Adultery: Moral Wrong vs. Legal Wrong

Adultery has long been a subject of debate in Indian society and law, sitting at the intersection of morality, personal relationships, and constitutional rights. Traditionally defined as voluntary sexual intercourse between a married person and someone who is not their spouse, adultery has been condemned as immoral by most cultures and religions. For centuries, Indian law too reflected this moral disapproval, criminalizing adultery under Section 497 of the Indian Penal Code, 1860. The provision treated adultery not merely as a private wrong between spouses but as a legal wrong against the institution of marriage, punishable with imprisonment. However, the persistence of this colonial-era provision and its eventual decriminalization in Joseph Shine v. Union of India (2018) highlight the evolving distinction between adultery as a moral wrong and adultery as a legal wrong.

Under the old Section 497, adultery was a criminal offence committed by a man who engaged in sexual relations with a married woman without the consent of her husband. The law treated the husband as the aggrieved party, ignoring the agency of the wife and reducing her to property. The woman involved was not punishable, being treated as a victim. This patriarchal framework not only violated gender equality but also failed to recognize marriage as a partnership of equals. The provision came under criticism for being discriminatory, arbitrary, and inconsistent with constitutional guarantees of equality and personal liberty.

In Joseph Shine v. Union of India, a five-judge Constitution Bench of the Supreme Court unanimously struck down Section 497 as unconstitutional. The Court held that adultery, while a ground for divorce under personal laws, cannot be criminalized. Chief Justice Dipak Misra observed that criminal law should not intrude into private, consensual relationships between adults. Justice D.Y. Chandrachud emphasized that the law perpetuated gender stereotypes and violated constitutional morality. By decriminalizing adultery, the Court drew a clear line between moral wrongs, which may attract social disapproval, and legal wrongs, which warrant criminal sanction.

The judgment did not, however, legitimize adultery. It continues to be recognized as a civil wrong and a ground for divorce or judicial separation under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and other personal laws. A spouse betrayed by adultery can seek dissolution of marriage, claim custody, or contest maintenance, showing that while adultery is no longer a crime against the State, it remains a breach of the marital contract. This distinction illustrates that the law acknowledges the moral and emotional harm caused by adultery but treats it as a private wrong to be resolved within civil law rather than through criminal punishment.

The debate over adultery also reflects deeper philosophical questions about the role of law in regulating morality. Critics of decriminalization argue that removing the penal sanction weakens the institution of marriage and may encourage infidelity. Supporters counter that marriage must rest on trust and personal choice, not fear of punishment, and that the State has no role in policing consensual relationships between adults. The shift from treating adultery as a legal wrong to recognizing it merely as a moral wrong reflects the judiciary’s emphasis on constitutional morality, individual autonomy, and equality, even when these values conflict with traditional social morality.

In conclusion, adultery in India illustrates the complex relationship between law and morality. It is still widely regarded as a moral wrong that undermines trust and fidelity in marriage, but it is no longer a legal wrong warranting criminal sanction. By decriminalizing adultery, the Supreme Court recognized that the law must not be used as a tool to enforce morality or control personal relationships. Instead, adultery has been rightly placed in the realm of civil law, where its consequences are addressed through matrimonial remedies rather than criminal punishment. This evolution underscores the principle that not all moral wrongs need to be legal wrongs, and in a constitutional democracy, the law must prioritize dignity, equality, and liberty over outdated moral codes.