Re-criminalising Adultery

Re-criminalising Adultery


The Parliamentary Standing Committee on Home Affairs recently proposed the reinstatement of adultery as a criminal offense in India, albeit on gender-neutral grounds, seeking to safeguard the sanctity of marriage. This recommendation comes after a unanimous 2018 Supreme Court decision decriminalized adultery, citing discrimination concerns. The committee contends that the institution of marriage is sacrosanct, while opposition members argue against state intrusion into private lives.


GS-02 (Social Empowerment, Gender)


Adultry, Supreme court judgements

UPSC Mains Question:

Discuss the implications of the Parliamentary Standing Committee’s recommendation to criminalize adultery in a gender-neutral manner on the backdrop of the 2018 Supreme Court decision. (150 words)

Dimensions of the Article:

  • Adultry
  • Supreme Court Ruling on Adultery
  • Committee’s Recommendation
  • Challenges and Dissent


  • It refers to the consensual sexual involvement between a married individual and someone other than their current spouse or partner.
  • Section 497 of the Indian Penal Code (IPC): This section dictates that anyone engaging in sexual relations with the wife of another man, without the explicit consent or connivance of that man, and where the act does not qualify as the offence of rape, is deemed culpable of adultery and is subject to legal consequences.
  • Remarkably, the law does not hold the wife accountable, assuming that only a man can entice a woman into a sexual act. The presumption is that the husband is the one who endures harm due to his wife’s sexual involvement without his consent. Simultaneously, the law does not provide protection to the wife in cases of similar actions by her husband.

Supreme Court Ruling on Adultery:

  • The Supreme Court declared the 158-year-old adultery law as unconstitutional, citing violations of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality). The court emphasized that while individuals may part ways due to infidelity, criminalizing adultery is an excessive intrusion into matters of marital privacy.
  • Furthermore, the court noted the absence of data supporting claims that decriminalizing adultery would lead to disruptions in sexual morality or an increase in divorce rates. Any legal provision impacting individual dignity and women’s equality is considered contrary to the Constitution, challenging the notion that a husband holds mastery over his wife.
  • The court rejected the Doctrine of Coverture, an outdated concept suggesting that a woman loses identity and legal rights upon marriage, deeming it violative of fundamental rights. The ruling emphasized that marriage should not entail the surrender of individual autonomy, asserting that the ability to make sexual choices is crucial to human liberty, even within the private sphere.
  • In addressing cases where an aggrieved spouse might take extreme measures due to their partner’s adulterous relationship, the court recognized the potential for considering it as abetment to suicide if sufficient evidence is presented. The ruling challenged societal expectations imposed on women, highlighting the paradoxical nature of society, which upholds virtuous ideals for women while being complicit in heinous acts like rape, honor killings, and gender-based violence.

Committee’s Recommendation:

  • The 350-page report suggests reinstating adultery as a criminal offense but making it gender-neutral. The rationale emphasizes protecting the sacred institution of marriage and rectifying the past bias of penalizing only married men.
  • Tracing the roots back to Lord Macaulay’s drafting of the IPC, the article explores the oscillation in views on criminalizing adultery. It delves into the 1971 Law Commission’s report, the Malimath Committee’s 2003 proposal for gender-neutral adultery laws, and the subsequent Supreme Court’s 2018 decision.

Challenges and Dissent:

  • Opposition from MPs and legal experts questions the need for criminalizing adultery, arguing for the autonomy of consenting adults.
  • P. Chidambaram’s dissent emphasizes avoiding state interference in private lives and challenges the perception of marriage as a sacrament.
  • The article explores the parliamentary authority to overrule Supreme Court judgments and the need for legislative action to alter the legal basis of the 2018 decision. It cites recent judgments that clarify the conditions under which validating legislation can be passed.

Way Forward:

The future course hinges on a delicate balance between upholding the sanctity of marriage and respecting individual autonomy. Navigating through historical legislative perspectives, judicial decisions, and contemporary recommendations requires a nuanced approach.