Adultery, which had been an offence punishable under the Indian Penal Code (IPC) till 2018, is likely to come back in a new avatar. The Parliamentary Standing Committee on Home Affairs, during its examination of the proposed Bharatiya Nyaya Samhita (BNS), has advised the criminalisation of adultery and the implementation of a gender-neutral provision.
The committee’s draft report recommends that the government should explore the inclusion of a gender-neutral provision for criminalising adultery, either to bring back the provisions in IPC which had been struck down by the Supreme Court five years ago or to bring new provisions for criminalising the same. However, this recommendation has raised many eyebrows and sparked a debate.
In 2018, the Supreme Court of India, in the case of ‘Joseph Shine v. Union of India’, struck down Section 497 of the IPC, which pertained to adultery as an offence. In a unanimous decision by a five-judge bench, the SC deemed the 158-year-old adultery law to be unconstitutional. The SC asserted that the concept that “the husband is the master of the wife” was no longer valid, emphasising that any legal provision impacting the dignity and equality of women was in violation of the Constitution. The then Chief Justice of India (CJI), Dipak Misra, remarked, “It's time to say that the husband is not the master of the wife. Legal sovereignty of one sex over the other is wrong.”
However, adultery remains a ground for divorce, and often, cases involving adultery surface in various courts. In September 2023, the Allahabad High Court refused to approve a man’s request for a DNA test on a child, which he sought to use as evidence to support allegations of adultery against his wife. His goal was to prove that the child was not biologically related to him and, consequently, not his legitimate son. Notably, the child was born within nine months of the man’s marriage to his wife, who is the respondent in this case.
In October 2023, the Karnataka High Court ruled that a wife was not eligible to claim maintenance from her husband under section 12 of the Domestic Violence Act if she had engaged in an adulterous relationship. The High Court’s single-bench dismissed the wife’s revision petition, which aimed to reverse the sessions court’s decision that had initially granted her maintenance as ordered by the magistrate court upon her application.
In 2020, a couple of review petitions challenging the judgment that decriminalised adultery were presented for consideration and the Supreme Court subsequently dismissed them. The bench, led by the then CJI, SA Bobde, stated that there were no grounds to entertain these petitions. Adultery as an offence was effectively eliminated by the courts as they issued orders decriminalising the act with retrospective effect. Additionally, the Punjab and Haryana High Court invalidated a 2014 complaint that alleged adultery as an offence, citing the Supreme Court’s decision in the case of ‘Joseph Shine v Union of India’.
Section 497 of IPC criminalising adultery had been challenged long before the 2018 judgment that finally scrapped the law. In 1951, a man who in the ‘Yusuf Abdul Aziz v State’ was charged with the offence of adultery filed a petition in the Bombay High Court raising the contention that the law of adultery was violative of the fundamental rights under Articles 14 and 15 of the Constitution. His counsel argued that under Section 497 only a man is to be punished for the offence of adultery and the woman goes scot-free, and, therefore, according to him, the law does not operate equally upon all persons. However, the division bench of the Bombay HC, consisting of the then Chief Justice MC Chagla and Justice PB Gajendragadkar, dismissed this argument and refused to invalidate section 497 of IPC. This judgment was overruled by the five-member bench of the Supreme Court in 2018 headed by the then CJI Dipak Misra.
The United Nations (UN) has declared that the criminalisation of adultery is a violation of women’s rights. According to the UN Working Group for Discrimination Against Women and Girls, treating adultery as a criminal offence is a violation of women’s rights to privacy, infringing the International Covenant on Civil and Political Rights. It is also a violation of the Convention on the Elimination of All Forms of Discrimination Against Women’s (CEDAW) prohibition of discrimination in the family. In 2017, the Working Group addressed letters to 33 governments expressing concerns relating to the criminalization of adultery, including India.
The endeavour to reintroduce the antiquated adultery law is not solely a recommendation from the parliamentary committee. The proposed Bharatiya Nyaya Samhita, which is intended to replace the Indian Penal Code, has already incorporated the notion of adultery in an altered manner. Section 83 which refers to “enticing or taking away or detaining married women with criminal intent”, reads as: “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
