Introduction And History
'[Y]ou are not ashamed of your sin [in committing adultery] because so many men commit it. Man's wickedness is now such that men are more ashamed of chastity than of lechery. Murderers, thieves, perjurers, false witnesses, plunderers and fraudsters are detested and hated by people generally, but whoever will sleep with his servant girl in brazen lechery is liked and admired for it, and people make light of the damage to his soul. And if any man has the nerve to say that he is chaste and faithful to his wife and this gets known, he is ashamed to mix with other men, whose behaviour is not like his, for they will mock him and despise him and say he's not a real man; for man's wickedness is now of such proportions that no one is considered a man unless he is overcome by lechery, while one who overcomes lechery and stays chaste is considered unmanly.' - Augustine of Hippo, Sermons 1-19

Adultery refers to having voluntary sexual relations with someone other than one's own spouse. The word adultery has been derived from the Latin verb adulterium which means to corrupt. It is the act of consensual sexual intercourse between a married person with someone other than one's lawfully wedded spouse. To simply put, adultery refers to extramarital sexual intercourse. Morally as well as legally, adultery is something which is not at all acceptable to the society. In Hinduism adultery is defined as the sexual intercourse between a married man and a woman who is not his wife, or between a married woman and a man who is not her husband. Marriage is considered as a pious union of two souls and a sacred relationship in Hinduism. Thus the Hindu shastras consider adultery as a serious breach of dharma.

As per the Vishnu Purana 3.11, 'A man should not think incontinently of another's wife, much less address her to that end; for such a man will be reborn in future life as a creeping insect. He who commits adultery is punished here and hereafter; for his days in this world are cut short, and when dead he falls into hell.'1. Adultery has never been accepted by Hinduism and those who have been involved in it have always been chastised.

Legal Provisions
According to Section 497 of the Indian Penal Code, "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."2.

At present adultery is not punishable under Section 497 of the Indian Penal Code however, it is a ground for divorce. Initially adultery was not an offence under the Code and it was the Second Law Commission which recommended that adultery be made an offence under the Code. Section 497 criminalized the sexual intercourse of a man with a married woman without the consent of her husband when such intercourse did not amount to rape. However, this section did not criminalize the sexual intercourse of a married man with an unmarried woman or a widow or where the husband of a married woman gives his consent.

In case of adultery, the husband cannot prosecute his unfaithful wife but can only prosecute the man with whom his wife has had sexual intercourse (adulterer). The wife of the man who has sexual intercourse with an unmarried woman cannot prosecute either her husband or the woman with whom he has had sexual intercourse (adulteress) as adultery can be committed by a man with a married woman only. The offence of adultery thus punishes only the unfaithful husband or the man with whom a married woman has sexual intercourse other than her husband but not the unfaithful wife.

The constitutionality of Section 497 of the Indian Penal Code was challenged for the first time in the case of Yusuf Abdul Aziz vs. State of Bombay. A petition was filed to challenge the constitutionality of this provision however, the decision was given against the appellant. The validity of the law was again challenged in some cases and the Supreme Court struck down the 158 year old law on adultery in the landmark case of Joseph Shine vs. Union of India in 2018. Joseph Shine, an Indian hotelier settled abroad challenged the constitutionality of Section 497 of the Indian Penal Code. A petition was filed under Article 32 and he challenged the constitutionality of Section 497 of the Indian Penal Code read with Section 198 of the Code of Criminal Procedure.

He argued that Section 497 was violative of Articles 14, 15 and 21 of the Indian Constitution. The reason behind this petition was to protect Indian men from being punished for extra marital relationships by vindictive women or their husbands. A close friend of the petitioner in Kerala committed suicide after one of his women co-workers made malicious and malevolent rape charges on him. The petitioner further stated that Section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism. The traditional framework in which Section 497 was drafted, is no longer applicable in modern society.3.

The petitioner contended that Section 497 is based on the notion that a woman is the property of her husband. The law states that if the husband gives consent to the sexual intercourse between his wife and some other man then adultery is not committed. This provision is thus discriminative on the basis of gender as it gives only men the right to prosecute against adultery which is violative of Article 15 of the Indian Constitution. The petitioner also contended that the provision is unconstitutional as it undermines the dignity of a woman by disrespecting her sexual autonomy and self-determination and is thus violative of Article 21 of the Indian Constitution also.

The Supreme Court stated in its judgment that women are not the property of their husbands and the husbands are not their masters. The Apex Court struck down Section 497 of the Indian Penal Code and held that Section 497 is violative of Articles 14, 15 and 21 of the Indian Constitution and declared the provision as unconstitutional. The Supreme Court also held that Section 198(2) of the Code of Criminal Procedure (CrPC) is also unconstitutional to the extent it is applicable to Section 497 of IPC.

Even though adultery under Section 497 of the Indian Penal Code has been decriminalized yet it is a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955 which states that (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:

1. Has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse4.

This Section lays down that if either the husband or the wife after the solemnization of their marriage has sexual intercourse with any person other than his or her spouse, then that person is liable of adultery and this is a reasonable ground for divorce. A Hindu man as well as Hindu woman can seek divorce on the grounds that his or her spouse has had consensual sexual intercourse with someone other than his or her spouse and has committed the act of adultery.

Present Status
The 42nd Law Commission Report has suggested to substitute Section 497 of the Indian Penal Code with a reformed provision which states:
"Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits adultery, and shall be punished with imprisonment or either description for a term which may extend to five years, or with fine, or with both."

The Mailmath Committee on Criminal Justice Reforms has reiterated more or less the same argument that men and women need to be placed on the same footing as both are equal partners in the crime and equal treatment needs to be meted out to both the genders.

Conclusion
It is beyond doubt that the prevalent law is not in consonance with the present times and the law needs to be changed and a new and better law is the requirement of the hour. The law is neither socially appropriate nor does it conform to the laws of equality. It is high time that recommendations be made and considerations be done in order to introduce a new law on adultery which is in accordance with the needs of the present times and to remove inequalities and irregularities from the present law.

End-Notes:

1. Adultery Divorce, https://www.advocatekhoj.com/library/lawareas/divadultery/1.php, (Visited on 04 November, 2022).
2. https://indiankanoon.org/doc/1833006
3. Bharti Verma, Joseph Shine vs Union of India, https://www.lawinsider.in/judgment/joseph-shine-vs-union-of-india, (Visited on 04 November, 2022).
4. https://indiankanoon.org/doc/932494/, (Visited on 04 November, 2022).

Written By: Akshita Tandon - 4th Year Law Student, University Institute of Legal Studies, Panjab University, Chandigarh, Authored on 08/11/2022.