There has always been a contradiction between individual liberty and societal security. This form of tension is obvious in the field of sexual behavior, where it becomes a controversial aspect for reconciling contrasting claims of the individual and security that have thus far been defied. These difficult characteristics have a negative impact on society’s dynamic social equilibrium. As the law is not static and keeps on changing, then in the same concurrent way, the social values also keep on changing with the passage of time. Henceforth, an act that is an offense today, cannot be considered an offense tomorrow. The change in thoughts actually poses constant problems in society. For instance,  adultery has been viewed as an offense against public morality, while on the other hand, modern society has taken a reversible approach to the same.

The legal analysis of adultery portrays that the provisions have been influenced by the social values of sexual ethical quality since the introduction of the legal provision. Adultery jeopardizes the institution of marriage. The law has been 150 years old and has been drafted since the colonial era. The practice of adultery has inflicted a conflict between social pressure and individual struggle, and the offense has been criticized for being gender biased and for violating the basic principle of the Constitution. Due to all these factors, the Supreme Court has decriminalized adultery.

Interpreting Adultery through Historical Perspective

The laws are mostly introduced and enacted in terms of keeping in view the historic references, and the position of that law in the historical era. In the same way, Indian laws and specifically the Indian Penal Code have been derived and enacted in accordance with historical and theological approaches. In particular, the laws on adultery were introduced with the primary intent of preventing women from involving themselves in sexual relations other than with their spouse. The law did not restrict men from having illicit relations, in fact, men were allowed for maintaining sexual relations with any other women, and the practice has been referred to as polygamy. In fact, there have been various Hindu kings and Muslim emperors, who had more than one wife.

Adultery has always been considered a criminal offense in the past centuries, on the basis of which the provision was framed as an offense. History has revealed that sexual relationship stems from the social relations in society. These are the factors that have provided a clear stance on the permission and prohibition of sexual relationships, which is further understood through the concept of ‘sexual morality’. ‘Sexual morality’ has been interpreted as a kind of morality that is required to be maintained, as a basis of ‘marriage institution’, and all the acts of homosexuality, lesbian, extra-marital relations, and incest have been prohibited.

However, the concept of sexual morality has varied interpretations and meanings in different societies, wherein some consider it to be a normal aspect and others have categorized adultery as a criminal offense. Subsequently, if adultery is expounded in terms of human civilization, then also it has been considered a punishable offense that acts as a threat to the marital relationship between the husband and wife. In India, adultery was considered a criminal offense from 2018 until it was decriminalized.

The Socio-Legal Perspective

Adultery was defined under Section 497 of the Indian Penal Code which punished the person in case of the conduct of any extra-marital relationship. Adultery was interpreted as an offense committed by a man against the husband in respect to his married woman, but would not criminalize a man who involves himself in any sexual relations with a married woman, unmarried woman, prostitute, and widowed woman. Adultery was considered an invasion of the right of the husband over his wife. In generalized terms, it is an offense against the sanctity of the matrimonial home and was considered an anti-social and illegal act. The elements which were necessary to be considered for the offense of adultery have been summarised below:

1. There must be an involvement of sexual intercourse with the wife of another man.
2. The person involved in the sexual intercourse must have knowledge or a reason to believe that the woman is married.
3. Such a kind of sexual involvement must be without the consent and connivance of the husband.
4. Sexual intercourse must not amount to the offense of rape. 

The offense of adultery was challenged by the males and the individuals of the society, wherein the men condemned the fact for not punishing the women for the offense of adultery, and on the other hand, women condemned that they have been objectified under the said provision and have not been given the rights for filing a suit of adultery against the other person. 

With the raising concerns and the increase in the filing of cases related to adultery being gender-biased, discriminatory, and unconstitutional, the judiciary again interpreted the definitions and meanings with respect to the offense of adultery. The petitioners in Yusuf Abdul Aziz vs. The State of Bombay argued that Section 497 of the Indian Penal Code was discriminatory and violated Article 14 of the Constitution. According to the petitioners, the legislation is unfair because it does not penalize women who are participating in an adulterous relationship. The Supreme Court ruled that the petitioners’ petitions and the statute of adultery were not in violation of Articles 14, 15, and 21 of the Constitution. The Supreme Court ruled in Sowmithri Vishnu vs. Union of India that a woman cannot be punished for adultery and that unmarried women are not included by Section 497. 

The Judiciary presented their clear stance on adultery being a criminal offense and not being violative of any provisions of the constitution, until the time when the provision was again challenged in the case of  Joseph Shine v Union of India, 2018, when the petitioners filed a writ petition under Article 32 of the Constitution of India, to strike down the laws on adultery being ultra vires and unconstitutional. The petitions contended that Section 497 of the Indian Penal Code, 1857 and Section 198(2) of the Criminal Procedure Code were the provisions that have not been introduced in compliance with Article 14, Article 15, and Article 21 of the Constitution of India. Further, the court considered the petition filed by the petitioners and opined that:

1. Section 497 has been enacted arbitrarily, which makes the provision subjective as it accords the ‘proprietary rights’ of the husband over his wife and also does not allow the woman to file a suit against the offense.
2. Secondly, the court stated that women cannot be held captive of the societal norms and function of social behavior.
3. Thirdly, men are not under any right for claiming authority over women, and women must be treated equally, thereby violating the provisions of Article 14 and Article 15 of the Constitution. 
4. Fourthly, the offense acts as a violation of Article 21 of the Constitution, in a way that women have to be treated equally and to be allowed to live with dignity in society.

Henceforth, the court considered the offense discriminatory and ultra vires and subsequently decriminalized adultery.

Adultery and Feminism

Adultery has been defined as sexual activity with full consent and voluntarily of a married person, but other than the spouse. However, the legal definitions of adultery vary and are different from one country to the other. It has been defined as a criminal offense in various countries and also with respect to certain theological approaches. However, the laws on adultery accuse a man of being guilty of adultery if he is engaged with the wife of another man in sexual intercourse but has not directed a stand on the view that if a woman, he is involved with sexually is unmarried, divorced, or widowed.

Subsequently, the law has also stated that the men who are married also cannot be held guilty for adultery, if the woman they are involved with is not married. These laws on adultery are not gender-neutral as they seem to portray men as the strong foundational pillars of society. The concept has been adopted from a patriarchal belief, wherein the women have been treated under the ownership of their husbands. The interpretation of Section 497 appears to be a law in favor of women as it punishes the man and not the woman, even if the woman has consented to sexual intercourse outside marriage.

The case is not so, the law actually portrays women as property and is subject to objectification. In generalized terms, it can be stated if the wife has any sexual relations outside marriage, then the offense of adultery would be committed, but on the contrary, if the husband has any extramarital relations outside marriage, on the fact that the women are unmarried, divorced and widowed, then the offense of adultery would not be committed. The law in itself had backlogs, and the laws were against women, wherein they were presumed to be the property of men. Henceforth, the decriminalization of adultery by the Supreme Court gave a very modern view and as per the constitution mandates that women are not chattels and occupy an equal position to that man in society.

Adultery through the Human Rights Perspective

The efforts for decriminalizing the offense of adultery were raised until the offense was actually decriminalized. It was a modern trend for decriminalizing it, but historically, the cultures have expressed their dissent opinion for punishing the person committing adultery. Therefore, in the present contemporary 21st century, criminal laws against adultery have been faced with controversies all around the world, as they do not act in compliance with international conventions and rules. The offence has been considered a gender-biased law and it acts as discrimination against the rights of women. Therefore, the United Nations Working Group on Discrimination has expressed their opinion that the laws have been directed against women and have stated that the offense is discriminatory, and ultra vires and thus should not be considered as one or must be repealed so that gender equality prevails.

Conclusion

Henceforth, it can be concluded by stating that the offense of adultery had a very narrow interpretation in the penal laws of India as it led to absurdity. The provision of adultery in the Indian Penal Code was not only old-fashioned but also had illogical outcomes. The amendment of the provision of adultery under Section 497 has been embraced as a landmark judgment as the Supreme Court has struck down hundred-year-old laws being unconstitutional and gender-biased.

However, the controversy is around the interpretation of the word ‘adultery’, and in a justified way is an offense against one’s spouse, breach of trust, and house. However, on the contrary, the law has not provided punishment to the adulterer’s husband or an adulteress’s wife but has prescribed punishment to the third party involved in the offense and has only limited its punishment to the third party being a male offender. The decriminalization of the offence of adultery has received an appraisal but the law needs an amendment, and it is the responsibility of the judiciary to interpret the laws in accordance with every social and legal panorama. The provision should be amended by keeping in compliance with every aspect of the law being constitutional, or in terms of female dignity.