Anyone who has sexual relations with a woman who is and knows or has reason to believe to be the wife of another person, without the connivance and consent of that person, such sexual intercourse not constituting to rape offense, is guilty of adultery, and will be punished with imprisonment of either description for up to five years, or a fine. In this case, the woman will not be punished as an accomplice.
By whom a complaint may be filed?
It is only the husband/spouse of woman with whom adultery is committed, can be treated as an aggrieved person and only he can file a complaint. In his absence, another person who was caring for the wife on his behalf at the time the offense was committed may file a complaint on behalf of the husband, if the court allows it. The wife of adulterer is not considered an aggrieved person.
Yusuf Aziz vs State of Bombay, 1954
The main accused Yusuf Aziz claimed that this offence is violator of Article 14 and 15 of the Constitution. He argued that it establishes discrimination between male and female on the basis of gender. It was held that the discrimination was protected by Article 15(3) and so not unconstitutional.
Joseph Shine vs Union of India, September 2018
Section 497 of the Indian Penal Code of 1860 criminalizes the offense of adultery, but only a man can be punished for this offense. The wife is not even treated as an accomplice. Also, if the woman’s husband gives his consent to have sex with another man, there is no offense. The law identifies the married man as a victim because the crime of adultery is considered a crime against the husband. Moreover, it does not give any right to a woman to prosecute her husband who has committed adultery with another woman. Section 497 does not cover cases where a man has sex with an unmarried woman.
The crux of the judgment is:-
- Adultery without a shadow of a doubt can be treated as ground for divorce.
- The husband is not the master of his wife.
- Women cannot be treated as movable property.
- The subordination of any sex over another is plainly unconstitutional
Therefore, the Constitutional Chamber of the Supreme Court invalidated section 497 of the Indian Penal Code of 1860 which criminalizes adultery. The judgment was delivered by the bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. CJI Dipak Misra before pronouncing judgment stated that any provision treating woman with inequality is not constitutional. He went on to strike down Section 497 of IPC on grounds of being manifestly arbitrary and therefore violation of Article 14 (Equality before Law) of the Constitution of India, violation of Article 15(1) (Prohibition of Discrimination), violation of dignity of woman, violation of right to privacy, violation of Article 21(Right to Life) and opposed to constitutional morality.