Legal Pad

On Indian adultery laws

Indian legal system has often been hailed for its progressive and detailed stance on various issues. Yet the IPC has not been able to shed the absurd set of laws that have been criticized for a long time. Examples? Again the last sentence of this article makes a comment about gender bias in our law without giving any examples.

Specifically, I would like to discuss the laws on Adultery.

Adultery has been defined in the Indian penal code as the “voluntary sexual intercourse between a married person and a person who is not their spouse.”

The primary law that deals with Adultery is Section 497 of the Indian Penal Code. It says:

“497. Adultery — 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.”

Adultery law the world over has had interesting historical roots and is a criminal offense in numerous countries, with punishments ranging from small fines to even death penalty in some countries. The roots of these laws can be traced to one of the earliest law codes known, the Code of Ur-Nammu (ca. 1900-1700 BC). Verse 6 of the Code states that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male’, and verse 7 states, ‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’ And this has been a recurring theme in every law that follows.

The liability and level of criminality of the offense in the eyes of the law has gone through myriad changes throughout history. In the current laws around the world though, the Indian version holds a unique stance check that deserves a special level of contempt. Though Adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law in its current form criminalizes only one form of adultery. It is illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent / connivance of the husband of the woman for the sexual activity. It is not easy to establish connivance or consent. The court seem to be taking subjective stances when it comes to what amounts to establishing connivance. For example, in the case of Bharatlal vs Top Singh, a trial court had sentenced Top Singh to RI for 1 year and fined for Rs. 700 for the crime of having an extramarital sexual relationship with Bharatlal’s wife. Top Singh appealed to a sessions court and argued that there was a delay in the process filing a complaint by Bharatlal and that he had proved that Bharatlal had connived to the extramarital relationship. The court subsequently acquitted him of all charges. Yet, later the High court of Madhya Pradesh again reversed the decision stating that connivance was not proven. And in the judgement, the judge, D.P.S. Chauhan, J. argues that “The consent or connivance is to be proved and is not to be pleaded as complaint is not to be treated as a plaint.” Reading through the judgement, one might assume that unless connivance is explicitly established, the default assumption in the views of the law would be that there was no connivance.

The consent of the man is given legal sanction as against the consent of the woman who takes part in the sexual act. The woman is denied of any agency. And, only the man who had sex with the married woman can be punished and the woman is not punished for adultery. If adultery is a crime where obviously two parties are involved, what is the rationale behind not punishing the woman? Probably a patriarchal perspective of seeing the woman as infantile and incapable of making a decision about her sexual behaviour. Or she is a property owned by her husband; a property that has been tampered with.

While attempting to understand the reason why such an absurd law exists, one must understand how the law sees marital relationships and women in general. Marriage as a patriarchal institution and, has and is seen as a way to establish social and personal control over a woman. Adulteration is a term that describes any form of mixing of impurity. For example, mixing water in milk is adulteration of milk. Similarly, marriage as an institution is a way of establishing blood-line purity for the husband. In terms or casteist purity, religious purity or anything else the husband might think about. This ensures that the property wielding male passes on property to his heirs. Adultery though, would mean that this lineage would be affected and the external male ‘adulterates’ his blood line by having sexual intercourse with his wife and the husband would be burdened with the ‘blood of another man’. This is why intercourse with the consent of the husband is not criminalized as the husband clearly knows the lineage involved.

Basically the woman has been reduced to the mere status of a vessel, or a child bearing machine. This is reinforced by the Section 198 of the CrPC. It states “198. Prosecution for offences against marriage. — (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence:” And as the grieved party can only be the husband, a husband can initiate proceedings against the ‘external adulteror’ and the criminal proceedings go the same way. This is just a differently worded trespassing law that establishes the wife as the property of the husband. The wife does not have any significant role in the outcome of the case.

It must be understood that the law in no way protects ‘the sanctity of marriage’. This is because the husband may wilfully have any number of extramarital sexual relationships with any number of women, and the wife cannot initiate any action against the husband under this law. This is because the husband’s blood-line which the law seeks to protect is not affected in such relationships and thus has not been ‘adulterated’.

Thus the woman is deemed to be a hapless victim and incapable of making decisions with her own body, and thus is exempt from being prosecuted. This view is re-affirmed by the next code in series Section 498:

Section-498 – Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

Thus, the following points can be noted about these laws that work together

  • A wife cannot prosecute her husband or her husband’s lover for adultery. But a husband can prosecute his wife’s lover. (A wife cannot be considered a grieved party)
  • If the husband has an affair with an unmarried (or divorced, or widowed) woman, no one can initiate any action against anyone.
  • If the husband has an affair with a married woman, only the husband of the other woman can initiate action.
  • Only a man can be a seducer and women are powerless victims.

These sections were of course challenged in the court multiple times and in a notable case, V. Revathi v. Union of India, the constitutionality of the section was questioned.

Thakkar, J. of the Apex Court made the following observation:

“The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. … There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”

Thus the observation states that equality exists in the sense that women cannot be punished and in return external men alone can be punished. It is interesting to note that the observation failed to note that an external woman too can ‘break into a matrimonial home’. To be convinced by such arguments, one must subscribe to extremely gender discriminatory, patriarchal and male chauvinistic positions.

Regardless of whether you consider yourself to be a feminist or a men’s right activist, it is clear that this law must go. One might question the entire necessity of, and the reasoning behind criminalizing consensual relationships between adults (most European countries have decriminalized laws on Adultery). When the law has been repeatedly found to be in favour of controlling women’s sexuality and their ability to take decisions, as evidenced by the fact that marital rape is still legal, and that consensual relationships (as in this case) or between minors is illegal, this isn’t surprising.

Most developed countries hold adultery as a ground for divorce and do not criminalize the act (and this holds for the husband and the wife). In every angle though, the IPC’s section 497 and section 498 seems to target the protection of the Husband’s property rights and nothing else. The pervasiveness of patriarchy and gender inequality that has entrenched deeply into the roots of our Indian Penal Code stands directly against the constitution (Article 14 & 15) and has no relevance in the modern context. It would not be enough if this section is amended. We need a large scale systematic clean-up of our laws to rid it of its gender biased elements.


  1. Section 497 of the IPC –
  2. Code of Ur-Nammu
  3. Bharatlal vs Top Singh –
  4. Section 198 of the CrPC
  5. Section 498 of the IPC
  6. V. Revathi v. Union of India

About the author

Soorya Sriram


  • Good article by Sri Surya Sriram. Looks at all the angles of the law and its irrelevance. Marriage is a civil contract between two adults and as such any breach of this contract should be seen as a civil litigation involving monetary and other compensations. a relation between two consenting adults cannot be a crime and if it so more than 50% of the population should be behind bars by now. And how can we expect a person not fall in love for the second time or third time etc. How can the first love is correct and second and subsequent love are not. A second or third love can be as beautiful as wonderful as sacred as the first one ….because if it is not so it should not have happened in the first place. Marriage by itself is against the nature and against existence because man is always capable of loving —- all human beings are capable of loving again and again. I don’t see any relation out of marriage as an extra marital affair , it is only a relation beyond marriage ,not an affair. the concept of marriage has made the life of human being very monotonous dull boring and a drag. What remains of love and romance after 2-3 years of marriage is all we know. There is need to revisit the institution of marriage to accommodate the very nature of human being and beauty and happiness of life. I always wonder whether a man or a woman is not capable of loving more than one.

    • There is nothing even remotely sane about this law that it would make sense to ask for amendment. As suggested in the article itself, amendment wont be enough. Any attempt at it would leave still leave adultery as some sort of a crime the law needs to validate and punish. It takes extraordinarily wrecked minds to create a law that can be thoroughly biased to either of the genders depending upon the circumstances of the case. And it doesn’t require someone to be any sort of activist (feminist or MRA), just a pint of common sense to want to trash the law entirely.

      Divorce is not illegal because people should have the right to revise their decisions, irrespective of the social, personal and economic mess it might create. Adultery only gets begets divorce when at least one of the partners is unhappy with breach of monogamous relationship to the point where he/she rather discontinue the marriage. When divorce could also be sought for sexual dissatisfaction or abuse, how does it make adultery so much more worse in the eyes of the law? Would they punish a spouse for not being there in sickness as much as in health? Why is it the business of a court if you realise that you married the wrong person? Why should the court compensate you if your spouse has sex with someone else when it wont compensate you when your spouse abandons you when you are sick or broke? These marital mishaps should only have legal bearing after the marriage is broken, for divorce settlements and child custody.

    • Totally agree on this one.There should be punishment for the woman as well. What if the woman’s husband has no problems with her relationship with her paramour (Who is married and has children). Very Unfair to that paramour’s wife (married woman and her children). Why can’t she initate legal proceedings of adultery?

    • Yes, it is gross to punish the man or the woman. Most modern states stay away from such moral overseer role and not give any punitive damages. If the man or woman spends common property on in the affair of course the affected spouse should be granted monetary compensation. Time for India to leave behind medieval mindsets.

  • If both man and woman can be punished, who is going to lodge the case ? It would effectively nullify the law. Understand the reality of adultery in India. A woman known to have committed adultery could be abandoned by her relatives and friends. In a recent case, a woman attempted suicide because she could not face the world once this came out, while the man continues to live an easy life. Without a law, the woman suffers. If the law makes both man and woman punishable, who do you think would file the case ? If only the law makes man responsible, there could be justice.

  • Great article Sir!
    I would like to ask permission to use some facts that you have stated above in my reference list for an article. Kindly email me.
    Thank you.

  • Nice comments.I am totally agree with that.if two adult people think they want to do sex each other then why it’s should be counted as a illegal think.ya should be ground of divorce.but it’s not a crime.

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