In the legal history India has to mark year 2018 with golden pen. During this year the apex court of India has delivered many significant judgements. Among them decriminalizing adultery by the Supreme Court is one. The court declared that the offence of adultery should be vanished from the penal laws. More over it held that adultery is no longer a criminal act but will be a ground for divorce under civil law. Through this pronouncement court has removed gender bias from the penal statute and also it declared that husband no longer the master of his wife.

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.

On 28th September, 2018 five - judge bench clearly declared that section 497 of IPC is Unconstitutional in Joseph Shine v. Union of India[1]. 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[2].

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.

However, it is also a point to be considered that where marriage is defined as sacrament and as an exclusive relationship between two persons (male and female) and where ethics, morals, religious faiths strongly rooted in the mind set of the people in society, adultery is acceptable? Is this judgment is going to create conflict between morals and law in our society and finally what may be the impact of this judgment on family system, which is one of the greatest system or bonding in Indian society even prizing by other countries.

Historical back ground of the Section 497 of IPC
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.

Here, 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. Hence, 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. Adultery under section 497 of IPC is limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. As stated earlier, the offence is committed only by a man who has sexual intercourse with the wife of another man and without the latter’s consent or connivance.

The wife is not punishable for being an adulterous, or even as an abettor of the offence, despite being a consenting party to the crime. She as an “abettor” will get away with it. However, proof of sexual intercourse is an essential element of the offence but direct evidence is seldom available and in most cases, it has to be inferred from the totality of circumstances. The victim (woman) must necessarily be a married woman whose husband consents or connives to the sexual intercourse, it will not be an offence of adultery and therefore, Section 497 IPC will not be attracted. It is to be noted that the aggrieved party in the offence of adultery is the husband whose wife has consented to have sexual intercourse with some other person than her own husband.

It is also important to considered that section 198(1) of the Code of Criminal Procedure, 1908 specifically provides that no person other than the husband of the woman shall be deemed to be aggrieved by an offence of adultery under section 497 or the section 498 of IPC, provided that in the absence of the husband, some person who had care of the woman on behalf of the aggrieved husband, with leave of the court, make a complaint against the accused. However, the consenting woman (wife of the aggrieved husband) cannot be made a accused in the case.
It has been expressly provided in section 497 that the woman who is a party to the offence of adultery will not be prosecuted as an abettor or a co- accused because the law considers her as victim and not as an author of the crime.

Proposed for Amendment
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.

Position of the offence of adultery in 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. 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. However, adultery is not a criminal offence in the United Kingdom. It is punishable mildly, in some of the European countries such as in 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. In 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. In Pakistan, adultery is viewed as a heinous crime and both the man and woman are subjected to punishment. However, in Malaysia, Singapore, Hongkong adultery is not an offence under the Penal Code. In Philippines, it is the married woman and not the husband is liable for adultery.

Judiciaries earlier stand regarding constitutionality of section 497 of IPC
Before Joseph Shine v. Union of India[3] 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[4],
2. SowmthriVishnu v Union of India[5] and
3. V. Revathi v Union of India[6]

In the case of Yusuf Abdul Aziz v State of Bombay, Yusuf Abdul Aziz on trial for adultery, he challenged Section 497 of Indian Penal Code by arguing that this section is contradictory to Article 14 (Right to Equality) of the Constitution. After losing the case in Bombay, he approached Supreme Court. In SC, he argued that concept of equality enshrined in Article 14 and 15 is violated in the S 497 , by assuming that the offence of adultery could only be committed by a man and by the provision that the adulterous wife be not punished even as an abettor. Some have argued that this gives a license to women to commit adultery. However, the court declared that:
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 license to commit the offence of which punishment has been prohibited.

Article 15 deals with Prohibition of discrimination based on religion, race, caste, sex or place of birth. Article 15(3) enables the government to make special provisions for women and children. It was this Article 15(3) which was debated in this case and the court unanimously through Vivian Bose J declared that the exemption provided by this section is safeguarded by Article 15(3) of the Constitution.

Like this, 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. The Court further observed that sex is a reasonable and sound classification accepted by the constitution, which provides that State can make special provisions for women and children vide article 15(3) of the constitution.

In the second case, Sowmithri v Union of India, it was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men in the sense that it:
(i) Confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right
upon the wife to prosecute the woman with whom her husband has committed adultery,
(ii) Does not confer any right on the wife to prosecute the husband who has committed adultery with another
woman, and
(iii) Does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free license under the law to have extramarital relationship with unmarried women.

When the third argument was raised in Sowmithri case of husband using this section as a license, one question that was arose was that a similar argument can be raised by man too that this provision provides license to women as well. Coming back to the Sowmithri case, court did not find any substance in the argument of violation of Article 14 & 15 of women through S 497 which disables women from initiating any criminal proceeding for the act of adultery.

So, the court observed that the consent of the women in section 497 is of no relevance.

The provisions of this section do not contravene any fundamental right the classification between man and woman made by law is not bad. It is commonly accepted that it is the man who is the seducer and not the woman. The position might have undergone some change over the years, but it is for the legislature to consider whether section 497 of IPC should be amended appropriately so as to take note of the transformation which society has undergone. The court further observed that the fact the a provision for hearing the wife is not contained in section 497 of IPC cannot make that section unconstitutional as violating Article 21 of the Constitution. True, section 497 of IPC does not contain a specific provision for hearing the married woman, but that does not justify the proposition that she is not entitled to be heard at the trial, if she makes an application to the court to that effect.

Then comes the third case of V Revathi v/s Union of India, wherein the petitioner presented the same argument as in the case of Sowmithri which we discussed earlier i.e., of wife being prevented from punishing her adulterous husband but the petitioner also did not miss the argument that that wife of the adulterous husband is also prevented from initiating any proceeding against the husband.

The judgment considered S 497 along with 192(3): 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 union. It does not arm the two spouses to hit each other with the weapon of criminal law.

The cardinal principles held by SC in Joseph Shine v. Union of India
The apex court of India has clearly laid the following principles. They are
1. A husband is not the master and equality is the governing parameter
2. The binding nature of precedent should not be allowed to retain its status or allowed to be diluted
3.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.
4. Section 497 of Indian Penal Code is a reflection of the Social/Patriarchal Dominance
5. Section 497 of Indian Penal Code is absolutely and manifestly arbitrary
6. Section 497 of Indian Penal Code violates Article 21 of the Constitution
7. Patriarchal monarchy over women is unacceptable
8. Adultery can be a ground for any kind of civil wrong including dissolution of marriage Adultery is a discriminatory command
9. Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage and
10. Along with Section 497 of IPC Section 198 of CrPC is also declared Unconstitutional.

Conclusion:
The apex court of India decision regarding decriminalization of adultery has been receiving a variety of talks from Indian society. Some people supporting this judgment as a positive step regarding equality principle. However, there is also a negative response from others. Yes, it is also not a neglected point that Indian society is a monogamous society and people feel here the relationship of marriage is a sacrament. So, decriminalization of adultery is unacceptable to many in 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.

However, it is true that morals, ethical values, love and affection plays more important role in any relation that law. So, self regulation is more important than legal regulation.

End-Notes
[1] Writ Petition Criminal No. 214 of 2017.
[2] Counter Affidavit filed by the Government.
[3] Writ Petition Criminal No. 214 of 2017.
[4] 1951(53) Bom LR 736
[5] 1985 Suppl SCC 137
[6] 1988 SC 835

Written By: Dr. Koneru Anuradha - Assistant Professor in Law, SVD Siddhartha Law College,
Kanuru, Vijayawada, Krishna DT, AP State, India. Pin code: 52007.
Email: [email protected]