Adultery Is No Longer a Crime in India. So, What Does the Law Actually Punish?

This Blog is Written by Nehal Agarwal, 3rd Year, BBA LLB, Delhi Metropolitan Education.

Blog 07 | Edition IX

Introduction

If adultery is no longer a crime in India, does that mean the law no longer recognises adultery's consequences? Adultery has traditionally been seen as a breach of trust, but the legal question goes beyond morality: should the state punish infidelity through criminal law? In Joseph Shine v. Union of India, the Supreme Court struck down Section 497 of the Indian Penal Code (IPC), decriminalising adultery. However, adultery continues to have consequences under law, especially in divorce proceedings. This raises a question: has Indian law struck the right balance between individual autonomy and marital responsibility?

The Law Before Decriminalisation

Before 2018, Section 497 IPC made sexual relationships involving a married woman without her husband's consent or connivance a crime. A man engaging in such a relationship could face imprisonment of up to five years, a fine, or both. However, the woman could not be punished as an accomplice under the provision. The concern was not only the criminalisation of adultery but also the gender inequality built into the law. By making the husband's consent legally important, the provision treated a woman as someone whose sexual autonomy was under the husband's control. Although the law was justified as protecting marriage, its basic assumption was constitutionally problematic. If marriage is a relationship between equals, should one spouse have legal authority over the other's personal autonomy?

Joseph Shine v. Union of India: A Constitutional Turning Point

In 2018, a five-judge Constitution Bench of the Supreme Court unanimously struck down Section 497 IPC as unconstitutional. The Court also invalidated the procedural provision under Section 198(2) of the Code of Criminal Procedure, 1973, insofar as it concerned adultery. The judgment relied on Articles 14, 15 and 21 of the Constitution, which protect equality, prohibit specified forms of discrimination and safeguard personal liberty. The Court rejected the idea that a husband had a proprietary interest in his wife's sexuality. Importantly, the judgment separated moral disapproval from criminal liability. Even if adultery is considered objectionable, it does not automatically mean that adultery should attract imprisonment. The significance of Joseph Shine lies not in endorsing infidelity, but in recognising that protecting marriage cannot justify discriminatory criminal laws. The state cannot preserve an institution by denying constitutional status to the individuals within it.

Under the Present Legal Framework

Decriminalisation does not mean that adultery has become legally irrelevant. The distinction between criminal liability and matrimonial consequences remains essential. The Bharatiya Nyaya Sanhita, 2023, does not contain an offence criminalising adultery. Therefore, consensual adultery between adults is not, by itself, an ordinary criminal offence under India's current general criminal law. Nevertheless, adultery remains a ground for divorce under matrimonial legislation. For instance, Section 13(1)(i) of the Hindu Marriage Act, 1955, permits either spouse to seek divorce where the other has, after solemnisation of the marriage, voluntarily engaged in sexual intercourse with another person. Thus, the law distinguishes between punishing an individual through criminal proceedings and determining whether a marriage should continue. Adultery has been decriminalised; its matrimonial consequences have not disappeared.

Critical Analysis: Has the Law Found the Right Balance?

The decriminalisation of adultery raises a question about individual freedom and marital responsibility. The Supreme Court was justified in rejecting a provision that treated women unequally. However, marriage also involves commitments whose breach may have emotional, financial and social consequences. Criminalising adultery risks bringing relationships into the coercive reach of the state. It may also reinforce the belief that marital fidelity should be enforced through punishment rather than addressed through appropriate matrimonial remedies. From this perspective, Joseph Shine represents a safeguard against excessive state interference in private life. Yet decriminalisation alone cannot resolve the difficulties arising from marital breakdown. A spouse seeking divorce must still establish the legal grounds. Social stigma and unequal economic circumstances may also affect spouses differently, particularly women, despite the constitutional recognition of equality. Privacy presents another concern. Matrimonial disputes may involve messages, call records and other digital evidence. Although such material may be relevant to litigation, its use raises questions about surveillance, dignity and the limits of investigating a spouse's private life. In my view, the law must distinguish between protecting autonomy and determining the consequences of a failed marriage. The state need not criminalise infidelity to recognise its relevance to matrimonial relationships. At the same time, matrimonial remedies must be fair and should not reinforce gender stereotypes or permit unnecessary invasions of privacy. The real challenge is not to decide whether adultery is morally acceptable, but to find out how the law can protect rights while also addressing legitimate matrimonial interests.

Conclusion

The decriminalisation of adultery marked a shift towards equality, dignity and individual autonomy. Joseph Shine established that marriage cannot justify discriminatory treatment or the assumption that one spouse controls the other's sexuality. Nevertheless, adultery still matters under law. The task of the legal system is to recognise both individual freedom and the realities of marital relationships. Rather than criminalising every breach of trust, the law should ensure that the consequences of a broken marriage are handled through fair and constitutionally sound remedies.

(Write to the author at nehalagarwalssss@gmail.com.)