Authored By – Garima Sharma
“When a man and woman marry, God is always watching and listening (whether or not it is a church wedding), and he will hold each accountable before him for keeping their wedding promises.”
~ (Bible: Proverbs 2:17; Malachi 2:14)
On 27.09.2018, a 5-Judge Bench unanimously struck down Section 497 IPC and declared Section 198(2) of CrPC as unconstitutional, both being violative of Article 14, 15 and 21 of the Constitution of India. The response to this judgment has arisen to be a mix tape. Some people are in favor of the Constitutional Bench Judgment and some are furious over it opining that this may increase the divorce rates in India and will eventually damage the institution of marriage. Marriage is not only a ceremony but a sacrosanct between two individuals and their respective families. The 243- page judgment has given enough reasons of why the provision must be struck down. This blog intends to focus upon the negative implication that may cause post the Adultery Judgment and why the struck down provision should’ve been tilted and not absolutely scrapped off. The intention behind the write up is just to see and understand the other side of the coin.
There is no iota of doubt that the age- old law on adultery defined under IPC was truly a provision undignified, demeaning, insensitive and discriminatory towards women, wherein the wife was portrayed as a property possessed by her husband. The law was a one-sided sword reflecting upon the patriarchal status of the Indian society which it used to hold more than 150 years ago. The provision was problematic in many aspects:
- It imposed culpability only on the man with whom the wife has committed adultery;
- It was punishable with maximum five years of imprisonment;
- Women, though exempted from prosecution, were treated as property of husband (as the language of the provision suggests), in the sense, that if the husband consents, the other man can maintain sexual relationship with the wife; and
- No such law was applicable on the husband, if he commits adultery.
The suggestions which were imbibing in years prior to the Judgment were to make the provision gender neutral as it portrayed the image of a wife as a property owned and controlled by her husband. The provision stated that extra-marital relationship between a wife and another man shall not amount to crime “if the husband had shown his consent over it”. The 42nd Law Commission Report of India, 1971 and the Malimath Committee on Legal Code Reforms, 2003 suggested to make Section 497 IPC as gender neutral provision; the former also suggested of reducing the punishment of imprisonment from five years to two years. Even in the 156th Law Commission Report of 1997, the suggestion was to reform the law on adultery and retain the years of punishment to five years. It was in 2006 when the National Commission for Women recommended for decriminalization of the provision and to make it as a civil wrong. Public suggestions were of to make either of the spouse liable for having an extra marital affair with another person (whether married or unmarried). However, inspite of making progressive changes in the provision, the Judiciary chose to strike down the entire law, providing transparent license to people to freely discourage their marriage vows and seed relations outside their marriage. This will not only harm the marriage per-se but will also emotionally destroy the children of the marriage as they shall see their home breaking into small pieces. It won’t be wrong to state that the infamous judgment of Joseph Shine v. Union of India has made a mockery of the institution of marriage to some extent.
We live in a secular country. A country of diversified language, culture, values, customs, religion and beliefs. A country where the holy scriptures such as Srimad Bhagavad Gita, Vishnu Puran, the holy Quran and the holy Bible are considered to be as the sacred writings of the God. It is interesting to know that even the aforementioned holy books have condemned adultery. They have prescribed some serious and rigorous punishments for those who commit adultery. Adopting such punishment in todays’ era would not only be inhumane but barbaric. Our holy scriptures consider adultery as a sin; and not considering it even as a criminal offence in todays’ time, is something which is unjustifiable. George Bernard Shaw has rightly said, “Progress is impossible without change; and those who cannot change their minds cannot change anything”. We live in an era of equal society; where men and women are treated equally. Woman is not property of any man, be that her father, brother, husband or son. It’s an era of independence. It is certainly a matter of joy that the Hon’ble Supreme Court has recognized this fact and has taken requisite action on it, as it deemed fit. However, such far reaching changes can have unwanted consequences. The same happened with this case as well. Instead of making requisite amendments in the provision, the Bench considered an absolute strike down of the provision, putting a big question on the sanctity of marriage in India.
It is rather shocking to know that an app named “Gleeden”, best known for creating extra-marital relationships, has gained a humungous number of subscriptions in India in the past three years, specifically after the Joseph Shine Judgment. The French origin app launched in 2009, has been seeing its popularity at its peak since 2019 as the subscribers on this app are increasing day by day. On 24.02.2019, it was reported that 5 lakh Indians subscribed to the app. Ms. Solene Paillet, the Marketing Strategist for Gleeden says in an interview, “last year, women were 25 per cent of Gleeden’s Indian users, today they are 30 per cent. This shows that more and more women are connecting to Gleeden every day.” She further added that “Our current ratio in India is 70 per cent men and 30 per cent women, which is a very high percentage considering that services for extra-marital meetings attract men in large numbers.” This means that the rate of subscribers has increased in the past three years; there was a reason why the subscription rate was low prior to the judgment. There was a sense of fear, a sense of guilt in the minds of people. That fear has now gone away with the decriminalization of adultery in India. According to the Gleeden Survey of 2020, 55% of married Indians have been unfaithful to their partner and this has increased in 2019. What are we reflecting at? It is quite evident that since the judgement has passed, the number of users on the app has drastically grown, reflecting upon the path on which the Indian population is moving, that critiques were anticipating. Therefore, it can be said that the mindsets of the people are changing in such a manner that it is giving them an open window to maintain relationships outside the wedlock; ridiculing the institution of marriage which is considered to be a sacred alliance in our Country. In a nation afflicted with rising divorce rates and instances of marital infidelities, the decriminalization of adultery has critically jeopardized the institution of marriage. Not only does it run the risk of encouraging extra-marital affairs, the option of divorce as the way out will catalyze the break-up of marriages, leaving the children staggered.
So, the pressing question remains, is the scraping of Section 497 IPC a progressive step towards providing equal rights to the women, or a step damaging the sacred institution of marriage? Adultery can be a by-product of broken marriages. In the name of progressiveness or in the name of liberation, we should not put family values at stake. Family values are our golden heritage which we must cherish. It is the duty of the three organs of the State to protect our golden heritage, they must make people understand that cheating on your spouse is not something one should be fearless about, and certainly not pardonable. A much practical approach is better to get out of the marriage, get free and then enter into any other relationship, rather than getting into an extra- marital affair and destroying the purity of the marital relationship; violating the right to live with dignity of the spouse who gets cheated. Getting out of a marital relationship in a dignified manner is much better than getting out in disgrace.
Adultery is now just a civil offence. It is like a sword without an edge. Anything which is an offence must be entitled for imposition of penalty; nothing has been discussed about it in the judgment except that it’s a civil offence and will aid in terms of alimony. Adultery stands to be a ground for divorce. Looking from a psychological perspective, if a spouse is thinking of getting into an extra- marital affair, he/she has already moved a step forward towards breakage of his/her marriage. Putting it as a ground of divorce by the other spouse won’t harm the spouse who cheated, as he/she was already ready for it, yet it will help the spouse to get early divorce and handsome alimony. In simple words, committing an extra-marital affair now doesn’t create a sense of fear in the mind of spouse who tends to cheat.
Then what could have been the alternative? There is no doubt to the fact that the provision was archaic and discriminatory towards women, that was desired to be changed. The alternative could have been to make the law gender neutral, penalizing the spouse who commits adultery (irrespective of their gender) and with whom they commit adultery; making husband and wife equally responsible to keep their marriage vows with equal respect. Violation by any party should have been made punishable. Obviously, tilting the language was a must. Sometimes, having a deterrent law is important to maintain the standards of the society. Imposing a punishment of merely six months to one year and an amount of fine would have been enough rather than imposing five years of rigorous imprisonment. It was a great opportunity for the Judiciary to lay foundation for family education laws which must be imbibed by our society, especially in todays’ time. Considering the principle of Separation of Power, ideally the Judiciary could have directed the Legislature to amend the provision in such a manner that instead of the provision being discriminatory, it could be gender- neutral law. A draft provision could have been circulated with the Centre and a committee could have been formed to assist the Centre for speedy amendment of the provision.
If a law is made for the people, it should be understood that it is communicated to them well. Communication is not what the communicator has said, but what the receiver has perceived. By looking at the recent Gleeden Statistics, it can be said that people have misunderstood the law and have become more fearless in terms of violating their marriage vows and getting into an extra-marital affair, as they know they will not get penalized for it. The whole judgment overlooked into the institution of marriage in totality. Though the intention of the Judiciary was clear and pure, still I would consider that it was a narrow take of this provision while ignoring the long- term snowball effect on the family as a social foundation.
 About the Author – Ms. Garima Sharma is a Delhi based Lawyer, having expertise in the field of Litigation and Dispute Resolution. Currently, she is working with an Arbitrator, a former Chief Justice of India, enhancing her expertise in the field of Arbitration. During her college times, she had a keen interest in extra-curricular and co-curricular activities and have a few honors to her name; along with it she interned with some very reputable law firms and lawyers which helped her to secure a professional edge
 The Indian Penal Code, 1860, S. 497
“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 case the wife shall not be punishable as an abettor.”
 The Code of Criminal Procedure, 1973, S. 198(2)
“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: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf. “
 42nd Law Commission Report of India, 1971, pp. 323- 327, https://lawcommissionofindia.nic.in/1-50/report42.pdf (last visited on 23.05.2021 at 05:20 PM)
Malimath Committee on Legal Code Reforms, 2003, pp. 190, 290- 291, https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf (last visited on 23.05.2021 at 05:36PM)
 156th Law Commission Report of India, 1997, pp. 358- 359, https://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf (last visited on 23.05.2021 at 05:31 PM)
 The Times of India Newspaper, “Women cannot be punished for adultery”, (published on 25.12.2006) https://timesofindia.indiatimes.com/india/Women-cannot-be-punished-for-adultery/articleshow/925116.cms (last visited on 23.05.2021 at 06:00 PM)
 Joseph Shine v. Union of India, AIR 2018 SC 4898
 Gleeden Press, “Times of India: How infidelity thrives in the age of internet”, https://en.gleeden.com/news/times-of-india-how-infidelity-thrives-in-the-age-of-internet_2128.html (Last visited on 23.05.2021 at 4:35PM).