Adultery in Criminal Law as opposed to Civil Law

In criminal law: In R v. Mawgridge (1707), it was held that “Where a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer or knock out his brains this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion of property.” Here, we can see that adultery is seen as such a huge wrong that what would otherwise be considered to be murder, is reduced to manslaughter. The reason for the criminalization of adultery is because the wife is considered to be the property of the husband. The man with whom the wife has sexual intercourse outside marriage is considered as the one who robs the property of the husband, thus making it a crime.

In terms of civil law: According to the Merriam Webster Dictionary, marriage is “the state of being united as spouses in a consensual and contractual relationship recognized by law.” Thus, marriage is essentially a contract between two consenting adults. Thus, problems related to marriage should pertain to the civil arena. In India, even prior to decriminalization of adultery by the Supreme Court, the National Commission for Women had recognized marriage to be a contract and the need to decriminalize it and make it a civil wrong.

Section 497 and its Semantics

Adultery was defined under Section 497 of the Indian Penal Code as, “Whoever has sexual intercourse with a person 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 not be punished as an abettor.”

Through this definition, we get an insight into how the criminal law in India looks at a married woman. A married woman is seen, not as an independent human being having her own agency, but as the wife of a man, as the property of her husband, and having no agency whatsoever. The section sees women as objects that need protection. The Section does not enforce punishment on the wife as she is not seen as a party to the crime. In the crime of adultery, a man does a wrong to the husband by ‘enticing’ his wife.

Judicial Discourse on Adultery

Through the years, the Court has taken various different approaches to analyse adultery, before it finally decriminalized it in 2018.

One of the first judgements on the constitutional validity of Section 497 IPC was given in the case of Yusuf Abdul Aziz v. The State of Bombay (1954). In this case, the Court looked at adultery as a special provision made for women under Article 15(3) and thus, it held that Section 497 IPC is not unconstitutional.

Later, in Sowmithri Vishnu v. Union of India (1985), again the question of constitutional validity was brought forward to the Court. In this case, the Court held that for the sake of stability of marriages, a man who has sexual intercourse with a married woman should be prosecuted as it is the gravest evil.

Finally, in Joseph Shine v. Union of India (2018), the Court moved away from the patriarchal bias and notions of marriage and decriminalised adultery. In this case, the Court finally acknowledged the importance of a sense of identity and autonomy of women and held that Section 497 IPC violates the dignity of women.

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