecute the man with whom she was having sexual intercourse. And the
controversial proviso to the section that it will not be considered adultery if the man has
intercourse with someone else’s wife when given consent by her husband. There is no doubt
that the law treats women as man’s chattel.

1
Cambridge Advanced Learner’s Dictionary, Edinburgh Cambridge University Press; 2003.

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RELIGIOUS PERSPECTIVES AND LEGAL SANCTIONS

Adulterers have always suffered from society’s disapproving attitude towards them, the nature
of which varies widely depending on local culture, religion and values. Historically, adultery
was rigorously condemned and punished, usually only as a violation of the husband’s rights.
Among such people the wife was considered as the property of her spouse, and adultery was
therefore identified with theft, theft of an aggravated kind.

African Culture
In some parts of Africa, the seducer was punished with the loss of one or both hands, as one
who has perpetrated a robbery upon the husband. It is not the seducer alone who suffered, dire
penalties were visited upon the offending wife by her wronged spouse. In many instances she
was made to endure a bodily mutilation which will, in the mind of the aggrieved husband,
prevent her from ever being a temptation to other men again. However, the wife was allowed
no cause against the unfaithful husband; and this discrimination found in the practices of
ancient people is moreover set forth in nearly all ancient codes of law.

Ancient Indian Law

In ancient India, the laws of Manu are striking on this point, “though destitute of virtue or
seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly
worshipped as a god by a faithful wife”; on the other, hand, “if a wife, proud of the greatness
of her relatives or (her own) excellence, violates the duty which she owes to her lord, the king
shall cause her to be devoured by dogs in a place frequented by many”.

Jewish Law
In Jewish Law, the penalty for adultery was stoning for both man and woman, but this was
enacted only when two independent witnesses had warned the offenders prior to the crime
being committed. Today, Jewish law forbids a man to continue living with a wife who cheated
on him; he is obliged to give her or get a bill of divorce written by a sofer or scribe. Neither is
the adulteress permitted to the adulterer, who must also give her a bill of divorce. In the Greco-
Roman world there were stringent laws against adultery and applied only to those having sex
with a married woman.

Christian Law
In Christianity, throughout the Old Testament, adultery is forbidden, and punished by death. In
the New Testament, Jesus took a softer stance on adultery, although he preached that it was a

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sin. The Bible regards adultery as a great sin and a great social wrong. In Judaism, adultery
was forbidden, but this did not apply to a married man having relations with an unmarried
woman. Only a married woman engaging in sexual intercourse with another man was counted
as adultery, in which case both the woman and the man were considered guilty. According to
Islam, adultery is a violation of a marital contract and one of the major sins. In Islam, adultery
includes both pre-marital and extramarital sex.

Thus, since ancient times, adultery has been subject to severe sanctions, including the death
penalty, and stoning to death. It has been a ground for divorce under fault-based divorce laws.
In most jurisdictions, adultery is illegal and figures in the penal laws. In the United States, laws
vary from state to state. In Pennsylvania, adultery is technically punishable by 2 years of
imprisonment or 18 months of treatment for insanity, in Michigan adultery carries a potential
life sentence while in Maryland, adultery is punishable by a fine of ten dollars. In Canadian
law, adultery is defined under the Divorce Act. In Pakistan, adultery has been criminalized by
a law called the Hudood Ordinance, which specifies a maximum penalty of death. In India,
adultery is criminalized under S. 497 IPC, while in civil law both husband and wife can seek
divorce on grounds of adultery.

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ADULTERY IN INDIAN PENAL CODE

Adultery is defined in Section 4972 and reads 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. The section requires the following essentials: -

1. Sexual intercourse by a man with a woman who is and whom he knows or has reason
to believe to be the wife of another man.
2. Such sexual intercourse must be without the consent or connivance of the husband.
Such sexual intercourse must not amount to rape.
3. Complaint by person aggrieved is necessary. (Sec 198 Cr. PC)3

The cognizance of this offence is limited to adultery committed with a married woman, and the
male offender alone has been made liable to punishment. Thus, under the Code, adultery is an
offence committed by a third person against a husband in respect of his wife.

It is argued that this provision is in violation of Article 14 and Article 15 of the Indian
constitution, the former talks about equality before law and equal protection of law, while the
latter prohibits the state from doing any kind of discrimination on the ground of religion, race,
caste, sex or place of birth.

Judicial approach to the criminal offence of adultery has been criticized by the committee on
the state of women in India (CSWI).4 It was challenged as being violative of the constitutional
mandate of equality. However, the supreme court has always maintained that it is not violative
of Article 14 and 15, as sex is a reasonable classification and comes under the purview of
Article 15(3). The apex court however has shifted the burden to the legislature to make changes
to the law. The court has upheld the constitutional validity of Section 497 in 3 landmark cases,
which will be discussed in the following chapters.

2
Indian Penal Code, 1860.
3
Criminal Procedure Code, 1973.
4
Towards Equality, Report of the Committee on the Status of Women in India, Government of India, 1975.

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Yusuf Abdul Aziz vs The State of Bombay5

The constitutional validity of Adultery laws was for the first time questioned in this case,
Section 497 of Indian Penal Code was challenged on the ground that it is in violation of Article
14 and Article 15 of the Constitution of India. However, the court held otherwise and upheld
the constitutional validity of the Section 497 of Indian penal Code.

Justice Bose of Bombay High Court while dismissing the appeal in this case remarked that: -

Under section 497 the offence of adultery can only be committed by a man but in the absence
of any provision to the contrary the woman would be punishable as an abettor. The last sentence
in section 497 prohibits this. It runs- "In such case the wife shall not be punishable as an
abettor." It is said that this offends articles 14 and 15. The portion of article 15 on which the
appellant relies is this:

"The State shall not discriminate against any citizen on grounds only of............... sex." But
what he overlooks is that is subject to clause (3) which runs "Nothing in this article shall
prevent the State from making any special provision for women.......... " The provision
complained of is a special provision and it is made for women; therefore, it is saved by clause
(3). It was argued that clause (3) should be confined to provisions which are beneficial to
women and cannot be used to give them a licence to commit and abet crimes. We are unable
to read any such restriction into the clause; nor are we able to agree that a provision which
prohibits punishment is tantamount, to a licence to commit the offence of which punishment
has been prohibited.

Article 14 is general and must be read with the other provisions which set out the ambit of
fundamental rights. Sex is a sound classification and although there can be no discriminate in
general on that ground, the Constitution itself provides for special provisions in the case of
women and children. The two articles read together validate the impugned clause in section
497 of the Indian Penal Code. The appellant is not a citizen of India. It was argued that he
could not invoke articles 14 and 15 for that reason. The High Court held otherwise. It is not
necessary for us to decide this question in view of our decision on the other issue.

5
1954 AIR 321.

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Smt. Sowmithri Vishnu vs Union of India & Anr6

Facts: - During the pendency of a divorce petition against the petitioner/wife on the grounds
of desertion and adultery, the husband also filed a complaint against one, Dharma
Ebenezer under section. 497 of the Penal Code, charging him with having committed
adultery with the petitioner. Thereafter the petitioner filed this writ petition for quashing
the complaint on the grounds (1) that s. 497 of the Penal Code is in violation of Art. 14
of the Constitution because, by making an irrational classification between men and
women, it unjustifiably denies to women the right which is given to men. This argument
rests on the following three grounds- (i) Section 497 confers upon the husband the right
to prosecute the adulterer but, it does not confer any right upon the wife to prosecute
the woman with whom her husband has committed adultery; (ii) Section 497 does not
confer any right on the wife to prosecute the husband who has committed adultery with
another woman; and, (iii) Section 497 does not take in cases where the husband has
sexual relations with an unmarried women, with the result that husbands have, as it
were, a free licence under the law to have extramarital relationship with unmarried
women; and (2) That the right to life includes the right to reputation and therefore if the
outcome of a trial is likely to affect the reputation of a person adversely, he or she ought
to be entitled appear and to be heard in that trial and since s. 497 does not contain a
provision that she must be impleaded as a necessary party to the prosecution or that she
would be entitled to be heard, the section is bad as violating Art.21 of the Constitution.

Judgement: -

1. The law, as it is, does not offend Article 14 or 15 of the Constitution. The offence of
adultery by its very definition, can be committed by a man and not by a woman: The
argument of the petitioner really comes to this that the definition should be recast by
extending the ambit of the offence of adultery so that, both the man and the woman
should be punishable for the offence of adultery. Where such an argument permissible,
several provisions of the penal law may have to be struck down on the ground that,
either in their definition or in their prescription of punishment, they do not go far
enough. Such arguments go to the policy of the law, not to its constitutionality, unless
while implementing the policy, any provision of the constitution is infringed. Therefore,

6
1985 AIR 1618

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it cannot be accepted that in defining the offence of adultery so as to restrict the class
of offenders to men, any constitutional provision is infringed. However, it is for the
legislature to consider whether Section 497 should be amended appropriately so as to
take note of the transformation' which the society has undergone.
2. Section 497 does not envisage the prosecution of the wife by the husband for 'adultery'.
The offence of adultery as defined in that section can only be committed by a man, not
by a woman. Indeed, the section provides expressly that the wife shall not be punishable
even as an abettor. No grievance can then be made that the section does not allow the
wife to prosecute the husband for adultery. The contemplation of the law, evidently, is
that the wife, who is involved in an illicit relationship with another man, is a victim and
not the author of the crime. The offence of adultery, as defined in section 497, is
considered by the Legislature as 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. In a sense, we revert to the
same point: Who can prosecute whom for which offence depends, firstly, on the
definition of the offence and, secondly, upon the restrictions placed by the law of
procedure on the right to prosecute.

3. Instead of embarking upon this discussion, we could have as well dismissed the writ
petition by relying upon the decision of a Constitution Bench of this Court in Yusuf
Abdul Aziz, which held that section 497 of the Penal Code does not offend Articles 14
and 15 of the Constitution. However, the petitioner's counsel had many more arguments
to advance and since, more than 30 years have gone by since the decision in Yusuf
Abdul Aziz was given, we thought that we might examine the position afresh,
particularly in the light of the alleged social transformation in the behavioural pattern
of women in matters of sex.
4. Though it is true that the erring spouses have no remedy against each other within the
confines of section 497 of the Penal Code, that is to say, they cannot prosecute each
other for adultery, each one has a remedy against the other under the civil law, for
divorce on the ground of adultery. If we were to accept the argument of the
petitioner, Section 497 will be obliterated from the statute book and adulterous
relations will have a freer play than now. For then, it will be impossible to convict
anyone of adultery at all. It is better, from the point of view of the interests of the

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society, that at least a limited class of adulterous relationship is punishable by law.

Stability of marriages is not an ideal to be scorned.

V. Revathi vs Union of India & Ors7

In this case a constitutional gun has been pointed at the provision which in its effect permits
only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the
adulterer to do so. True it is, neither of the spouses can prosecute each other. But the aggrieved
wife complains that to deny her the right to prosecute her offending husband for the offence of
adultery punishable under section 497 of the Indian Penal Code is to violate the Constitution
by discriminating against her on the ground of her sex.

The provision which disables the wife from prosecuting the husband for such an offence is
embodied in Section 198(1) read with Section 198(2)i of the Code of Criminal Procedure, 1973
which carves out an exception to the general rule that anyone can set the criminal law in motion.

The court while dismissing the petition held that

Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the
Criminal Procedure Code go hand in hand and constitute a legislative packet 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. The community punishes 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 erring woman. It does not arm the two spouses to hit each other with the
weapon of criminal law. That is why neither the husband can prosecute the wife and send her
to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination
based on sex. While the outsider who violates the sanctity of the matrimonial home is punished
a rider has been added that if the outsider is a woman she is not punished. There is thus reverse
discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage
the punishment of any of the spouses at the instance of each other. Thus, there is no
discrimination against the woman in so far as she is not permitted to prosecute her husband.
A husband is not permitted because the wife is not treated an offender in the eye of law. The

7
1988 SCR (3) 73.

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wife is not permitted as Section 198( l) read with section 198(2) does not permit her to do so.
In the ultimate analysis the law has meted out even handed justice to both of them in the matter
of prosecuting each other or securing the incarceration of each other. Thus, no discrimination
has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the
right to prosecute the adulterer is restricted to the husband of the adulteress but has not been
extended to the wife of the adulterer.

ANALYSIS

The Supreme Court has held that provision in the Penal Code to be not discriminatory as
according to them neither husband nor the wife could sue each other. The offence is only
directed at the ‘outsider’ who violated the sanctity of the matrimonial home when the outsider
was a man. Thus the scope of adultery in criminal law appears very limited. The fact that a
woman ‘outsider’ violating the matrimonial home in the same way could not be prosecuted
was regarded as being a case of reverse discrimination in favour of women rather than against
her. The basis of this reverse discrimination is however not explained in criminal law. Does it
imply that female paramour can be spared for destroying the sanctity of matrimonial home but
not male. Is this reverse discrimination justified? S. 497 IPC defines adultery as an offence
against the sanctity of matrimonial home, then why does it fail to appreciate that that same act
can be committed by a female?

This double standard has been criticized. “It is the right time to consider the question whether
the offence of adultery is in tune with our present day notions of women’s status in marriage”.
The offence of adultery in the Indian Penal Code permits the husband to prosecute the paramour
of his wife without giving any corresponding right to the wife to prosecute the husband when
he has extra marital relations, or the right to prosecute his paramour. Understandably the
offence of adultery was challenged as violating article 14, as it gave different treatment to men
and women.8

Even if we agree to the argument that law is unbiased in the fact that both husband and wife
can not sue each other for the offence of adultery in the criminal law, why only aggrieved
husband is allowed to sue male paramour for breech in sanctity of matrimonial house, while
the wife is not given a similar right to sue the female paramour. Isn’t it a bias in the law as well

8
Sarkar L. Women’s movement and the legal process. Available at: http://www.cwds.ac.in/OCPaper/
WomensMovementLS.pdf

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as constitutional rights of a female? Law is not only discriminatory towards married females
(wife) as argued by many; it is also towards male (paramour). Wife should have equal right to
sue the female paramour, who seduces the husband.

The National Commission for Woman (NCW) has recently shot down proposals for amending
Section 497 so that woman can be prosecuted for adultery. In an important recommendation, it
has said adultery should be treated as a civil wrong and not a criminal offence. The issue of
adultery should be viewed as a breach of trust. The commission has, however, said this should
be done only after a national consensus is formed on the issue. They added that women are in
a relatively socially disempowered position and laws to protect women need to be strengthened.
The commission has also recommended Section 198(2) of the Criminal Procedure Code (Cr.
PC) to be amended, which as of now has no provision for the wife of an unfaithful husband
from prosecuting him for his promiscuous behaviour.9 We however, disagree with the
recommendations as it will again lead to gender bias in law. For every alleged offence there
needs to be an aggrieved party (victim) and an author of the crime. For the crime of breech in
sanctity of matrimonial house involving male paramour of the wife, husband is the aggrieved
party. Why the criminal law doesn’t view the wife as an aggrieved party when husband and
female paramour are responsible for the same offence in the same manner?

Demand of punishment for wife alone appears baseless as long as husband is not held guilty of
the offence of adultery under the criminal law. If wife is seduced, definitely she can be taken
as a victim and not the author of the crime, and thus punishment to male paramour is justified,
but what if otherwise. Is the punishment to the male paramour justified when he is not the
seducer, or in cases where married female (wife) is the seducer? It needs to be included and
elaborated in the criminal law.

Decriminalized Adultery
Marriage is both, a sacrament and a civil contract and the society has certain notions about the
same. Yet, it is not a standard form contract. The spouses are and should be at a liberty to
choose their own terms of the contract. Therefore, whether they allow each other to have or
maintain sexual relations with third parties should be at the sole discretion of the parties alone.
The National Commission for women recommends that adultery should be made merely a civil
wrong and the Supreme Court impliedly agrees that husband and a wife should not strike each

9
Women can’t be punished for adultery: NCW, The New Indian Express, Coimbatore, Tuesday, December 26,
2006

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other with the weapon of criminal law. Making provisions in Penal law to regulate civil
contracts and particularly the contract of marriage, which is private and personal, is
unwarranted.

Punishment to the person committing adultery is not and cannot be a remedy for a person
aggrieved of adultery. The object of prosecution for adultery is more often to reach a settlement
with the offender at the mercenary level and seldom to send the offender to jail. In fact this was
the very reason why the offence of adultery did not figure in the very first draft. To this extent,
the conditions are not appreciably different even today. The existence of Section 497 has no
apparent effect on society. Acknowledging this most western countries have decriminalised
adultery. It is not a crime in most countries of the European Union, including Austria, the
Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most
of our laws. In the United States, in those states where adultery is still on the statute books,
offenders are rarely prosecuted.

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CONCLUSION
The object of making adultery an offence and restricting it to men alone was to deter men from
taking advantage of women starved of the love and affection of their husbands and deter men
from having sexual relations with the wives of other men. Since men had the social sanction to
maintain such relations and women were starved of the love and affection of their husbands
women were treated as the victims and not the authors of the crime. When Section 497 was
enacted there were no codified personal and matrimonial laws like today but they were unequal
and inoperative.

Over the years polygamy has become illegal while monogamy has become prevalent. Today
the personal laws are equal, operative, effective and efficient. The definition of adultery in
matrimonial laws is much wider in scope that the definition of adultery as a crime. To practice
polygamy or have extramarital relationships without attracting civil action is almost
impossible. Women have begun to establish their own identity in the society and are no more
treated merely as their husbands’ chattel. There are no reasons to retain adultery as an offence
in the penal code. Our personal laws are sufficient to take care of adultery as a civil wrong.

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