File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Decriminalization Of Adultery: A Critical Analysis

The Indian constitution is a remarkable and majestic text that reflects the notion of the golden triangle of basic rights that must be maintained by the legislative and courts. The laws of the country must be in accordance with the fundamental rights guaranteed by the Constitution. In a nation like India, which has faced a new paradigm in the socio-legal status of women from the pre-constitutional era to contemporary India, the court and legislature have analyzed and revised the laws to elevate the status of women to males in society.

The offense of adultery was a pre-colonial legislation imposed by Britain under the IPC, 1860 and prevailed in the country unless it attained decriminalization by the revered Apex Court of India in a significant, table turning judgement, i.e. Joseph Sine v. Union of India[1]. Section 497 IPC was a heinous display of gender bias, and a breach of fundamental rights.

Its constitutional legitimacy had been contested several times after the constitution's promulgation, but the same court that decriminalized it had affirmed its validity for many years. The aim for the Apex court's phased approach to decriminalizing adultery was to establish a system of equality between male and female in the society.

The introduction of new patterns appears to be leading Indian society to embrace Western civilization at the expense of traditional norms. The researcher has also examined the social evolution of matrimony in India, from adultery as a felony against matrimony to its legalization in contemporary society.

The advantages are not without their drawbacks, and this judgement may be no exception. As a result, adultery has become legal but yet immoral. The marital institution is based on the couples' building cooperation. The Court has ruled that it is not permitted to meddle with people's choices personal and moral life. Divorce is the solution for adultery, which has become a civic blunder.

Research Problem:
Adultery is a ubiquitous human phenomenon. It jeopardizes the core of family life and the security of the traditional family, and it may rise to doubts about paternity in marriage. The issue of law is not merely moral; it has been handled in a variety of ways during the previous couple of millennia.

The legal consequences of adultery differ based on region, communal norms, historical era, and prevalent ideology. There have already been numerous debates and conflicts concerning whether or not infidelity should be considered a felony in India. Adultery was an infraction under the IPC until the Apex Court of India decriminalized it in a historic decision on the grounds that this notion was antiquated and biased in regards to gender.

The Ruling in Joseph Shine v. Union of India, which threw down Sections 497 and 198(2) of the IPC, is momentous for several reasons. In its organizational origins, the Court has rarely specified a substantive aspect of a criminal statute.

Research Objectives:
  • To analyze the social and religious conflicts with the decriminalization of adultery.
  • To study the need in amendment for adultery laws and thereby legalizing adultery.
Research Questions:
  • What are the various social and religious challenges faced post decriminalizing adultery?
  • Why is there a need to amend the laws for adultery and hence legalize adultery?

  • The decriminalization of adultery creates a moral, social and religious imbalance in the society.
  • There is an instant need to re-criminalize the heinous wrongdoing of adultery as the citizens have no fear or apprehension before committing this moral wrong.

Causes For The Decriminalization Of Adultery:

Adultery legislation in India today is based on an antiquated concept of marriage. The law not only favours the husband's claim to his wife's loyalty, but it also regards the woman as a commodity of her husband. Any such gender-discriminatory and commercially driven statute runs counter to the spirit of the equality of status established by India's Constitution[1]. It is advocated that the current legislation on adultery be evaluated in light of modern concepts of marriage and the mutual responsibility of married couple emerging therefrom.

The law unambiguously asserts that the adulteress wife maintains no criminal penalties in any potential. Thus, wanting to make 'Adultery' an offense intended relating to marriage. Back in the day, when these rules were enacted, there was a compassionate and benevolent attitude of women's vulnerability. Adultery is not a crime comparable to killing, assault, or any other horrific crime, but it is related to the internal affairs of a marriage and hence should be dealt with in the same manner as any other marital issue. Moreover, the decriminalization of a social issue - adultery shall harm the traditional belief of marriage.

Impact Of Decriminalization Of Adultery:

Marital Unhappiness:

It is not uncommon for a married woman or man to indulge in an inappropriate affair merely since they are dissatisfied with their existing relationship. The unfaithful spouse or partner may believe that their partner does not respond to them, does not care/pay respect to them, or merely does not adore them anymore. A marriage is an institution and branch of family and committing adultery would break the roots of a family. The decriminalization of adultery would cause no fear or apprehension in minds of citizens before performing such a heinous act.

Religious Conflict:

It is believed by the Christians this rule demonstrates God's desire for individuals to practise sexual faithfulness inside marriage and abstinence prior to marriage. Adultery is defined as having sexual relations with someone you are not married to. Adultery is forbidden in Christianity. Christians regard home life and marital relationships as a boon and place a high importance on relationship's permanence. They think that the Church should serve as an example for family life[2]. They incentivize matrimony and are saddened by the breakdown of a marriage.

Marriage, according to Christians, is a covenant made before God. Households are urged to embrace the five fundamental precepts of nonviolence, honesty, non-stealing, celibacy, and non-possessiveness within their existing practical constraints, whereas priests and bishops must strictly adhere to them. Unlike Hindus, who see marriage as a sacrament, Jains regard it as a contract.

Friendship and matrimony are regarded as worldly matters, and matrimony is encouraged so that the person's offspring will follow the very same path (religion). Its goal is to make sex acceptable within a family. Because the role of sex between husband and wife is solely procreative, its involvement is restricted to the ovulation time.

Social Conflicts:

Infidelity jeopardizes the fundamental core of a marital bond in a variety of ways. It affects one or both couples in a union to experience grief and despair, loneliness, sense of betrayal, and perplexity. Several marriages fail as a result of an adultery. Others survive, get tougher, and become much more personal. However, while this is a sound legal policy, this is not a sound social policy.

On a multitude of levels, adultery is a severe societal issue as well as individual people. Community has a considerable interest in tying individuals with each other in long-term relationships. Adultery is unethical because it entails the violation of a commitment, and it is profoundly wrong because it includes the violation of a significant vow.

Adultery can have long-term consequences on the couple's partners and any offspring they may have. Bereavement, mediated inhibition, future behaviour, and psychiatric problems such as stress, emotional inflammation, and depression can all arise as a consequence. With time and treatment, some families have been capable of overcoming adultery.

Criticism & Need To Re-Criminalize Adultery:

"The cognition of the adultery offence committed against a married woman and the male offender was punished. Thereby, under the Indian Penal Code, adultery was an infringement committed by a third party against a husband in reference of his wife. It was not committed by a married man who had consensual sex with an unmarried woman, or with a widow, or even with a married woman whose husband consented to it. It was not essential for the adulterer to know whose wife the woman is, provided that she was a married woman".

The goal of criminalising adultery in the modern day is to dissuade the adulterer from committing such a crime again. One may claim that the law has failed to prevent adultery. Such failure cannot be traced to the legislation itself, but rather to its implementation. If such logic is used, it would apply similarly to laws against rape, murder, trafficking, and so on, but we don't speak about decriminalising these. The entire house would fall if we removed just one brick.

While requiring marriage registration in order to recognise and defend the rights of the people involved, a welfare-oriented and inclusive society like India cannot abolish a crime that undermines the same legally recognised institution. Even if the Supreme Court decriminalised adultery, it would still be illegal under many personal laws, resulting in horrifying discrepancies[1].

Need For Amendment In Adultery Laws:

There is no denying that Section 497 of the IPC contains ambiguities. First, it exclusively governs the ostensibly shady behaviour of the man who commits such a crime, while exonerating the woman involved voluntary behaviour. Second, the advantage of such a statute does not apply to the wife whose husband commits such an offence with another woman. However, such a problem can finally be rectified via an amendment. In India, deception and cheating are criminal by law under Section 420 of the Indian Penal Code (Indian Penal Code).

Adultery is just cheating on a life spouse. Because the other person in the relationship has been through a lot of stress, infidelity should also be penalised. If a person commits adultery, the marriage is already destroyed, and thus the institution of marriage is jeopardised. It is critical to safeguard the purity of marital institutions in society. As a result, adultery should be deemed a crime. People who are afraid of the law are less likely to commit adultery. To defend society's moral principles, we should rely on the law.

The researcher believes that adultery is the same as good as a criminal offence affecting a society immorally at large. It impacts a large number of individuals, and the emotional and psychological consequences for those engaged may be catastrophic. According to research, children from broken homes are less likely to succeed in life and are more likely to have psychiatric disorders. A marriage is predicated on trust, and any behaviour that violates that trust should be penalised by law.

If marriage necessitates a legal licence, then either there should be sanctions for violating that licence, or marriage's legitimacy should be repealed. A formal marriage should be understood to be a contract for shared assets and sexual exclusivity. In the first place, that is the definition of marriage.

To be certified by the state, wedding vows must be seen by a legal witness. There is no reason why breaking the agreement should have no repercussions. One is breaking a commitment established while receiving the licence and making verbal vows in front of a justice of the peace.

  1. Ratanlal Dhirajlal, The Indian Penal Code (33) (2017)
  2. Alyssa Miller, Punishing Passion: A Comparative Analysis of Adultery Laws in the India and their Effects on Women, 41 Fordham International Law Journal, 425-470 (2014).
  3. Abha Singh, Decriminalization of Adultery: A Setback to the Institution of marriage in India, 13 Outlook India, 110-118 (2018).
  4. Joseph Sine v. Union of India, AIR 2018 SC 4898.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly