Decriminalization of Adultery in India

Adultery is defined as sexual intercourse between a married person and another person who is not his/her wife/husband. Section 497 of the Indian Penal Code 1860 defined adultery and provided punishment for the same. It stated that whoever had sexual intercourse with a woman whom he knew to be as the wife of another man without the consent of that man, such sexual intercourse would not amount to rape but would be known as adultery and would be punishable with imprisonment which may extend to 5 years or with fine or both. In this case, the wife would not be punished as an abettor. This section is arbitrary and discriminatory in many ways. The section did not accuse the wife of the adulterous man and deemed her to be innocent without considering that she might be at fault in abetting this adulterous behavior. Neither the husband could initiate criminal proceedings against his wife who had an adulterous relationship with another man nor could the wife criminally punish her husband for having committed the same offence with another woman. This section was regarded as discriminatory because it portrayed the wife as husband's property who cannot be pried upon without the husband's consent. The main concern was that this section was not applicable to a married man who had sexual intercourse with a spinster or divorced woman so his wife could not prosecute him for the same.

Due to the above complications, Section 497 of Indian Penal Code, 1860 and Section 198(2) of the Criminal Procedure Code, 1973 was struck down in Joseph Shine v. Union of India (Writ Petition (Criminal) No. 194 of 2017) as unconstitutional. The court further justified its judgment stating that Article 14 and Article 15(1) provides the right to equality and non-discrimination on basis of sex respectively to each individual but Section 497 only penalizes men and not women which do not come under equality and non-discrimination. Article 21 states about protection and life and personal liberty but Section 497 treats women as the private property of the husband and does not grant any dignity to women. 

Decriminalization of adultery does not give license to men and women to commit adultery whenever they feel like it. Adultery still is a civil wrong and can be used as a ground for divorce or judicial separation. This decriminalization has just removed the discrimination and arbitrariness surrounding this Section and it favours greatly both men and women. The civil rights against this offence are still applicable in India.