ADULTERY IN INDIA
Adultery comes from the Latin word ‘Adulterium’ which essentially means consensual sexual intercourse between a married person and a person who is not the spouse of the former. Adultery is extramarital sex. Adultery is viewed as offensive on social, religious, moral, or legal grounds. Though what sexual activities constitute adultery varies, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Islam, and Judaism.  A solitary demonstration of sex is for the most part adequate to establish adultery, and all the long-term sexual relationship is now and again alluded to as an undertaking.
1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man’s wife was “the highest invasion of property” and claimed, in regard to the aggrieved husband, that “a man cannot receive a higher provocation” (in a case of murder or manslaughter). 
Historically speaking, many religions and societies have viewed adultery as a heinous crime. Adultery often demands severe punishment ranging from fine, capital punishment and even mutilation.
Adultery is considered as a criminal offence is many countries. Most nations that criminalize adultery are those where the predominant religion is Islam, and a few Sub-Saharan African Christian-greater part nations, yet there are some remarkable special cases to this administer, to be specific Philippines, Taiwan, and a few U.S. states. In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning.  There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia.  In some societies the law punishes the “intruder”, rather than the adulterous spouse. For example, Article 266 of the Penal Code of South Sudan states, “Whoever, has consensual sexual intercourse with a man or woman who is and whom he or she has reason to believe to be the spouse of another person, commits the offence of adultery […]”. 
Adultery in India was considered as a criminal offence under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code states “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 offense of rape, is guilty of the offense 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.”
This section has several loopholes,
- One being, the married woman won’t be viewed as an ‘abettor’ of the offense which implies that the lady won’t be held at risk for the demonstration of adultery-just the man engaged with the demonstration will be held criminally at risk under the area.
- Second, the law does not apply in a situation where an unmarried lady engages in sexual relations with a married man.
- Third and the last point being, the act isn’t respected to be an offense or can be ‘cured’ of its culpability if the spouse of the married lady consents to her having sex with another man.
Moreover, Section 198 of the Code of Criminal Procedure gives only the husband the right to file a case against the man involved in the act of adultery.  Thus, this section simply strengthens the obsolete reasoning and sexual generalization that a lady ‘belongs’ to a man and can’t have her own considerations or suppositions; this, regardless of whether she had voluntarily agreed to the act of intercourse.
Attempts were made to strike down this discriminatory, colonial-era law.
Joseph Shine, an Indian hotelier based in Italy, filed a public interest litigation which challenges the constitution validity of Section 497 of the IPC, in 2017. When asked about the reason for filing the petition, Shine said, “They (married women) might have willingly participated, but it will be the men who suffer (when the husband files a complaint). Something like this (an adultery complaint) will make a man feel isolated. He might not be able to cope with it. This (abolishment of adultery) is a basic step, it can create further changes,”
The petition was being heard by a Five-Judge Constitution Bench of the Supreme Court. Senior Counsel Meenakshi Arora and Advocates Kaleeswaram Raj and Sunil Fernandes appeared on behalf of the petitioners, while the Centre was represented by ASG Pinky Anand.
The petition claimed that while criminal law is supposed to be neutral, Section 497 is prejudiced against men.
This has been tested as an attack against individual dignity. Another issue raised in the court is whether it was appropriate to criminalize a consensual act performed by two grown-ups, regardless of whether the act isn’t as per the customary morality.
On the last day of hearing, Additional Solicitor General Pinky Anand presented that adultery is public issue which injures or causes hurt and thus, it contains the components of a criminal offence.
Petitioners put forth the steps taken by international authorities to decriminalize adultery, the ASG countered their point by saying, “we are in India. We must go by the lateral principles laid down by Your Lordships”
One of the judges of the five-judge constitution bench, Justice Malhotra said, “It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.
The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law, observed Justice Chandrachud.
CJI Misra, writing for himself and Justice AM Khanwilkar, ruled, “We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.” 
CJI Misra opined that Section 497, gives license to husband to deal with wife as he pleases.
After hearing both the sides, the court reserved the judgement on 27 September, 2018. The judgement held Section 497 to be “unconstitutional, archaic and manifestly arbitrary” and therefore struck down the 158-year-old law.
The striking down of Section 497 of IPC was criticised by various individuals including the chairperson of the Delhi Commission for Woman, Swati Maliwal who said the decision is giving an “open licence” to cheating among men.
The judgement has invited both criticism and praises.
Adultery has been decriminalized but it is still a valid ground for divorce.
Second Marriage in India without Divorce
Under criminal law, second marriage is prohibited. Section 494 of the Indian Penal Code reads, “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Second marriage without divorce is also an offence under the Hindu Marriage Act, 1955.
Section 17 of the Hindu Marriage Act reads, “Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.”
However, second marriage or bigamy in India is legal under the Muslim Personal Law (Shariat) Application Act of 1937. This act governs the Muslims living in India. Muslim males can have up to 4 wives.
But, on 10 February 2015, the Supreme Court of India in a judgement ruled that polygamy was not an integral part of Islam. Justice TK Thakur and Justice AK Goel stated, “What was protected under Article 25 (right to practice and propagate any religion) was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25.”
The social disgrace connected with being a second spouse, the nonappearance of any lawful status to the relationship, and the gigantic torment of being swindled into the marriage are without a doubt to a great degree discouraging for a lady. Despite the fact that there is no acknowledgment allowed to a second spouse, because of the legal translation of existing law as talked about above, she may have a few odds of getting maintenance. Without any clear arrangements under the law, her odds of asserting her rights are to a great extent subject to the prudence of the judges.
Indeed, even under the criminal law, it is difficult to prove bigamy, as the marriage must be validly performed to prove the offense of bigamy. Generally, these loopholes in the law are misused by men to guard themselves in such cases.
Given this foundation of contrasting legal precedents, law makers should clarify arrangements to ensure the privileges of those ladies who have been tricked into ‘second relational unions’ in order to present to them some reprieve.
2 Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter ( NYU Press 2000 )
3 “Punishment for Adultery in Islam” <http://www.religioustolerance.org/isl_adul2.htm> accessed 27 September 2018
4 “Women Around the World Are Being Stoned to Death. Do You Know the Facts?” <https://mic.com/articles/68431/women-around-the-world-are-being-stoned-to-death-do-you-know-the-facts#.IBZ5GExPJ>
5 “The Penal Code Act, 2008” <http://www.wipo.int/edocs/lexdocs/laws/en/ss/ss014en.pdf> accessed 27 September 2018
6 “The law on adultery is asymmetric” <https://www.hindustantimes.com/opinion/the-law-on-adultery-is-asymmetric/story-yXFyddEL9RrYQDkY1NNY2K.html> accessed 27 September 2018
7 “There Cannot Be Patriarchal Monarchy Over Daughter Or Husband’s Monarchy Over Wife: CJI Misra In Adultery Judgment” <https://www.livelaw.in/there-cannot-be-patriarchal-monarchy-over-daughter-or-husbands-monarchy-over-wife-cji-misra-in-adultery-judgment-read-judgment/> accessed 27 September 2018