Section 497 - Adultery Law in India

Adultery is a crime that is committed against marriage. Adultery is defined as "sexual intercourse" between a man and a married woman who is not his spouse, with the woman's agreement and without her husband's knowledge or approval; it does not equate to rape. Without the consent or collusion of that man, anyone who engages in sexual activity with a person who he knows or has reasonable suspicions is the wife of another man who commits adultery. This type of behaviour does not qualify as rape and is punishable by either type of imprisonment for a maximum of five years, a fine, or both. The wife won't face consequences for aiding and abetting in such a situation.

Meaning of the word ‘Adultery’

The word "adultery" comes from the Latin word "ADULTERIUM," which refers to extramarital sex and is forbidden by law, society, religion, and morality. Adultery is defined as "an act committed by a married spouse wherein the married spouse commits sexual activity with another person other than his/her spouse."

Adultery is described as a consenting extramarital sexual connection that is morally, socially, and legally unacceptable. It was once illegal as well. The deliberate act of a married person (man or woman) having sex with someone other than their spouse is known as adultery.

Legal Position of Adultery in India

• Section 497 of the Indian Penal Code, in effect prior to 2018, defined adultery as a crime with a maximum five-year jail sentence, a fine, or both.

• In a historic decision, the Supreme Court of India invalidated Section 497 in Joseph Shine v. Union of India (2018).

• Asserting that equality, non-discrimination, and life and liberty are protected by Articles 14, 15, and 21 of the Indian constitution, the verdict brought attention to discrimination and constitutional infractions.

• The Parliamentary Committee on Home Affairs has suggested that under the Bharatiya Nyaya Sanhita (BNS), 2023, adultery be criminalised once again.

• It does, however, propose a significant modification: making it gender-neutral and suitable for both men and women.

• It claimed that because Section 497 was overturned due to prejudice, this shortcoming would be fixed by making it gender-neutral.

The Term of Adultery under the IPC

The Indian Penal Code, 1860 specifies adultery as a crime under Section 497. This clause addresses the components as well as the penalty for adultery. Adultery was defined in India under Section 497 of the Indian Penal Code (IPC) 1860 as:

Section: 497 - Adultery (under chapter XX Indian penal code 1860)

"Anyone who engages in sexual activity with a person whom he knows or has reasonable suspicions is the spouse of another man, without the consent or cooperation of said man, is guilty of the crime of adultery and faces a term of imprisonment of any kind, up to five years, a fine, or both. The wife will not be punished for aiding and abetting in such a situation.’’

Is Adultery Punishable?

• Previously, adultery was punished by up to 5 years in prison, a fine, or both under the Indian Penal Code.

• The sentencing regulations only applied to males who had sexual intercourse with women other than their spouses.

• Wives or other women who had sexual intercourse or extramarital affairs with men other than their husbands were not penalised.

• However, in the current situation, adultery is not regarded as a crime and is not prosecuted as such.

How Can I File a Legal Action for Adultery in India?

Adultery is no longer regarded as a crime, although it is still a valid and primary basis for divorce under Section 13(1) (i) of the Hindu Marriage Act, 1955. In other words, if one party to a marriage commits adultery, the other party may seek divorce since marriage is regarded as a religious connection requiring loyalty between the parties. As a result, if any party violates the sanctity of marriage, the law permits either party to seek divorce because his or her spouse has committed adultery.

The Evolution of Adultery Laws in India

• The Indian Penal Code, which was enacted in 1860, is when the adultery laws were first put into effect.

• Even though adultery was made illegal by Section 497 of the Indian Penal Code, it wasn't recognised as a reason for divorce until the Hindu Marriage Act of 1955.

• Adultery was not a basis for divorce since, before the Hindu Marriage Act of 1955, Hindus had no legal means of obtaining a divorce because, at the time, marriage was regarded as a sacrament. Adultery was not included as a basis for divorce since there was no divorce legislation in place.

• However, once the Hindu Marriage Act of 1955 was passed, which allowed a Hindu man to marry just one woman, the situation altered. Adultery was therefore made a legal basis for divorce to protect the institution of marriage and aid in its dissolution. This would deter the man from engaging in extramarital affairs with women other than his spouse.

• It is important to remember that, even after adultery was declared a valid reason for divorce, it remained illegal under Indian Penal Code Section 497. This is the reason that many lawyers and advocates for women's rights have occasionally questioned whether or not adultery should be illegal.

Note: In 1951, the first lawsuit challenging the statutes of adultery was Yusuf Aziz v. State of Bombay. It was contested on the grounds that it violated Articles 14 and 15 of the Indian Constitution, which guarantee fundamental rights.

Adultery as a Cause of Divorce

• The Supreme Court ruled that adultery can lead to divorce and civil penalties, but not criminal charges.

• Section 13(1) of the Hindu Marriage Act, 1955 states that any voluntary sexual intercourse with a non-spouse is grounds for divorce, while Section 10 defines adultery as a legal separation.

• Section 22 of the Indian Divorce Act established the rules for judicial separation on the basis of adultery.

• The Special Marriage Act of 1954 established that if a person has voluntarily sexual intercourse outside of marriage, it is a legal reason for divorce.

Current Status of Adultery in India

1. Under civil laws: Adultery is grounds for divorce, and if the woman is the guilty partner, she may receive reduced or no support from her husband.

2. Under Hindu law: Adultery is grounds for divorce under Section 13(1) of the Hindu Marriage Act, 1955. This Section defines adultery as consensual sexual intercourse outside of marriage. Previously, the reasons for divorce and judicial separation were distinct, with adultery not being a basis for divorce; however, the Marriage Laws (Amendment) Act of 1976 established adultery as a ground for divorce. Prior to the change, adultery was a reason for judicial separation under Section 10 of the Hindu Marriage Act of 1955.

3. Under Muslim law: Adultery is dealt with in Muslim law as a concept known as lian. Lian deals with charges of adultery rather than adultery itself. If the husband asserts that his wife committed adultery, he has two alternatives under the Dissolution of Muslim Marriage Act of 1939: he can retract his charges, or if the allegations are proven false in court, the wife can get a lian order.

4. Under Christian law: Under Christian law, adultery is dealt with in two ways. The aggrieved spouse may seek for judicial separation under Section 22 of the Indian Divorce Act, of 1869. In contrast, under the second way specified under Section 11 of this Act, the wife can appeal to the courts after obtaining an annulment from the church where the marriage was performed and making the adulterer a co-respondent in the lawsuit.

Landmark Rulings on Penalty for Adultery in India

Joseph Shine v. Union of India 2018

Facts about the Case: In this case, Joseph shine, a non-resident of Kerala, filed a Public Interest Litigation under Section 32 of the Indian Constitution, challenging the legitimacy of the offence of adultery under Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code.

Held: The Supreme Court's five-judge panel unanimously threw down Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code, citing violations of Articles 14, 15(1), and 21 of the Indian Constitution.

Judgement of the Case: The court ruled that while Article 14 of India's Constitution addresses the right to equality, it violates Sections 497 and 198(2) by penalising only males and not women. Similarly, Article 15(1) prohibits sex discrimination. In this instance, the law considers the husband to be the injured party only if the wife has committed adultery, but not if the husband has committed adultery.

Section 21 of the Indian Constitution also deals with the protection of life and personal liberty, however Section 497 of the Indian Penal Code defines women as the husband's personal property, which violates women's basic dignity.

Smt. Sowmithri Vishnu v. Union of India 1985

Facts about the Case: In this case, the petitioner's spouse accused her of infidelity during their divorce. The petitioner challenged the Section on the grounds that it violates Article 14, i.e., the right to equality, of the Indian Constitution, since it creates an arbitrary distinction between men and women by granting the husband privileges that the wife cannot enjoy.

Held: It was argued that this Section did not enable the woman to prosecute an adulterer, although the husband is allowed to do so, and thus the wife is not permitted to take any action against a spouse who commits adultery. In particular, if the spouse has an adulterous connection with an unmarried woman, he is essentially exempt from penalties and so has a free pass to continue the affair.

Judgement of the Case: However, the Court denied this motion on the grounds that weakening the adultery rules would violate the integrity of marriage. This Section was also challenged on the basis of Article 21, i.e., the right to life, because the wife has a right to reputation, and this Section, by failing to regard the woman as a required party, denies the wife the right to defend her case and hence the right to be heard.

Conclusion

Finally, in the Joseph Shine case, the Supreme Court deemed Section 497, which encompassed adultery, which was formerly a criminal offence, invalid. This leaves a person who is aggrieved by adultery with only civil remedies, such as utilising it as a reason for divorce or judicial separation under family law, as well as a decrease in support to be paid under Section 125 of the CrPC. This view, however, is not universal across the country since the army retains the authority to criminally punish its officers for adultery.