What is the Adultery Law in India?

Adultery is an act committed by a married spouse wherein the married spouse commits consensual sexual activity with a partner other than his spouse.

Section 497 described Adultery as: "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 offense of rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor".

This law did not allow married women to file a complaint against their husbands having sexual relationships with other women. This law was incorporated solely for the husband of a married woman to prosecute the man she is having an affair with. 

The adultery law failed to consider the existence of women in the eyes of law and was regarded as the property of their husbands.

Is Adultery a Crime in India?

Adultery was considered a serious crime in India, and hence there were provisions relating to Adultery under Section 497 in The Indian Penal Code. The act of adultery was charged with imprisonment for five years, or fine, or both.

On September 27th, 2018, in the case of Joseph Shine v. Union of India, the Supreme Court of India struck down the 158-year-old Victorian morality law on adultery. Now, it is no longer considered a crime.

The court held that adultery could be, Adultery is only considered a valid ground for divorce. and should not be treated as a criminal offense.

History of Adultery Law in India

Adultery law, a pre-constitutional law, was enacted in 1860. Women at that time had no rights independent of their husbands and were treated as chattel or "property" of their husbands. Therefore, adultery was treated as a crime against the husband, since it was considered a "theft" of his property, for which he could prosecute the offender.

In 1837, the Law Commission of India did not include adultery as an offence in the first draft of the IPC. 

Lord Macaulay, the principal initiator of the Indian penal code was against the possibility of considering such a section in the underlying framework and demanded it is kept outside the purview of the penal laws issued by the Indian Judicial Commission. He felt that such inclusion was unnecessary and baseless and that marital infidelity should be left to the community to be taken care of.

The Second Law Commission suspected something and recommended that keeping the offence out of the IPC would be inappropriate and that the man must be punished, again remembering the state of women in the country. It was included later on. 

The offence of infidelity was mentioned under Chapter XX of IPC which deals with the Offences Relating to Marriage. This provision is designed to create a sense of security in women by restricting adultery to only unmarried women at the same time that men do not commit sexual with another woman.

How has the law against a cheating spouse in India changed in recent times?

The higher judiciary previously held that Section 497 of IPC is not paradoxical with Article 21 of the Constitution. Recently, the Top Court ruled that the 150-year-old law on adultery is unconstitutional, which treats husbands as masters of their wives. Section 497 of the IPC is categorically and conspicuously arbitrary and absurd because it gives unlimited rights to the husband to deal with the wife as he pleases, which is very disproportionate.

This view of the apex changed after a PIL was filed before it in the case of Joseph Shine vs Union Of India on 27 September 2018.

In 2017, Joseph Shine, a non-resident Keralite, moved before a five-judge constitution bench under Article 32 of the Constitution of India challenging the adultery laws of India. Shine in the case had liberally quoted women rights activist Mary Wollstonecraft, and former UN secretary Kofi Anna to highlight his views on women's rights and equality. However, the BJP members opposed the petition by putting forth that diluting adultery laws would impact the sanctity of marriages and would hurt marriage bonds.

In 2018, a five-judge SC bench unanimously struck down Section 497 of IPC after holding it to be violative of Articles 14, 15, and 21 of the Constitution of India. 

• Article 14 - Right to equality - Adultery only prosecuted men and women and hence, it was considered to be a violation of Article 14;
•  Article 15(1) - prohibits the State from discriminating on the grounds of sex - The law only considered the husbands as to the aggrieved party;
• Article 21 - protection of life and personal liberty - Women were treated as the property of their husbands under this law, which is against their basic dignity. 

The bench held adultery is more of a personal issue and does not fit under the definition of "Crime" since it would otherwise invade the extreme privacy of marriage. It is up to the husband and wife to decide what to do after adultery is committed, as it is a matter that should only be left to their discretion. Hence, declaring adultery as a crime would creep injustice into the system.

Legal Action Against Cheating Wife India

In India, Adultery is no longer a crime in India, and no legal action can be taken against a spouse for adultery. However, it can be grounds for divorce and subject to civil fines.

As per the Hindu Marriage Act of 1995, Section 13(1), any willing sexual activity with a person who is not the spouse is cause for divorce. Also, the Special Marriage Act, Section 27(1)(a) allows for divorce based on adultery.

So, if the wife is cheating, then the husband has a complete right to file a petition for divorce with or without mutual consent.

In such cases, it's always recommended to hire an experienced divorce lawyer to get legal advice from a professional, identify the best possible solutions per the scenario, and follow an easy legal process while filing a divorce.

Conclusion

In a landmark judgment, the Supreme Court has declared the 150-year-old law on adultery unconstitutional, marking a significant blow to the archaic and patriarchal legal framework in India. In the Joseph Shine case, the Apex Court emphasized that the beauty of the Indian Constitution lies in its inclusivity, reflecting the essence of 'I', 'you', and 'we'. This decision aligns with the ongoing evolution of legal standards regarding marriage and personal rights. For further insights into related legal provisions, you can explore our knowledge bank on offences relating to marriage.

About the Author:

Adv. Neelam Singh has over 9 years of experience in the legal field. She is a first-generation lawyer coming from a defense background. Her specialization is Matrimonial, Civil, Criminal, Consumer & High court practice.