• Legal Armor

Adultery: A Criminal or a Moral wrong

Earlier women were treated as the property of the men, who had no right even with her consent to do anything and having sexual intercourse with another man was something which was completely out of discussion and women who then undergone adultery with her own consent to some other men was treated as if men's property is stolen or has hit hard to his masculinity, therefore, the law of Adultery was enacted. Adultery is defined under section 497 of the Indian Penal Code as voluntary sexual intercourse by a married person with some other person who is not his or her spouse, and which is often objectionable by society. This section considers it as a criminal offence punishable with imprisonment for 5 years or more or fine or both. According to this section, only the husband can file a complaint against the men with whom her wife has undergone adultery, whereas the wife does not have a right to file a complaint against another woman with whom her husband had undergone adultery.

This law was quite arbitrary on the part of men and is treating women as the property of the men and moreover talking about the punishment as per this section, the punishment is given only to the men who had committed adultery and not for the women with whom he has done it with her consent, this was complete discrimination on the basis of sex. Section 198 CrPC deals with the person aggrieved and it says that husband of the wife who has committed adultery with some other men is aggrieved and does not consider women as aggrieved whose husband has committed adultery with some other women. The offence of adultery is termed to be a non-cognizable offence that means a person cannot be arrested without an arrest warrant and secondly it is a bailable offence.

Ingredients of Adultery

  • Physical interaction between a married person to another person who is not his or her wife

  • Physical intercourse will be with the consent of both.

  • That physical intercourse must have done without the consent of his or her own spouse.

Decriminalization of Adultery Law:

This ancient narrow law was challenged recently in the case of Joseph Shine v. Union of India (2018 SCC OnLine SC 1676), the question was put to decriminalize adultery law.

In this case, the court struck down this rule, by stating that men are not the master of women, and the court had given many points justifying its decision its decriminalization:

  • First of all, the court observed that law of adultery was arbitrary as women were treated as the property of her man and has no consent of her own and secondly this law does not give the Right to women to file a complaint against the person with whom her husband had an affair with.

  • Section 497 of IPC violates Article 14 as it is treating women and men unequally because as per this section women are not prosecuted only men are being prosecuted and secondly the right of filing the complaint was only with the man and not the women, this is how it was discriminatory

  • Section 497 also violates Article 21 as here women’s right to live with dignity and having sex with her own choice is curtailed as mere consent of her husband in allowing her to have sexual intercourse with some other person does not amount to adultery, this basically shows the subordinate relationship in which men directs women what to do and what not to do

  • Article 15 is also violated as it says no discrimination on the basis of sex but here the aggrieved party is always husband, a wife, in any case, cannot be an aggrieved party.

  • It hampers the women sexual autonomy as she must have a right to have sex or any bodily activity with whosoever she wants

This decision of Supreme Court declared that adultery is no more a criminal wrong but is a moral wrong and thus decree of divorce can be obtained on the ground of one spouse being involved in adultery with another person.


Malika Lalit is currently studying law from School of Law, UPES Dehradun.

Edited By: Swati Tolambia

Disclaimer from Legal Armor:

We at Legal Armor do not endorse the Authors' views and are in no way responsible for the said views. We are just publishing the Write-ups as blogs with just light editing, and are in no way responsible for any legal claims. Legal Armor shall not be liable for any plagiarized content.