CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA – 824236

LAW OF CRIMES –I [ IPC ]

TOPIC - ADULTERY (SECTION 497)

SUBMITTED BY :- SUBMITTED TO :-
SHYAM KUMAR DR. PAWAN KUMAR MISHRA
BA.LL.B (H) DEAN & H.O.D
3rd SEMESTER SCHOOL OF LAW & GOVERNANCE

CUSB1813125100 CUSB, GAYA

 CERTIFICATE

This is to Certify that the topic entitled on “Adultery (section 497)” of

Law of Crime :-I [IPC] is the bona fide work carried out by Mr.

Shyam Kumar student of BA.LLB (H), Semester-3rd 2018-23, under

the guidance of Dr. Pawan Kumar Mishra (Subject Teacher) of Law

of Crime :- I [IPC].

Central University Of South Bihar

School of Law & Governance ........................

Gaya (Bihar) Signature of Faculty

CUSB1813125100 Date:15/10/2019

ACKNOWLEDGEMENT
 I would like to express my special thanks of gratitude to
my Subject teacher Dr. P.K Mishra for their able guidance
and support in completing my project.

I would also like to extend my gratitude to my family

and my friends for their help to complete project in time.

Central University Of South Bihar

School of Law & Governance ........................

Gaya (Bihar) Signature of Faculty

CUSB1813125100 Date:15/10/2019

PREFACE
As a part of the BA.LL.B curriculum I have prepared the project on

the topic “Adultery (Section 497)” under the subject Law of Crime:-I

[IPC]. I have tried to represent them in fine manner. Doing this

project report helped me to enhance my knowledge regarding Some

important cases also.

SHYAM KUMAR

BA.LLB (H)

3rd SEMESTER (2018-23)

CUSB1813125100

CUSB,GAYA ………………
Faculty Signature

CONTENT
 S.N             Topic Pg.No
o
1 Introduction 6
2 Historical perspective Ancient -Recent 7-8
3 In India Historical & legal perspective of 9
Adultery
4 Woman is immune from this section 10
5 Origin & Development of Adultery 11 &12
6 What constitute Adultery 13
7 Some conditions who can prosecute whom 14
8 Important Case 15 – 17

9 Conclusion 18

10 Bibliography 19

INTRODUCTION
The word adultery originates not from adult, which is from Latin a-dolescere, to grow up,
mature but from the Latin ad-ulterare (to commit adultery, adulterate/falsify, "opposite,"
meaning "on the other side of the bond of marriage") 1.Which is contained in the XX part of
the IPC 1860 Offences Relating to Marriage.
In India S. 497 of IPC had been drafted in 1860 during colonial period and since from its
inception it has been whirling into debatable controversies on several accounts such as its
gender bias approach, reflecting cultural conflicts, questioning equality clause and strong
arguments have been raised either for its retention, modification, or complete deletion from
penal statutes. So here in this project i discussed all the related issue regarding adultery.
Consensual physical relation between two individuals who are not married to each other and
either or both of them married to someone else having living spouse is literal meaning of
‘adultery.’ The basis theme of the adultery is sexual relations outside marital relation but the
actual definition of adultery may be vary from different jurisdictions. 2Adultery also known as
‘infidelity’ or ‘extra-marital affair’, is certainly a moral crime and is thought-out a sin by
almost all religions. The dictionary meaning of ‘adultery’ connotes voluntary sexual
intercourse of a married person other than his or her spouse. 3 Thus, the dictionary meaning of
‘adultery’ signifies gender neutrality and it may be committed by either of any sex. It
proposes three conditions for commission of ‘adulterous’ act by the person when–
(i) He or she has a sexual intercourse with opposite sex
(ii) Either one or both of them are having living spouse and knowledge about it.
(iii) Such sexual intercourse is voluntarily committed.
There is however difference in the definition of adultery in aspect of literal, social and legal
definitions. From social point of view, ‘adultery’ means an extra-marital voluntary sexual
intercourse between heterosexual persons either or both of them are married having living
spouse. The legal definition of adultery varies from country to country and statute to statute.
While at many places adultery is when a woman has voluntary sexual intercourse with a
person other than her husband, at other places adultery is when a woman has voluntary sexual
intercourse with a third person without her husband’s consent.

HISTORICAL PERSPECTIVE –ANCIENT TO RECENT

The term adultery has an Abrahamic origin, though the concept predates Judaism and is
found in many other societies. Though the definition and consequences vary between

1
https://www.newworldencyclopedia.orgentry/Adultery.
2
According to Encyclopaedia Britannica.
3
“The Concise Oxford Dictionary of Current English”; Sixth Edn; Oxford University Press.
religions, cultures, and legal jurisdictions, the concept is similar in Judaism, Christianity and
Islam. Hinduism also has a similar concept.4
Historically, adultery has been considered to be a serious offense by many cultures. Even in
jurisdictions where adultery is not itself a criminal offense, it may still have legal
consequences, particularly in divorce cases. For example, where there is fault-based family
law, it almost always constitutes grounds for divorce, it may be a factor to consider in a
property settlement, it may affect the status of children, the custody of children, etc.
Moreover, adultery could result in social ostracism in some parts of the world. Adultery, as
understood in known history of human civilization, was also prohibited as it directly threat
the marital bondage invaded by stranger. Therefore, adultery is also observed to be relative
phenomenon depends upon the values governing the sexual morality in the society. It has also
been governed differently in different society. In Europe, most of the nations only considered
it as civil wrong and only concern of affected individual family, and not of the ‘State’. But in
India, adultery is punishable offence. In most of the African countries tribes have open sex
pattern and ‘adultery’ has not been considered as socially prohibited act. There works the
different form of ‘sexual morality’. Even in most of the tribes those mostly reflect matriarchal
family, the concept of ‘adultery’ is altogether invisible.
Historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and
Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures both
the man and the woman are equally punishable. However, according to ancient Hindu law, in
ancient Greece and in Roman law, only the offending female spouse could be killed and man
was not heavily punished.5 In ancient Greece and Roman world, there were harsh laws
against adultery but these were applicable only if the female was married. But these laws
were not relevant if a man maintained sexual relationship with a slave or an unmarried
female. The Bible too forbids adultery and the seventh commandment clearly states this. In
customary Judaism, both the parties were equally responsible for adultery but it applied only
if the female partner was married. Lord Jesus also abhorred adultery and considered that even
looking at a female lustfully is equivalent to adultery. According to ancient Hindu laws, only
the felonious female were punished & killed while the husbands were considered equal to
god and were left off with warnings only. In few statutes, if either individual is married to
someone else, both parties to an adulterous liaison are culpable to the crime. Christian,

4
Encyclopaedia Britannica Online, "Adultery."
5
R Langland’s Sexual Morality in Ancient Rome (Cambridge.
Jewish, Islamic and Hindu traditions condemn the act of adultery and in Islam; the adulterers
especially the female may be stoned to death.
Law must keep changing with changing societies needs. in many countries there are different
laws from India6. The law relating to criminal adultery prevailing in different States in the
United States revealed that three major formulations of adultery exist under State laws in the
United States, viz.
(i) the common law view (the law of a country or State based on custom, usage, and the
decision of the law Courts, technically referred to as the English legal system);
(ii) the canon (a law or body of laws of a church);
(iii) the hybrid view (followed in twenty states).
According to common law view, adultery takes place only when the woman is married and
both parties are held liable.
Under the canon law view, adultery is the voluntary sexual intercourse of a married person
with a person other than the offender’s husband or wife and only the married person is guilty.
According to the hybrid rule, followed in twenty States in the United States, if either spouse
has sexual intercourse with a third party both transgressors are guilty of adultery. Finally,
eight States held both transgressors guilty, if the woman is married, but if the woman is single
only the man is guilty. Six States do not punish adultery at all. While adultery is not a
criminal offence in Britain7, it is punishable, though mildly in some of the European
countries. For instance, in France, a wife guilty of adultery is punishable for a period ranging
from three months to two years of imprisonment. The husband, however, may put an end to
her sentence by agreeing to take her back. The adulterer is punishable similarly.
In Germany, if a marriage is dissolved as a result of adultery, the guilty spouse as well as the
guilty partner, is punishable with imprisonment for a term of not less than six months, but
prosecution has to be initiated by the aggrieved spouse by means of a petition. In Malaysia
and Singapore adultery is not punishable in law.In Pakistan, adultery is viewed as a heinous
offence and both the man and woman are subjected to punishment. death sentence.

ADULTERY: HISTORICAL AND LEGAL PERSPECTIVE

IN INDIA
Historically in India, ‘adultery’ had been considered as an anti-social activity and prohibited
by law. However, the concept and understanding about the adultery in ancient period and

6
K.D Gaur, A Text Book on the IPC (2004, Ed.).
7
In Britain, Adultery is merely a civil wrong.
modern period is little bit different, and punishment also differs. The ancient code of Manu
merely provided for varying range of punishments for offence of adultery ranging from
simple repentance to the ghastly burning of the offender. From the Manu’s thought it enough
for a high cast man committing this offence with law caste woman to repent, it is reasonable
to conclude that in Manu's views adultery is not per se an offence involving moral depravity.
Hindu Matrimonial Laws do not make a single act of adultery as valid ground for granting
divorce.8 Thus according to Manu, the relationship of upper caste man with lower caste
woman is not adultery, but adverse was the case of adultery.

In India, the provision on ‘adultery’ under the penal statutes has gained controversy from its
inception. The main architecture of Indian Penal Code, Lord Macaulay, was against the
insertion of such section in the original draft and wanted to keep it out of the purview of
penal statutes. According to him, such inclusion will unnecessary and unwarranted and shall
be left to the society to take care for. Therefore the first proposed original draft of Indian
Penal Code did not have any such provision. But it was included latter on. The enacted first
penal legislation in India contained the offence of adultery which was put under Chapter XX
that deals with the Offences related to Marriage 9. It contained four sections [494-498]. Thus
the section as it was stand in the penal statutes prescribed that if a man, married or unmarried
has voluntary and consensual sexual intercourse with a married woman, without the
connivance of her husband, he would be criminal held liable for the offence of adultery. The
plain reading of this section clearly manifested the original prejudices in the mind of the
framer of this section.

WOMAN IS IMMUNE FROM THIS SECTION

In the case of Yusuf Abdul Aziz Vs. State of Bombay , Court held that ;-
“Though we well know that the dearest interests of the human race are closely connected
with the chastity of woman and the sacredness of the nuptial contract, we cannot but feel that
8
Bharat Heavy Plates & Vessels Ltd. vs. Sreeramachandra Murthy (1988)
9
Ratanlal & Dhirajlal, 2 Law of Crimes at 2710 (Bharat Law House 26th ed 2007).
there are some peculiarities in the state of society in this country which may well lead a
humane man to pause before he determines to punish the infidelity of wives. The condition of
the women of this country is, unhappily, very different from that of the women of England
and France; they are married while still children; they are often neglected for other wives
while still young. They share the attention of a husband with several rivals. to make laws for
punishing the inconsistency of the wife, while the law admits the privilege of the husband to
fill his ‘zenana’ with woman, is a course which we are most reluctant to adopt. We are not so
visionary as to think of attacking by law an evil so deeply rooted in the manners of the people
of this country as polygamy. We leave it to the slow, but we trust the certain, operation of
education and of time. But while it exists, while it continues to produce its never failing
effects on the happiness and respectability of women, we are not inclined to throw into a
scale, already too much depressed, the additional weight of penal law.10”

Thus from the inception of S. 497, it was so drafted to make man guilty, and complete shield
to the wife, even she may be the active participant in the commission of an offence. The
further analysis of this section unequivocally conveys that a man alone can commit adultery
and the woman (adulteress) is not liable even as an abettor. Whatever may be justification, or
social necessity, this section clearly from its inception put this presumption on legislative
agenda that whether the woman is a victim of adultery or is herself an adulteress, she is
completely free of being penalized for offence of ‘adultery.’11

‘ADULTERY’ IN INDIA – ORIGIN & DEVELOPMENT

It is pertinent to note that the original draft of IPC prepared by first Law Commission was
silent about the offence of ‘adultery’. Lord Macaulay, who was unwilling to add the provision
10
Ibid.
11
K.D Gaur Textbook on the IPC; 6th ed 2016’(Universal Law House).
Criminalising the adultery as an offence, observed, "There are some peculiarities in the state
of society in this country which may well lead a humane man to pause before he determines
to punish the infidelity of wives." 12 The basic objective of keeping ‘adultery’ out of the penal
statute was the social norms which has already provided the values and norms which take
care of such instances. The circumstances he referred to included child marriage and
polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury. Thus,
framers of the Code did not include adultery as a crime; it was only after the recommendation
of the Second Law Commission it was added to the Code. 13 Thus, it is on the record that the
framers of the Code did not make adultery an offence punishable under the Code. But the
Second Law Commission, after giving mature consideration to the subject, came to the
conclusion that it was not advisable to exclude this offence from the Code.14
The Second Law Commission thought otherwise and said it would not be proper to leave the
offence out of the IPC and suggested that only the man be punished, again keeping in mind
the condition of women in the country.
Thus, in India, a wife is not punished as an adulteress or an abettor for the offence of
adultery. It is only the man who has such unlawful sexual intercourse with married woman
will be punished under S. 497, I.P.C. Moreover, the wife of the adulterer has no locus standi
to file a complaint against her deviated husband. It is only the husband of the (adulteress)
wife who can file a complaint and upon whose complaint the Court can take cognizance of
the offence. This position of law regarding making complaint has been clearly provided under

Cr. P.C.18 Section 198(2), Cr. P.C. treats the husband of the (adulteress) wife an aggrieved
party and not the wife of the adulterer husband.15
Apart from IPC, there is one other penal legislation in India that regulate
‘Adultery’ in India. Ranbir Penal Code, 1932 especially applicable to the State of Jammu and

12
See, Comment on the draft of first Law Commission Report. Gaur K.D., Indian Penal Code. Eastern Law
Publication, 2nd Ed. Pg. 388.
13
Ratanlal & Dhirajlal, 2 Law of Crimes at 2710 (Bharat Law House 26th ed 2007).

14
Ratan Lal and Dhiraj Lal’s Indian Penal Code; 29th ed, 2002, page 2305.
15
K.D Gaur Textbook on the IPC; 6th ed 2016’(Universal Law House).
Kashmir is one such legislation. It provides under S. 497 for the punishment for the offence
of adultery, it reads-
“Adultery: Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or connivance of that
man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such a case the wife shall be
punishable as an abettor.”
Ranbir Penal Code 1932, is applicable till 31st October 2019 in Jammu & Kashmir and after
that in all over India one law will prevail. Also the law related to Adultery, Supreme Court
also struck down and called it unconstitutional.

What constitute adultery ?

It is even more interesting to note that what constitute adultery and how the adultery is being
committed. The relevant provision of S. 497 of the IPC runs as under-
"Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." 16
Thus the adultery under Indian Penal Code has several characteristic features that make it
special provision.
First the section is gender sensitive and can only committed by man and not by the woman.
As it stands, this section makes only man criminally held liable who commits sexual
intercourse with the wife of other man without the consent of her husband and such act has
been punishable and woman cannot be punished even as abettor. Thus the offence cannot be
levelled against the woman.
Secondly, such offence must be committed by the offender with the knowledge or with any
reason to believe that the woman with whom he is undergoing a sexual intercourse is the wife
of another man. In short, the offence has been committed while the marriage of the woman
with whom the sexual relationship has been established shall be in force.
Thirdly, the consent of the wife shall be free and without any force. In case the consent of the
wife is not free consent, it will amount to be a rape, which is more serious.
Fourthly, the section has demarcated that who can prosecute and who can be prosecuted.
Under S. 497, only the husband of the wife who has been involved in adulterous act can only
file complaint and only against the adulterous. The section also protects the wife against
adulterous act and complete protection under the section.17

Some conditions to understand who can prosecute whom

Supposing that in any society, there are unmarried man (UM), two Married Couples (MM1 &
MW1; MM2 & MW2), and unmarried woman (UW). Now consider following case –

Case No. 1:- If the Unmarried Man (UM) has sexual intercourse with the Married woman
(UW1). In this case, the adultery happens and husband of the Married woman (MM1) can file

16
Section 497 of the Indian Penal Code, 1860.
17
Ibid.
complaint against unmarried Man (UM). However Married Man (MM1) cannot file
complaint against his wife (MW1) as she has immunity in the eye of law.

Case No. 2 .: If the Married Man (MM1) has sexual intercourse with the Married Women
(MW2) (or the reverse case MW2 has sexual intercourse with MW1), the offence of adultery
happens. In this case the husband of Married Women [MM2] can file complaint against
Married Man (MM1), but he cannot file complaint against his wife. At the same time, the
wife of adulterous Married Man (MW1) does not have remedy, despite her husband (MM1)
is involved in the adulterous act. Thus, in between both the married pair, in either case of
adultery, only adulterous husband can be prosecuted with complete immunity to wife, but the
wife of adulterous husband does not have any remedy to prosecute her husband.

Case – 3 : If the Married Man (MM1 or MM2) has sexual intercourse with the Unmarried
Women (UW) the adultery does not takes place as section only prescribe the adulterous act
with married woman. In this case the wife of adulterous husband (MW1 or MW2 as the case
may be) does not have any remedy, despite her husband is involve in sexual relation with the
stranger18.

Important cases related to adultery

(1)Yusuf Aziz Vs. State of Bombay case19

The adultery law first came under challenge in 1951 in the Yusuf Aziz versus State of
Bombay case. Petitioner contended that the adultery law violated the fundamental right of
equality guaranteed under Articles 14 and 15 of the Constitution. The dominant argument in
18
Kumar K (Adv.), Punam Rani, Offences against
women : Socio-legal perspectives, Regency Pulication, New Delhi, 1st Ed. 1996

19
AIR 1954 SC 321
the court hearing was that Section 497, governing adultery law, discriminated against men by
not making women equally culpable in an adulterous relationship. It was also argued that
adultery law gave a license to women to commit the crime. Three years later in 1954, the
Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a
license to women to commit adultery. The judgment said that making a special provision for
women to escape culpability was constitutionally valid under Article 15(3) that allows such a
law.

Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is
commonly accepted that it is the man who is the seducer, and not the woman." The Supreme
Court stated that women could only be a victim of adultery and not a perpetrator of the crime
under Section 497.

(2) Sowmithri Vishnu Vs. Union of India20

The next important judgment regarding adultery law under Section 497 came in Sowmithri
Vishnu versus Union of India case of 1985. In this case, the Supreme Court held that women
need not be included as an aggrieved party in the name of making the law even handed. It
also explained as to why women should not be involved in prosecution in the cases of
adultery.

The Supreme Court held that men were not allowed to prosecute their wives for the offence
of adultery in order to protect the sanctity of marriage. For the same reason, women could not
be allowed to prosecute their husbands. The judgment retained the offence of adultery as a
crime committed by a man against another man. The Supreme Court also rejected the
argument that unmarried women should be brought under the purview of the adultery law.

The argument was that if an unmarried man establishes adulterous relationship with a married
woman, he is liable for punishment, but if an unmarried woman engages in a sexual
intercourse with a married man, she would not be held culpable for the offence of adultery,
even though both disturb the sanctity of marriage.

The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law
under Section 497 would mean a crusade by a woman against another woman. The ambiguity
related to adultery law remained unresolved.
20
AIR 1985 SC 1668.
(3) Kishori Lal Sharma Vs. U.P. Public Service Tribunal21

Ex-Constable Kishori Lal Sharma vs. U.P. Public Service Tribunal, the constable had been
dismissed from the service. Allahabad High Court observed that it can be reasonably inferred
that since a woman who is not married with of the Constable having her spouse alive and
marriage not yet terminated, is living with the petitioner she is having sex with him also.
Having sex with another man's wife is adultery as defined in Section 497 of IPC. Hence the
petitioner has committed criminal offence and was dismissed from service. In this case,
however, the action had been taken by U.P. Service Tribunal, despite S. 497 required that
only aggrieved husband can only take cognizance. It may had mute notion that since
employer has discretion to dismiss its employee on the ground of moral turpitude, the
judgement may be justified, though the procedural and technical requirement of S. 497 has
not been met out.

(4) JOSEPH SHINE Vs. UNION OF INDIA22

A petition was filed by Mr. Joseph in which argued that it discriminated against men by only
holding them liable for extra-marital relationships, while treating women like
objects."Married women are not a special case for the purpose of prosecution for adultery.
They are not in any way situated differently than men," his petition said. The law, Mr Shine

said, also "indirectly discriminates against women by holding an erroneous presumption that
women are the property of men".

The petition was heard by 5 judges bench and the decision came with unanimously and the
sec.497 is struck down as unconstitutional being violative of Articles 14,15 and 21 of the
constitution. The decisions of the Sowmithri Vishnu, Rewathi and the case of W. Kalyani
hereby stand overruled.

The law, Mr Shine said, also "indirectly discriminates against women by holding an
erroneous presumption that women are the property of men".

21
2004 (2) AWC 1434.
22
Indiankanoon.org.
All five Supreme Court judges hearing the case said the law was archaic, arbitrary and
unconstitutional. "Husband is not the master of wife. Women should be treated with equality
along with men," Chief Justice Mishra said.

Judge Rohinton Nariman said that "ancient notions of man being perpetrator and woman
being victim no longer hold good".

Justice DY Chandrachud said the law "perpetuates subordinate status of women, denies
dignity, sexual autonomy, is based on gender stereotypes". He said the law sought to "control
sexuality of woman (and) hits the autonomy and dignity of woman".

The Supreme Court scrapped the 150-year old adultery law. Reading out the judgement, CJI
Dipak Misra clearly stated that equality is the need of the hour. He also added that time has
come when the husband should not be considered the master."Adultery cannot and should not
be a crime. It can be a ground for a civil offence, a ground for divorce," a five judge bench
led by outgoing Chief Justice of India Dipak Misra said23.

CONCLUSION

The Supreme Court struck down the Sec.497 as unconstitutional and after that it is not a
criminal offence. It can be a ground for a divorce because of civil offence. Both male and
female have the same right given by struckting down this law.

It is my opinion that by this way after dis-criminalising the adultery law society will divert. It
gives a open way to the society to do as you wish after the marriage also. Yes i know every
body has its rights but it is also his/her duty to run the society in uniform and a civilised
manner. It will also impact on their child, how they gives them the well cultured life and also
it is reason for the cause of domestic violence.

23
https://www.livelaw.in
So, this is my opinion that in Adultery law, there should be punishment for both the party in
which male and female both have the rights to sue each of them for their adulterous act to
keep the marriage a real holy wedlock. I think by penalising thi as a criminal offence then
this will be better for the society and also for their children because it preserve the sanctity of
the marriage.

BIBLIOGRAPHY

In completing this project i take help from all these following sources:-

 K.D Gaur; Textbook on Indian Penal Code;6th ed. 

 PSA Pillai; Criminal Law;16th ed.
 Ratan Lal & Dhiraj Lal’s Indian penal code;29th ed.
 Ratan Lal & Dhiraj Lal;Law of Crimes;26th ed;2007
 AIR 1954 SC 321
 AIR 1985 SC 1668
 Kumar K( Adv), Punam Rani ; offences against women;1st ed;1996
 indiankanoon.org.
 https://www.livelaw.in.
 https://m.economictimes.com.
 https://www.freepressjournal.in.