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Deconstruct and Decriminalise


Right from the first draft of the Indian Penal Code (IPC) in 1860, to the recent petition filed by Joseph Shine in the Supreme Court, attempts have been made to discern the contours of the controversial offence of adultery.

Deconstruction of Section 497 of the IPC draws certain influences on substantive and procedural aspects: The accused, married or unmarried, must have sexual intercourse not amounting to rape with a woman whom he knows, or has reason to believe is the wife of another person who has neither consented nor connived for such sexual intercourse. After commission of such an act, only the husband is entitled to file a complaint against the accused, who can be punished with imprisonment up to a maximum of five years, if found guilty. The wife of the complainant is neither treated as particeps criminis (partner in crime), nor as an abettor. The wife of the accused, if he is married, is not entitled to file a complaint against her errant husband, and is left with only the civil remedy of seeking a divorce from him.

Historically, adultery has been a common deviance within major societies, and has been recognised under Hindu, Muslim and Roman systems of law. Although Lord Macaulay who chaired the First Law Commission decided against making adultery a criminal offence, the Law Commission in its second report did not think it advisable to exclude the offence. Therefore, it stands in its present form under Section 497 of the IPC.

As far as the constitutionality of Section 497 on substantive as well as procedural aspects is concerned, the Supreme Court has observed on every occasion that the arguments challenging its constitutional validity relate to the policy of law and not to its legality. This means that unless the section is modified by an act amending theIPC, the provisions will be held constitutionally valid.

Time and again, the very construction of law has been criticised as sexist, biased and prejudiced. The terms consent and connivance always posit women as subaltern, subordinate and submissive. As it stands today, the right to sexual privacy has been recognised as a fundamental right; a three-judge bench headed by the Chief Justice of India has observed the biblical provision of adultery as archaic; and the petition has been referred to a constitutional bench to deal with the controversial issues surrounding the offence of adultery. At this juncture, twofold suggestions can be extended. First, the offence of adultery should be deleted from the penal code, and should remain only a civil wrong, authorising the aggrieved partner to break up the matrimonial tie. The wife should not be entitled for maintenance if found to be engaging in an adulterous union.

Second, if it is to be retained as a criminal offence, then apart from holding both the man and woman guilty, the wife of the accused, if he is married, should also be entitled to prosecute her deviant husband. Further, the element of consent or connivance should be omitted, as the law is supposed to protect the sanctity of both marriages in question. Apart from such submissions, if the constitutional bench should opine to retain adultery as a criminal offence, it ought to consider the following tentative definition of the offence:

Whoever has sexual intercourse with a married person, not amounting to rape; both of them shall be guilty of offence of adultery which can be punished with maximum two years of imprisonment.

Procedural law should also be amended accordingly. However, my personal submission favours decriminalisation of the offence of adultery, subject to restriction of the right to get maintenance in case of proven adulterous relationship. Once the trust and faith of a marital relationship has been diminished, no amount of penal sanction can rebuild it.

Bibha Tripathi


Updated On : 23rd Feb, 2018


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