Adultery in India: Legal Evolution and Judicial

Interpretation Introduction 

Adultery has long been a contentious issue in Indian law, with its criminalization  under the Indian Penal Code (IPC) facing scrutiny for being discriminatory and  outdated. With the enactment of the Bhartiya Nyaya Sanhita (BNS), 2023,  which replaces the IPC, adultery has been formally decriminalized, aligning with  the landmark Supreme Court ruling in Joseph Shine v. Union of India (2018).  While adultery is no longer a criminal offense, it continues to have civil  consequences in matters such as divorce and child custody. 

This article examines the historical legal framework, the Supreme Court’s  interpretation, and the impact of the decriminalization of adultery under the  new BNS, 2023. 

Historical Legal Framework: Adultery Under IPC 

Under the IPC, adultery was previously criminalized by Section 497, which  stated that: 

∙ A man who engaged in sexual relations with a married woman without  the consent of her husband was guilty of adultery. 

∙ The woman was not punishable under this provision, as she was  considered a passive participant. 

∙ The law treated the husband as the aggrieved party, implying that a wife  was the property of her husband. 

This provision was widely criticized for being patriarchal, discriminatory, and  violative of fundamental rights, particularly Article 14 (Right to Equality) and  Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. 

Supreme Court’s Landmark Ruling: Joseph Shine v. Union of India (2018) 

In Joseph Shine v. Union of India, a five-judge Constitution Bench of the  Supreme Court unanimously struck down Section 497 IPC, declaring it  unconstitutional. Key observations from the judgment include: 

Violation of Gender Equality: The Court held that Section 497 treated  women as property of their husbands and denied them autonomy over  their own bodies, which violated Article 14.

2. Right to Privacy and Personal Liberty: The judgment reaffirmed that  consensual relationships between adults fall within the ambit of  privacy, a right recognized in Justice K.S. Puttaswamy v. Union of India  (2017). 
3. Marital Relations as Private Affairs: The Court emphasized that the  state should not interfere in personal relationships unless they involve  coercion, harm, or violence. 
4. Adultery as a Civil, Not Criminal, Offense: The judgment clarified that  while adultery cannot be criminalized, it remains a valid ground for  divorce under civil laws. 

Adultery Under Bhartiya Nyaya Sanhita (BNS), 2023 

With the introduction of BNS, 2023, which replaces IPC, the criminal offense of  adultery has been officially repealed, aligning with the Supreme Court’s ruling.  Unlike its predecessor, the BNS does not include any provision penalizing  adultery, reinforcing the shift towards a more progressive legal framework that  upholds individual rights and gender equality. 

Adultery in Civil Law: Impact on Divorce and Custody 

While adultery is no longer a criminal offense, it continues to have significant  legal implications in civil matters, particularly in divorce proceedings under  personal laws: 

∙ Hindu Marriage Act, 1955 (Section 13(1)(i)) – Adultery remains a  ground for divorce for Hindus. 

∙ Special Marriage Act, 1954 (Section 27(1)(a)) – Adultery is a valid  reason for seeking divorce for individuals married under this law. ∙ Indian Divorce Act, 1869 (Section 10) – Adultery is a ground for divorce  for Christians. 

∙ Muslim Personal Law – While not explicitly codified, adultery can lead  to divorce and denial of maintenance under Islamic law. 

Key Supreme Court Judgments on Adultery and Divorce 

1. Sarla Mudgal v. Union of India (1995) 

o The Supreme Court ruled that a Hindu husband cannot convert to  Islam solely to enter into a second marriage, as this would violate  monogamy laws under Hindu personal law. Adultery was  recognized as a ground for divorce.

2. Revathi v. Union of India (1988) 

o The Court upheld the earlier gender-biased provision of Section  497 IPC, but this ruling was later overturned by the Joseph Shine  judgment (2018). 

3. V. Bhagat v. D. Bhagat (1994) 

o The Supreme Court clarified that adultery must be conclusively  proven before it can be used as a ground for divorce. 

4. Subramani v. M. Chandralekha (2005) 

o The Court ruled that a mere allegation of adultery is not sufficient;  strong evidence is required to prove the claim. 

Challenges Post-Decriminalization 

Despite the progressive move towards decriminalization, several challenges  remain: 

∙ Moral Policing: Many conservative sections of society continue to  stigmatize adultery, leading to social ostracization of individuals involved  in extramarital relationships. 

∙ Misuse in Divorce Cases: While adultery is a ground for divorce, false  allegations may sometimes be used to gain leverage in legal disputes. ∙ Conflicting Personal Laws: Different personal laws interpret adultery  differently, creating inconsistencies in legal outcomes. 

Conclusion 

The repeal of Section 497 IPC and its exclusion from BNS, 2023, marks a  progressive shift towards gender equality, personal liberty, and autonomy.  While adultery is no longer a criminal offense, it remains a valid ground for  divorce under various personal laws. 

The Supreme Court’s ruling in Joseph Shine v. Union of India (2018) played  a crucial role in redefining individual rights, gender justice, and marital  autonomy. Moving forward, it is essential to ensure that personal choices are  respected, legal provisions are consistently applied, and societal attitudes  towards relationships evolve in a manner that upholds constitutional values.