1. Amity Law School, NOIDA
Examine the Constitutional Validity of Section 497
Name of Author: Kunal Basu
Enrolment no.: A3256113116
Semester: II
Programme: LLB (BLL 203)
0

2. Index
Introduction ................................................................................................................2
Adultery Law in History ............................................................................................2
Adultery in the Hindu Marriage Act, 1955 ................................................................3
Adultery in the Indian Penal Code .............................................................................3
Adultery in the Criminal Procedure Code .................................................................4
The Legal Position of Parties in an Adultery Case ....................................................5
Early Interpretation of Adultery Law by Courts ........................................................5
Recent Interpretation of Adultery Law by Courts .....................................................6
Standard of Proof in Adultery Cases .........................................................................9
Recommendations for Reform by Law Commission ..............................................11
Conclusion & Recommendations ............................................................................13
1

3. Introduction
The term adultery comes from the words ‘ad’ (towards) and ‘alter’ (other) combined in
the Latin term, adulteriumi. Halsbury's Laws of Englandii (10th Ed.) states the legal definition of
adultery as, “For the purpose of relief in matrimonial jurisdiction, adultery means consensual
sexual intercourse during the subsistence of the marriage between one spouse and a person of the
opposite sex not the other spouse.”
Adultery Law in History
Provisions relating to, and dealing with, adultery have existed in legal codes from ancient
times. Obviously adultery is as old as humankind. The Code of Ur-Nammuiii (ca. 1900-1700
BCE) deals with the crime of adultery. Verse 6 of the Code lays down that ‘If a man violates the
right of another and deflowers the virgin wife of a young man, they shall kill that male’ whereas
verse 7 states that, ‘If the wife of a man followed after another man and he slept with her, they
shall slay that woman, but that male shall be set free.’ Hammurabi’s Code, dating back to at least
1750 B.C., lays down in verse 129, that ‘If a man's wife be surprised, in flagrante delicto, with
another man, both shall be tied and thrown into the water…’ Verse 130 states that ‘If a man
violate the wife (betrothed or child wife) of another man, who has never known a man, and still
lives in her father's house, and sleep with her and be surprised, this man shall be put to death, but
the wife is blameless’, thereby providing a sort of an immunity to the wife involved in an
adulterous relationship, if she were to be a child, in line with the modern day principle of ‘doli
incapax’.
The Ottoman Penal Code of 1858 Article 188iv lays down that ‘He who has seen his wife
or any of his female mahrams, a term which is used to refer to ‘a relative who is within the
prohibited degrees of relationship (i.e. the woman cannot marry the subject)’, with another in a
state of disgraceful adultery and has beaten, injured, or killed one or both of them will be
exempted…’, thereby providing a defence to the husband if he were to kill his wife and/or her
lover on account of having been involved in an adulterous relationship.
Similarly, the 1810 Penal Code of France laid down that ‘…in the case of adultery,
provided for by article 336, murder committed upon the wife as well as upon her accomplice in
flagrante delicto, in the house where the husband and wife dwell, is excusable’, thereby making
2

4. the crime of murdering one’s wife and/or her lover, a good defense in the then French law. The
concerned provision of the 1810 Penal Code of the French, therefore, had a strong resemblance
to the above cited provision of the Penal Code of 1858 of Ottoman origin. These two provisions
of law, that have been done away with since, form the very source for most of the laws in the
Middle Eastern and North African countries that continue to legalize or defend the murdering of
the wives and/or their lovers, by their respective husbands, as a punishment for adultery.
Adultery in the Hindu Marriage Act, 1955
In India, adultery as a ground for divorce is enshrined in S. 13(1)(i)v of the Hindu
Marriage Act, 1955 as follows:
13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the
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(i) has, after the solemnization of the marriage had voluntary sexual intercourse any person other
than his or her spouse;
However, what constitutes adultery has never been explicitly defined.
Adultery in the Indian Penal Code
Therefore adultery is defined under S. 497 of Chapter XX-Avi of the Indian Penal Code
(IPC) as follows:
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.
This section does not penalize the sexual intercourse of a married man with an unmarried woman
or a widow or even a married woman when her husband consents to it. In case the offence of
adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute
3

5. her adulterer. However, since the offence of adultery can be committed by a man with a married
woman only, the wife of the man having sexual intercourse with other unmarried women cannot
prosecute either her husband or his adulteress. Section 497 unequivocally conveys that the
adulteress “wife” is absolutely free from criminal responsibility. She is also not to be punished
(even) for “abetting” the offence. Section 497, by necessary implication, assumes that the “wife”
was a hapless victim of adultery and not either a perpetrator or an accomplice thereof. Adultery,
as viewed under IPC, is thus an offence against the husband of the adulteress wife and, thereby,
an offence relating to “marriage”.
Section-498 (amended in 1976) lays down the punishment for adultery as follows:
Enticing or taking away or detaining with criminal intent a married woman “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 as
sexual intercourse by the man not amounting to the offence of rape, commits
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.”
Adultery in the Criminal Procedure Code
It is in consonance with this approach that Section 198 CrPCvii mandates a court not to
take cognizance of adultery unless the “aggrieved” husband makes a complaint as follows:
198. Prosecution for offences against marriage.—(1) No court shall take
cognizance of an offence punishable under Chapter XX of the Indian Penal Code
(45 of 1860), except upon a complaint made by some person aggrieved by the
offence:
(2) For the purposes of sub-section (1), no person other than the husband of the
woman shall be deemed to be aggrieved by any offence punishable under Section
497 or Section 498 of the said Code: Provided that in the absence of the husband,
some person who had care of the woman on his behalf at the time when such
offence was committed may, with the leave of the court, make a complaint on his
behalf.
4

6. The Legal Position of Parties in an Adultery Case
Section 497 IPC read with Section 198 CrPC, sets the seal of unequal status of “husband”
and “wife” in the institution of marriage in Indiaviii. It declares that:
a) The accused ( B) had sexual intercourse with a woman (W);
b) The woman (W) concerned was wife of another man (M) having been lawfully married to
him ;
c) The accused (B) knew or had reason to believe that the woman(W) was so married;
d) There was no consent or connivance on the part of the husband (M) of the victim woman.
To illustrate, “B” a boy has sexual relationship with “W” a woman who is the wife of “M” a
man. B the flirt knows it or he has reason to believe that W is the wife of poor M. M has neither
given his consent nor connivance to B for such sexual intercourse. Though such sexual
intercourse by B will not amount to rape, but B shall be guilty to the offence of Adultery. B 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 W wife shall not be punished as an abettor. A famous
example is that of Indian Navy Commander KM Nanavati who shot dead businessman Prem
Ahuja on April 27, 1959, for his illicit relationship with his wife Sylvia. While Nanavati faced
prosecution, Sylvia went scot free (K. M. Nanavati vs State of Maharashtra)ix.
Early Interpretation of Adultery Law by Courts
Immediately after the commencement of the Constitution of India, Section 497 IPC was
assailed on the ground that it goes against the spirit of equality embodied in the Constitution. In
1951, Mr. Yusuf Abdul Aziz, charged with adultery, contended before the Bombay High Court
that Section 497 IPC was unconstitutional as it operated unequally between a man and a woman
by making only the former responsible for adultery, in contravention of Articles 14 and 15 of the
Constitution. This, he argued, discriminated in favor of women and against men only on the
ground of sex. Recalling the historical background of Section 497 and the then prevailing social
conditions and the sexual mores oppressive to women, and the unequal status of women, the
High Court of Bombay upheld the constitutional validity of the provision. Chagla, CJ, observedx:
5

7. What led to this discrimination in this country is not the fact that women had a sex
different from that of men, but that women in this country were so situated that
special legislation was required in order to protect them, and it was from this
point of view that one finds in Section 497 a position in law which takes a
sympathetic and charitable view of the weakness of women in this country."
The Court also opined that the alleged discrimination in favour of women was saved by the
provisions of Article 15(3) of the Constitution which permits the State to make "any special
provision for women and children.
In his appeal to the SCxi, Yusuf Abdul argued that Section 497, by assuming that the
offence of adultery could only be committed by a man and mandating a court that the adulteress
wife be not punished even as an abettor, offended the spirit of equality enshrined in Articles 14
and 15 of the Constitution. Such immunity assured to the adulteress wife (even) for her willing
participation in the adulterous sexual activity, it was argued, did amount to a sort of license to
her to commit and abet the offence of adultery. Vivian Bose, J., speaking for the Constitutional
Bench (comprising M.C. Mahajan, CJ Mukherjea, S.R. Das and Ghulam Hasan, JJ.), like Chagla,
CJ, relying on Article 15(3), held that Section 497 was a special provision made for women and
therefore is saved by Art. 15 (3). To the argument that Article 15(3) should be confined only to
provisions which are beneficial to women and should not be used to give them a license to
commit and abet a crime with impunity, the Apex Court responded:
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.
Recent Interpretation of Adultery Law by Courts
More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz
case, constitutional vires of Section 497 was revisited in Sowmithri Vishnu v. Union of Indiaxii. It
was contended that Section 497, being contrary to Article 14 of the Constitution, makes an
irrational classification between women and men as it:
6

8. (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,
(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.
The Supreme Court rejected these arguments and ruled that Section 497 did not offend
either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the
argument that Section 497, in the changed social “transformation” in feminine attitudes and
status of the woman in a marriage, was a flagrant instance of “gender discrimination”,
“legislative despotism” and “male chauvinism”, by opining that it is for the legislature to take
note of such a “transformation” while making appropriate amendments to Section 497. The
argument that Section 497 is a kind of “romantic paternalism” premised on the traditional
assumption that a woman, like a chattel, is the property of man was also rejected by the Court.
The woman petitioner also argued that the right to life, as interpreted by the Supreme
Court in the recent past, includes the right to reputation and the absence in Section 497 of the
provision mandating the court to hear the married woman with whom the accused has allegedly
committed adultery violates her constitutional right to life under Article 21. Assuming that the
right to be heard is concomitant with the principles of natural justice and believing that a trial
court allowed the married woman to depose her say before it recorded adverse findings against
her, the Apex Court held that the absence of a provision mandating hearing the adulteress wife in
Section 497 did not make the section unconstitutional. The Apex Court observed as follows,
hinting perhaps at the need for an executive re-look at this seemingly antediluvian law:
The alleged transformation in feminine attitudes, for good or for bad, may justly
engage the attention of the law-makers when the reform of penal law is undertaken.
They may enlarge the definition of 'adultery' to keep pace with the moving times. But,
until then, the law must remain as it is. The law, as it is, does not offend either
7

9. Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner
that sexual relationship of a husband with an unmarried woman should also be
comprehended with the definition of 'adultery' is a crusade by a woman against a
woman. If the paramour of a married woman can be guilty of adultery, why can an
unmarried girl who has sexual relations with a married man not be guilty of
adultery? That is the grievance of the petitioner.
In V. Revathi v. Union of Indiaxiii this disability was relied upon by a wife to challenge the
constitutional propriety of Section 198(2) read with Section 198(1) CrPC, which, as mentioned
earlier, empowered the husband of the adulteress wife to prosecute the adulterer but did not
permit the wife of an adulterer to prosecute her promiscuous husband. Probably realizing that the
section also did not permit the husband of the adulteress wife to prosecute her for her infidelity
and recalling the ratio of Sowmithri Vishnu case, she asserted that whether or not the law
permitted the husband to prosecute his disloyal wife, the wife could not be lawfully disabled
from prosecuting her unfaithful husband. Such a statutory provision that is premised on gender
discrimination in contravention of the gender equality guaranteed in the Constitution was, the
petitioner wife argued, unconstitutional as it amounted to “obnoxious discrimination”.
Upholding the constitutionality of Section 497 IPC and Section 198(2) CrPC, which according to
the Court "go hand in hand and constitute a legislative packet" to deal with "an outsider" to the
matrimonial unit who invades the peace and privacy of the matrimonial unit, Thakkar, J. of the
Apex Court observed:
The community punishes the ‘outsider’ who breaks into the matrimonial home
and occasions the violation of sanctity of the matrimonial tie by developing an
illicit relationship with one of the spouses subject to the rider that the erring
‘man’ alone can be punished and not the erring woman. ... There is thus reverse
discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does
not envisage the punishment of any of the spouses at the instance of each other.
Thus there is no discrimination against the woman insofar as she is not permitted
to prosecute her husband. A husband is not permitted because the wife is not
treated as an offender in the eye of law. The wife is not permitted as Section
198(1) read with Section 198(2) does not permit her to do so. In the ultimate
8

10. analysis the law has meted out even-handed justice to both of them in the matter
of prosecuting each other or securing the incarceration of each other.
In Earnest John White Vs Mrs. Kathleen Olive White and Others, 1958 SCR 1410: AIR
1958 SC 0441xiv, the wife went to Patna and stayed with Respondent No. 2 under an assumed
name. They occupied the same room, i.e., room No. 10. . The husband filed for dissolution of
marriage on the ground of her adultery. The trial court had granted the divorce and High Court
had reversed the decree of divorce. Upon appeal, SC held that there was undoubtedly a guilty
inclination and passion indicated by the conduct of Respondent No. 2 and there is no contrary
indication as to the inclination and conduct of the wife. On the other hand her conduct as shown
by the evidence was so entirely consistent with her guilt as to justify the conclusion of her having
committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the
guilt should be reversed.
In Hirachand Srinivas Managaonkar Vs Sunandaxv, AIR 2001 SC 1285 : 2001(2)SCR 491 :
2001(4) SCC 125 : 2001(2) SCALE 514 : 2001(3) JT 620, the appellant was the husband of the
respondent. On the petition filed by the respondent under section 10 of the Act seeking judicial
separation on the ground of adultery on the part of the appellant, a decree for judicial separation
was passed by the High Court of Karnataka on Jan 6, 1981. In the said order the Court
considering the petition filed by the respondent, ordered that the appellant shall pay as
maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then
the order was not complied with by the appellant and the respondent did not receive any amount
towards maintenance. Thereafter, on Sep 13, 1983, the appellant presented a petition for
dissolution of marriage by a decree of divorce on the ground that there had been no resumption
of cohabitation between the parties to the marriage for a period of more than one year after
passing of the decree for judicial separation. The SC held that the husband who continued to live
in adultery even after the decree at the instance of wife could not succeed in his petition seeking
decree for divorce and that S. 23(1)(a) barred the relief.
Standard of Proof in Adultery Cases
The charge of adultery, like all other criminal charges, requires strict proof. As the law
presumes innocence till the guilt is proved the party alleging adultery must bear the burden of
9

11. proving the charge. As Lord Atkin said in Ross v. Ross, 1930 AC 1, “That there were
opportunities for committing adultery is nothing: there must be circumstances amounting to
proof that opportunities could be used.” The charge of adultery, in absence of any direct
evidence, can be generally proved by producing presumptive evidence like:
a. Circumstantial evidence
b. Evidence of non-access and birth of children
c. Contracting venereal diseases
d. Evidence as to non-access and birth of a child
e. Evidence of visits to brothels
f. Confession and admission to parties
g. Preponderance of probability
While the courts acknowledge that adultery by its very nature is generally a secret act
where direct evidence is almost impossible, Madras High Court in Dr. Dwaraka Bai vs. Nainan
Mathewxvi observed that “It is unreasonable to expect direct evidence regarding such an act like
adultery. It will be almost always committed behind closed doors and without witnesses.
Therefore, circumstantial evidence is all that can be normally forthcoming regarding adultery.
The circumstantial evidence thus produced must however be convincing to the court which
should be left in no reasonable doubt regarding the fact of adultery.” The Orissa High Court
endorsed this view of the Madras High Court by stating “To prove factum of adultery direct
evidence is not necessary, it can be proved by oral documentary of circumstantial evidence from
which the Court can draw inference beyond reasonable doubt that the opposite party had
adulterous relationship with the third person.” In White v. White, : [1958]1SCR1410 , while
considering similar provisions of the Indian Divorce Act where similar words in Sections 14 and
7 are used, the Supreme Court following the case of Preston-Jones v. Preston Jonesxvii, 1951 AC
391, held
'that the standard of proof in divorce cases would be such that if the Judge is
satisfied beyond reasonable doubt as to the commission of a matrimonial offence,
he would be satisfied within the meaning of Section 14 of the Act. The terms of
Section 14 make it plain that when the Court is to be satisfied on the evidence in
10

12. respect of matrimonial offences the guilt must be proved beyond reasonable doubt
and it is on that principle that the Courts in India would act.'
Regarding the proof of adultery the Madras High Court in Kasturi-Vs-Ramaswami 1979
Cr.L.J 741 observed that sexual intercourse being the gist of offence, direct evidence of an act
of adultery was extremely difficult to find. Direct evidence even when produced would lead the
court to look upon with suspicion as it was highly improbable that any person could witness such
acts which are generally performed with utmost secrecy. In A Jayachandra v Aneel Kaurxviii case
of 2004, the SC had held, “To constitute cruelty, the conduct complained of should be ‘grave and
weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably
expected to live with the other spouse. It must be something more serious than 'ordinary wear
and tear of married life’.”
Recommendations for Reform by Law Commission
The Fifth Law Commission of India, as early as in 1971 recommended that the
exemption of the wife from punishment for committing adultery be removed from S. 497 IPC. It
also felt that an imprisonment for a term up to five years (stipulated in Section 497) was "unreal
and not called for in any circumstances". The recommended Section 497 reads as:
"497. Adultery.—If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
However, the Joint Select Committee substituted the above revised Section 497 by the following:
"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
11

13. 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."
Inspired by the spirit of equality the Fifth Law Commission and the Joint Select Committee have
thus shown their inclination to the equality of the sexes by recommending equal culpability for
the "man" as well as the "woman" for committing adultery. Surprisingly, however, for reasons
best known to them, neither the Law Commission nor the Joint Select Committee has shown any
sensitivity to the equally pertinent traditional proprietary rights of the "husband" over his "wife"
and to the subordination of woman in the Indian family institution. Mrs Anna Chandy, one of the
distinguished Members of the Fifth Law Commission, voicing her reservations about the revised
Section 497 suggested by her other colleague Law Commissioners, observedxix:
"The wife being considered the husband's property, the present provision reserves
for the husband the right to move the law for punishing any trespass on it, while
not giving the wife any corresponding right to complain against any
transgressions on the part of or relating to her husband. Perhaps to make amends
for this harsh discrimination, the present section provides that the wife should not
be punished along with the trespasser. The removal of this exemption clause does
not cause damage to the basic idea of the wife being the property of the husband.
On the other hand, it merely restates the idea, and adds a new dimension to it by
making not only the trespasser but the property also liable to punishment. This, as
noted before, can hardly be considered a progressive step."
It is pertinent to note that recently in 1997 the Fourteenth Law Commission, in its 156th
Reportxx on the Indian Penal Code, endorsed, with minor modifications, the proposal for reform
recommended by the Joint Select Committee. It also stressed that changes suggested in its
revised Section 497 IPC be made in Section 198(2) CrPC. The Apex Court, curiously, did not
attach any judicial significance to the proposal for reform recommended by the Fifth Law
Commission and of the Joint Committee approved by the Rajya Sabha. It could have justifiably
relied upon these proposals to inject gender equality in the adultery law. But it preferred to
assert, time and again, that it is for the legislature to take cognizance of the social
"transformation" and the changed values as they involve questions of "policy of law".
12

14. Conclusion & Recommendations
The IPC, when it took form in 1860, was silent on the punishment for adultery with Lord
Macaulay observing, "There are some peculiarities in the state of society in this country which
may well lead a humane man to pause before he determines to punish the infidelity of wives."
The rationale and circumstances he referred to included child marriage and polygamy. Macaulay,
therefore advised that it would be enough to treat it as a civil injury:
"It seems to us that no advantage is to be expected from providing a punishment for
adultery. The population seems to be divided into two classes - those whom neither the existing
punishment nor any punishment which we should feel ourselves justified in proposing will
satisfy, and those who consider the injury produced by adultery as one for which a pecuniary
compensation will sufficiently atone. Those whose feelings of honour are painfully affected by
the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less
delicate will be satisfied by a payment of money. Under such circumstances, we think it best to
treat adultery merely as a civil injury."xxi
The framers of the code believed that if the women did the deplorable act it was
pressured by their social and private conditions in life. Hence they were actually not at fault and
taking into account their already depleted station in life they should not have been held liable at
least in the eyes of the law.
Prima facie, unequal treatment is meted out by the law to men and women. It makes the
offence punishable for men but not the wife, to punish the man severely and to let the woman
who was an equal part to go scot free is unreasonable on the face of it. It is also discriminatory
that for the same act the man becomes the manifestation of evil but the woman still is considered
virtuous and treated as a victim. It is inexplicable that for the same wrongful act the man is
presumed by the law to have a mens rea while no such presumption is attributed in reference to
the woman. The consent or the willingness of the woman is no impediment to the application of
this section, and, as generally happens, she is quite aware of the purpose for which she is
cheating on her husband and she is an assenting party to it. This violates constitutional provisions
enshrined in Articles 14, 15 & 21.
13

15. Notwithstanding major changes in social mores and the emergence of hitherto unknown
(in India) forms of relationships, including online social media and same sex, Indian courts have
consistently upheld the constitutional validity of Section 497, ostensibly to keep women out of
the purview of criminal law. It is obvious that no adultery can be committed unless a woman is a
consenting partner. The judicial perception that only a man can be “an outsider”, who has
potential to invade the peace and privacy of the matrimonial unit and to poison the relationship
between the unfaithful wife and her husband, therefore, seems to be, with due respect, less
convincing and unrealistic. “An outsider woman”, can, like “an outsider man”, be equally
capable of “invading” the matrimonial peace and privacy as well as of “poisoning” the
relationship of not only her own matrimonial home but also that of her paramour.
Similarly, the judicial opinion that Section 198(1) read with Section 198(2) CrPC,
disqualifying the wife of an unfaithful husband for prosecuting him for his promiscuous
behavior, with due respect, is unconvincing and illogical. Such judicial reasoning, in ultimate
analysis, unfortunately endorses the patriarchal, property-oriented and gender-discriminatory
penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and
access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and
claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous
husband or the “outsider woman” who has poisoned (or colluded with her promiscuous husband
to do so) her matrimonial home. The Apex Court, thus, failed to take contemporary insight of
this gender-biased law of adultery although it has, from time to time, asserted that it is for the
legislature to take cognizance of the social “transformation” and not for it.
In most foreign jurisdictions, adultery, apart from being a ground for divorce, has been
perceived as a criminal wrong against marriage. Similarly, in these jurisdictions, both the
spouses are generally held criminally responsible for their extramarital sexual intimacy. Such a
law in the 21st century undoubtedly seems to be inconsistent with the modern notions of the
status of women and the constitutional spirit of gender equality. During the post-IPC period, a
number of Acts have been enacted to relieve women from the hitherto traditional system of
seclusion and subordination and to assure them a status equal to men in every walk of life. What
is even more surprising is that the Apex Court has not hesitated in steadily expanding the scope
of Art. 21 for all Indians, including women, on other fronts.
14

16. The existing gender discriminatory penal law of adultery, against this backdrop, deserves
a serious relook and revision to the effect that a person, male or female, who, being married, has
sexual intercourse with a female or a male (as the case may be) not his or her spouses without the
consent or connivance of such spouses be made criminally responsible. Similarly, the spouse of
the errant spouse should be allowed not only to seek divorce from the other life partner but also
to initiate legal proceedings with a view to fixing criminal liability of the "outsider" for wrecking
the marriage. The latest proposals for reform of the Fifth and the Fourteenth Law Commissions
of India deserve serious and immediate attention of the legislaturexxii. Such changes are required
to translate the contemporary "social transformation" assuring equality to women and the
constitutional spirit of gender equality into a reality.
Bibliography
Indian Penal Code
Criminal Procedure Code
Citations
i
K.I. Vibhute: "Adultery" in the Indian Penal Code: Need for a Gender Equality Perspective
(2001) 6 SCC (Jour) 16, available at http://www.ebc-india.com/lawyer/articles/2001v6a3.htm on
Jan 11, 2014
ii
AIR 1970 Mad 434, available at http://indiankanoon.org/doc/1364110/ on Jan 11, 2014
iii
The Ur-Nammu Law Code available at
http://realhistoryww.com/world_history/ancient/Misc/Sumer/ur_nammu_law.htm on Jan 11,
2014
iv
Lynn Welchman: Extracted provisions from the penal codes of Arab states relevant to ‘crimes of
honor’ available at http://www.soas.ac.uk/honourcrimes/resources/file55421.pdf on Jan 11, 2014
v
Hindu Marriage Act, 1955, available at bokakhat.gov.in/pdf/The_hindu_marriage_act.pdf on
Jan 11, 2014
vi
Indian Penal Code, 1960, available at http://indiankanoon.org/doc/1569253/ on Jan 11, 2014
vii
Section 198 in The Code Of Criminal Procedure, 1973, available at
http://indiankanoon.org/doc/854390/ on Jan 11, 2014
viii
K.I. Vibhute: op. cit.
15

17. ix
1962 AIR 605, 1962 SCR Supl. (1) 567, available at http://indiankanoon.org/doc/1596139/ on
Jan 12, 2014
x
AIR 1951 Bom 470, (1951) 53 BOMLR 736, ILR 1952 Bom 449, available at
http://indiankanoon.org/doc/430784/ on Jan 11, 2014
xi
1954 AIR 321, 1954 SCR 930, available at http://indiankanoon.org/doc/1343950/ on Jan 11,
2014
xii
1985 AIR 1618, 1985 SCR Supl. (1) 741, available at
http://www.indiankanoon.org/doc/449750/ on Jan 11, 2014
xiii
1988 AIR 835, 1988 SCR (3) 73 available at http://indiankanoon.org/doc/921415/ on Jan 11,
2014
xiv
1958 AIR 441, 1958 SCR 1410, available at http://indiankanoon.org/doc/1064251/ on Jan 11,
2014
xv
SC Appeal (civil) 1473 of 1999, available at http://indiankanoon.org/doc/1872470/ on Jan 11,
2014
xvi
AIR 1953 Mad 792 available at http://indiankanoon.org/doc/210422/ on Jan 11, 2014
xvii
AIR 1966 MP 252 available at http://www.indiankanoon.org/doc/136076/ on Jan 11, 2014
xviii
Case No. Appeal (civil) 7763-7764 of 2004 available at
http://www.indiankanoon.org/doc/1178711/ on Jan 11, 2014
xix
Note by Mrs Anna Chandy, Law Commission of India, Forty-second Report: Indian Penal
Code, supra fn 2, at p. 365 cited at http://www.ebcindia.com/lawyer/articles/2001v6a3.htm#Note15 on Feb 4, 2014
xx
Law Commission of India, One Hundred Fifty-sixth Report: Indian Penal Code (Government
of India, 1997), para 9.46 cited at http://www.ebcindia.com/lawyer/articles/2001v6a3.htm#Note16 on Feb 4, 2014
xxi
Macaulay's Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited from, Law Commission
of India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13
available at http://www.ebc-india.com/lawyer/articles/2001v6a3.htm#Note3 on Feb 4, 2014
xxii
K.I. Vibhute, " 'Rape' and the Indian Penal Code at the Crossroads of the New Millennium:
Between Patriarchist and Gender Neutralist Approach", Journal of the Indian Law Institute
(January-March 2001) cited at http://www.ebc-india.com/lawyer/articles/2001v6a3.htm on Feb
4, 2014
16