Prior to the decision of the Supreme Court in September 2018, adultery was an offence in India wherein the husband could file a complaint against the man with whom his wife had engaged in an extra- marital affair with without the husband’s consent by the virtue of S. 497 of the Indian Penal Code, 1860. S. 497 can be said to be bound by the shackles of the archaic law. Adultery acts as an invasion on the right of the husband over his wife. In other words, it is an offence against the sanctity of the matrimonial home and an act which is committed by a man.
The history of S. 497 can be traced back to the First Law Commission of 1837, under Lord Macaulay which had not included adultery as a crime in the original IPC. It was only a civil wrong. The Second Law Commission in 1860, headed by Sir John Romilly, made adultery a crime but spared women from punishment. The law owed it’s justification to the conditions in which they lived which were child marriage, age gap between spouses and polygamy. The drafters of this law took a view that S. 497 was an effort at being sympathetic towards women while also viewing men as the real perpetrators as it were the men who seducers in the equation.
Despite the reasoning behind the legislation, S. 497 suffered from irrationality, arbitrariness and perversity. The section showed the existence of male chauvinism and the patriarchal society. Earlier women were treated as chattels of men and hence the provision portrayed their helpless situation wherein if the husband consents to the intercourse of wife with another man it’s no more an offence of adultery as well as the women cannot register complaint against their husband as this section is confined to a single situation of adultery and generally can be said as an offence against man. Wives of the men committing adultery were also similarly aggrieved by the adulterous act. Excluding her from the purview of initiating criminal prosecution had no just rhyme or reason. She was situated in the same position as an aggrieved husband whose wife has committed adultery. Such exclusion was unjust, illegal and arbitrary and violative of Articles 14, 15 and 21 of Constitution of India.
S. 497 had been used for a long time as a tool for harassment for women as the proving of the sexually illicit affair itself in the Court of Law was a difficult task itself. It serves as a harassing instrument in the hands of men and sometimes, his family members as well to blackmail his wife for some gain. Apart from being a criminal offence, adultery also stands as a ground for divorce applications. Even after the decriminalization of adultery by the Apex Court, it continues being a valid ground for divorce under S. 13 of the Hindu Marriage Act, 1955.
The offence of adultery as was defined before was gender biased not only to men or women but both of them equally. Only men can be punished for this offence and women cannot file complaint against the husband or against his paramour due to legal restrictions. The former law glorified gender bias and this is something that women and men found distasteful. The constitutional validity of Section 497 IPC had been challenged many times and was heard by the Hon’ble Supreme Court in Joseph Shine V. Union of India, this case gave the landmark ruling of decriminalization of adultery.
Section 497 was based on the Doctrine of Coverture. This doctrine holds that a woman loses her identity and legal right with marriage and hence, it was held by the Supreme Court to be violative of her fundamental rights. Marriage cannot mean ceding autonomy of one to the other and such interpretation could not have been allowed by the Apex Court. A marriage is a union of equals and one person cannot be and should not be given such absolute power over the other so as to harm the other’s dignity and existence.
The law itself was made in 1847 and is quite outdated and the decision of the Apex Court has made a landmark decision by striking it down. A question of morality was also raised by Joseph Shine in his petition before the Supreme Court. It was stated that the collective morality should not be made as a hindrance for violation of one’s privacy. Morality can be different from one individual to another and hence, adultery, an act which is primarily morally incorrect should not be criminalized.
The Joseph Shine petition is not the first time that an issue had been raised with regard to the law on adultery. In 1971 itself, that is decades before the Joseph Shine petition, the Law Commission had presented its report whereby it proposed that the law be made more gender neutral in general. Again in 2006, the NCW (National Commission for Women) recommended the decriminalization of the law on adultery but it had no effect.
What is further to be noticed is that the Apex Court did not neutralize the law by making the woman punishable for the Act of adultery or by giving her the power to file a complaint against her husband under S. 497 but rather it decriminalized it to its full extent which puts an end to the state imposed moral itself and gives more power to the individual rights of a person. The decriminalizing of the adultery law has struck an archaic law which has set a precedent for the legal field of the nation. The decision has upheld the constitutional values of fairness and equality. The decision has ensured that the legal position and interpretation is in conformity with the developing scenario of the world and that our nation is not lagging behind due to the historical hindrances formed by patriarchy. The judiciary has taken a proactive role to ensure that such regressive laws are stuck down and a path is paved for more progressive laws.
 Olga Thelma Gomes V. Mark Gomes, AIR 1965 Cal 451
 2018 SCC OnLine SC 1676
- Author: Akanksha Yadav,
- Intern at Lawportal
- Email: email@example.com
Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, Student BBA LLB, 4th Year