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Adultery is an act which spoils the sanctity of a marriage and it is covered as matrimonial and criminal wrong in India under Section 497 IPC as well as under the Personal Laws. There have been conflicting views by the courts with regard to the constitutional validity of Section 497 IPC owing to the unreasonable classification provided under the Section between the two sexes wherein remedy is provided to the husband of the married lady involved in adultery but it does not provide for any similar remedy to the wife of the person who is engaged with the lady, nor does it make the lady indulged in crime as party to the suit in this respect and hence, it amounts to a gender biased approach thereby violating Article 14, 15 and 21 of the Constitution of India. However, this controversy has recently been put to rest by the Supreme Court in the landmark case of Joseph Shine V U.O.I wherein adultery has been proclaimed unconstitutional by the Apex Court of the country and has set at rest the long controversy of 158 years. Through this article, an attempt is made to analyze the concept of adultery and how it has evolved and developed over a period of time.

The paper aims to analyze evolution of the concept of adultery as a criminal wrong under Section 497 of Indian Penal Code and the role judiciary has played from time to time while interpreting and applying the law in this regard .An attempt has also been through this paper to go through different provisions which are available to the spouses as a matrimonial wrong under personal laws to examine that the reform made in criminal law for adultery fulfils international standards and the essence of the preamble of the Constitution.

First Penal legislation dealing with adultery was introduced in India under section 497 Chapter XX of The Indian Penal Code. Fifth Law Commission, in its 42nd Report, and Fourteenth Law Commission, 1997, in its 156th Report on the Indian Penal Code, has suggested for the reformation of the criminal law of adultery by bringing women on the same platform as that of the man. Justice Malimath Committee in 2003 on reforms in criminal justice system also recommended for amending of Section 497. Mulla in his book on Principles of Hindu Law and Dr. Paras Diwan in his book, Law of Marriage and Divorce have discussed adultery as a ground for divorce and judicial separation, under Hindu Marriage Act, Indian Divorce Act, Parsi Marriage and Divorce Act and Dissolution of Muslim Marriage Act. Rattan Lal and Dhiraj Lal in their book.”The Indian Penal Code” and Dr. K. D. Gaur in his book. Text book on Indian Penal Code have discussed in detail adultery as criminal wrong under section 497 IPC. Supreme court has interpreted and applied the law in various cases but landmark case which resolved the 158 years controversy was Joseph Shine V Union of India which was decided in 2017-18.

Adultery as Criminal Wrong
In accordance with the Indian penal Code enacted in 1860, the offence of infidelity is mentioned under Chapter XX of IPC which concerns the Offences Relating to Marriage from Section 494 to 498 of Indian Penal Code. Section 497 has made adultery as criminal offence The law Commission in its 42^nd report (1971) made recommendations for retention of section 497 with few modifications by including adulterous wife also under purview of punishment.[1] Further, the Law Commission of India in its 156th Report (1997) recommended and made observation that the offence of adultery under Section 497 is very limited in scope in comparison to the misconduct of adultery in divorce (civil proceedings)[2] and suggested for reform.In 2003, Justice Malimath Committee report again recommended for a similar punishment to both the sexes and suggested a radical change in the law on adultery.[3] But in spite of all these efforts neither the recommendations of the Law Commissions nor those of the Malimath Committee have been accepted by the Legislature.
 Let us analyse section 497 which reads as – “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 will not be punishable as an abettor[4].”
It has to be read with Section 198(2) of Code Of Criminal Procedure, 1973 which further says that “For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code”.
Keeping in mind the scope of the offence in above mentioned sections it is pertinent to mention here that adultery committed with a married woman is liable for punishment if her husband files the complaint in case such offence is committed without consent or connivance of the husband and women is looked upon as property of the husband. Thus, making the offence of adultery a gender biased offence wherein the wife who is involved in the offence is punished for adultery and on the other hand the wife of the person who is engaged with the lady can file the complaint in such cases.
Adultery as Matrimonial wrong Under Personal Laws
Notable, Adultery is one of the grounds for divorce under all personal laws since it affects fidelity of matrimonial relationship. Section 13(1)(i) of Hindu Marriage Act specifically provides remedy to the other spouse to seek divorce /judicial[5] separation in case the guilty party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse[6].  However the spouse is disqualified from seeking divorce when he/ she has been accessory to or connived / condoned the act of adultery committed[7]. In Muslim Law Section 2(viii) (b)[8] of Dissolution of Muslim Marriage Act, 1939 says that if a husband “associates her with a woman of ill repute”, she can file divorce against her husband. Under Indian Divorce Act section 10((i) provides ground of divorce  to the aggrieved spouse if respondent has committed adultery since the solemnization of the marriage[9].Similar provisions are there in Section 32( d) of Parsi Marriage and Divorce Act which says that the defendant has since the marriage committed adultery. Keeping in view the personal Laws, there are adequate remedies provided in family law to preserve and maintain sanctity of marriage to both the spouses[10].
Judicial Trends
The Indian Constitution has always played a significant role while interpreting and evolving different concepts of law in different phases of developments from time to time. In the same light, the constitutional validity of Section 497 as a criminal wrong was previously challenged before the court taking in view the Preamble and article 14, 15 and 21 of the Constitution but the court upheld its validity.
In Yusuf Abdul Aziz v The State of Bombay,[11] the Court held that Section 497 of the Penal Code does not offend Articles 14 and 15 of the Constitution and the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.
In the case of Sowmithri Vishnu v. Union of India,[12] Divorce petition was filed against the petitioner/wife on the grounds of desertion and adultery pending which, the husband filed another complaint against one Dharma Ebenezer u/s. 497 of the Penal Code charging him for having committed adultery with his wife (petitioner). The petitioner filed writ petition for quashing the complaint on the grounds that section 497 IPC is violative of Art. 14 of the Constitution on grounds of irrational classification between men and women where it confers upon the husband the right to prosecute the adulterer but does not confer on the wife to prosecute the woman with whom her husband has committed adultery. It was also pleaded that it also violates Art. 21 of the Constitution of India. However, the court held that section 497 does not offend Art. 14 or 15 of the Constitution. The offence of adultery by its very definition can be committed by a man and not by a woman and the writ petition was dismissed.
In V. Revathi v. Union of India and others[13], the constitutional validity of Section 198 Cr.P.C. was called  into question  by a  wife by way of the present petition under Article 32 of the Constitution of India. This Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package[14]. In essence, the former being substantive, and the latter being procedural and ambit of both the sections neither permits the husband of the wife to prosecute his wife nor does it permit the wife to prosecute the husband for being disloyal to her.
Finally the court put the controversy at rest in the well celebrated judgement of Joseph shine v. Union of India[15] wherein the apex court struck down Section 497 as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution along with   Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. only to the extent that it is applicable to the offence of Adultery under Section 497 and lastly overruled the decisions in Sowmithri Vishnu ,Rewathi  and W. Kalyani case.

Adultery in India which was based on the notion of patriarchy and male chauvinism was declared unconstitutional by the apex court in case of Joseph Shine V UOI has put an end to the 158 year old gender biased law thereby providing sexual autonomy to each individual. However, adultery is still a civil wrong under personal laws and special marriage Act for the dissolution of marriage as well as judicial Separation. The most required reformation was ultimately taken care of after a lot of efforts and deliberations from different quarters which has shaped the law by putting it at its right place. Adultery is private wrong committed by the spouse within domain of marriage which has adequate remedies to streamline and preserve sanctity of marriage and this amendment has addressed and aims to achieve 3.3 sustainable development goal 2030 in true spirit and it is necessary also to accelerate process of change to give a stimulus to the legal reform in the field of gender justice and to usher in the new dawn of freedom, dignity and opportunity for both the sexes equally.

1. http://www.legalservicesindia.com/article/2191/Adultery.html 2. https://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf.Page 169 3. https://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf, Page 173,Chapter 1x, 4. https://www.mha.gov.in/sites/default/files/criminaljusticesystem.pdf Page 190, 5. Rattan Lal and Dhiraj Lal ,The Indian Penal Code, 911-14 (2006,30 ed.) 6. Section 10,Hindu Marriage Act,1955 7. Satyajeet A Desai, Mulla, Principles of Hindu Law, 99-106 (2001,18th ed.) 8. Section 23(1)(b) Hindu Marriage Act,1955 9. Dissoultion of Muslim Marriage Act, 1939, Section 2(viii)(b) 10. Section 10(1) Indian Divorce Act 1869 11. Paras Diwan, Law of Marriage and Divorce, 413-434 (1997, 2000,3rd ed.) 12. AIR 1954 SC 321 13. AIR 1985 SC 835 , 14. AIR1988 SC 835. 15. K. D. Gaur, A Text book on Penal Law of India, (2004,3rd ed.) 16. Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.