Authored By: Anisha Nair
Ramaiah College of Law, Bangalore
Introduction:
In modern democracies, does the state have power to punish a person for an act rooted in private morality? Can a voluntary act between two consenting adults be punished as a crime based on patriarchal values and norms? The questions revolved around the debates regarding adultery in India. Pursuant to section 497 of the Indian Penal Code, adultery was perceived as a serious criminal offence committed against a husband’s rights and accordingly provided for punishment as well. Until 2018, in the landmark judgement of Joseph Shine vs. Union of India, where court struck down section 497 for being unconstitutional and gender biased at its core. The decriminalization of adultery brought obsolete colonial and gender biased laws to a halt and promoted true equality, individual liberty and autonomy in personal matters.
Offence of Adultery under Section 497 of IPC:
Section 497: “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.”1
Historical Background:
In the colonial period, Lord Macaulay and his law commission drafted the Indian Penal Code in 1860. At that time, Indian society was deeply patriarchal, and the colonial administration sought to codify criminal laws based on Victorian morality and Christian notions of sexual fidelity. Section 497 of the IPC criminalized adultery in a manner that viewed women primarily as the property of their husbands, rather than as independent individuals capable of free consent.
Under Section 497, only the man who engaged in sexual intercourse with another man’s wife was punishable, the woman involved was treated as a victim and not as an abettor. Moreover, the offence depended on the husband’s consent or connivance. If he permitted the relationship, no crime was said to exist. This revealed the underlying assumption that a wife’s autonomy lay under her husband’s control.
Earlier Judicial Pronouncements on Adultery:
- Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321)
Yusuf Abdul Aziz was accused for committing adultery under Section 497 of the Indian Penal Code, 1860. He challenged the constitutional validity of this section on the ground that it was discriminatory on the basis of sex, as it punished only the man involved in adultery, while exempting the woman from criminal liability and hence, violative of Articles 14 (Right to Equality) and 15(1) (Prohibition of discrimination on the ground of sex) of the Indian Constitution. The State argued that the provision was protected by Article 15(3), which allows the State to make special provisions for women and children. The exemption for women was a protective measure and not discrimination. The judgment established that protective discrimination in favour of women is constitutionally valid under Article 15(3). It also reaffirmed that adultery under Section 497, was an offence committed only by a man against another man’s marital rights, not an act in which both parties were equally culpable.
- Sowmithri Vishnu v. Union of India (AIR 1985 SC 1618)
The petitioner, Sowmithri Vishnu, a married woman, filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of Section 497 of the Indian Penal Code (IPC), 1860, and Section 198(2) of the Code of Criminal Procedure (CrPC), 1973. The section punished only men for adultery, while women were neither punishable nor allowed to initiate complaints. A wife whose husband commits adultery with an unmarried woman or a widow cannot file a complaint, this violates the principle of equal protection under Article 14. The Supreme Court dismissed the petition and upheld the validity of Section 497 IPC and Section 198(2) CrPC. Court contended that adultery is an offence against the husband’s rights, not against the wife. The law intentionally does not make women punishable, as it seeks to protect them from the consequences of the offence.
The decision in both cases reflected the conservative judicial attitude of the time, maintaining a patriarchal view of marriage and denying women agency within criminal law.
Paradigm Shift in Adultery Laws in the 2018 Landmark Judgement: 1. Joseph Shine vs. Union of India (AIR 2018 SC 4898)
Facts and Arguments: Joseph Shine, a non-resident Keralite, filed a Public Interest Litigation under Article 32 of the Constitution validity of Section 497 of the Indian Penal Code, 1860, and Section 198(2) of the Code of Criminal Procedure, 1973. The petitioner contended that the provision criminalizes adultery based on classification based on gender alone, which has no rational nexus to the object being achieved. The consent of the wife is immaterial. Moreover, the petitioner argued that the provisions were violative of fundamental rights under Articles 14, 15 and 21 of the Constitution, due to their paternalistic and arbitrary nature. It was submitted that
since sexual intercourse was a reciprocal and consensual act for both the parties, neither should be excluded from liability.
Judgement: A five-judge panel made up of Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, D.Y. Chandrachud, Indu Malhotra, and A.M. Khanwilkar delivered the unanimous decision to strike down Section 497 of IPC for being obsolete and unconstitutional. It also asserted that Section 198(2) of the CrPC was unconstitutional to the extent as and when it is applied to Section 497 of the IPC. This decision has revoked a lot of prior judgements that criminalized adultery. The judgment given by CJI, Deepak Mishra stated that wives are not the property of the husbands and husbands are not their masters.
Further, Justice D.Y. Chandrachud highlighted the ways in which adultery impacted the right to privacy. He stressed that misogyny and patriarchal beliefs about the sexual control of a woman found no place in our constitutional order, which respects dignity and autonomy as inherent to an individual. Justice Indu Malhotran stated that adultery can be a ground for divorce, but not a criminal offence.
Principle Established: Adultery is no longer a criminal offence in India. It remains a civil wrong and a valid ground for divorce under section 13 of Hindu Marriage Act, 1955. The decision reaffirmed the values of gender equality, individual autonomy, and the right to privacy as integral to the Indian Constitution.
Significance: The landmark judgement marked a historic shift in Indian criminal jurisprudence, marking the final departure from colonial morality embedded in the Indian Penal Code. It not only decriminalized adultery but also redefined the relationship between law, morality, and individual liberty. The decision reinforced the principle that the State has no authority to administer private consensual relationships among adults.
Comparison with international adultery laws
- South Africa
In South African indigenous law only husband has action against adultery. Husband may in first place claim for damages for adultery from the man who entered into the second invalid customary union with his wife. Unless defendant is able to prove his bona fides, he is liable for damages arising out of adultery and pregnancy. The father of a married women may also institute an action for adultery if she is living with her parents as per theleka custom.2 The South African indigenous laws on adultery is also gender biased and regressive. There is a dire need for progressive reforms in adultery laws.
- China:
Adultery has always been a crime for women in china, but never for men. Lawmakers have publically vowed to uphold the principle of equality and have considered extending criminal liability for adultery to men, during mid-1930s. Debates stated that male lawmakers bent the principle of equality to retain men’s sexual privileges. Later, the imperial law on adultery was revised to promote equality and a man could be punished for committing adultery and keeping concubines. Commentators expressed increasing concern over the threat posed by male adultery to family, society, and nation. In the end, the activism of women’s groups and public consensus on the need to regulate male sexuality combined to pressure lawmakers to include men in the adultery law.3
Conclusion:
The decriminalization of adultery was a symbolic liberation of individual dignity and equality within marriage. The judgment acknowledged that love, fidelity, and trust cannot be sustained through fear of punishment, but only through mutual respect and consent. It recognized that human relationships are complex and cannot be governed by outdated notions of ownership or morality imposed by the State. By affirming that women are equal partners and not possessions, the Court moved Indian law a step closer to the ideals promised in the Constitution.
Bibliography:
Cases:
∙ Joseph Shine v. Union of India, AIR 2018 SC 4898
∙ Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
∙ Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.
References:
∙ Ratanlal & Dhirajlal, The Indian Penal Code, 36th edn., LexisNexis (2020). ∙ Law Commission of India, 42nd Report on Indian Penal Code (1971).
∙ Indian Kanoon, “Joseph Shine v. Union of India Judgment” (accessed October 2025).
1 The Indian Penal Code, No. 45 of 1860, § 497 (India). [Now Repealed]
2 JMT Labuschagne & JA van den Heever, The Liability for Adultery in South African Indigenous Law, Comparative and Int. L. J. of South Africa, Vol. 32, 98-125 (1999)
3 Lisa Tran, Sex and Equality in Republican China: The Debate over Adultery Law, Modern China J., Vol. 35, 191-223 (2009)
