Decriminalization of Adultery in India by Bishal Basak @LexCliq.com

ABSTRACT:

The decisions to criminalize or decriminalize in India do not seem to be based on the traditional principles in the monarchy of illegitimate jurisprudence. It consequently leads to a lot of perplexity and most discussion within this regard remain leaped around personal opinions and speculations. In order to examine the postulation, this article focusses on the resourcefulness of the Supreme Court to decriminalize adultery in unquestionable terms. It forces one to reconsider the beliefs surrounding sexual singularity as the wicked nature associated with adultery mainly arises from deleteriously traditional ideas of treachery. But in today’s world, adultery executed freely, with the consent of all troubled, stands on dissimilar footing.

The provision of Adultery as defined under S.497 of the IPC seeks to punish only men for adultery and treats women involved in the crime as victims and defines the offence of Adultery and creates a criminal sanction against a man from having sexual intercourse with someone else’s wife without her husband’s consent. This provision which seeks to morally police the personal marital decisions of the people has continued without any progressive amendments since it was first drafted by Macaulay in 1860. It has long remained under the scanner and efforts have been made for its reconsideration.

Keywords: Adultery, efforts

INTRODUCTION:

Supreme Court of India proclaimed 158-year-old adultery law as unconstitutional. The term “Adultery” is procured from a Latin word ‘Adulterium’ which means sexual relations with a person other than one’s own spouse. In general, adultery means bilateral sexual relation with the wife of another man. The act which pampers in any type of bilateral intimate relationship between a married person and a person who is not their spouse is known as adultery. The five-bench judge of Supreme Court of India struck down the section 497 of Indian Penal Code, 1860 along with 198(2) of the Criminal Procedure Code, 1973 as unconstitutional. Section 497 of the Indian Penal Code,1860 dealt with adultery and Section 198 of the Criminal Procedure Code, 1973 deals with litigation for wrongdoing against marriage. The adultery law which existed in India presumed the status of women as one consolidated with that of a man. The law punished a man who was guilty of perpetrating adultery with a married woman, whereas the vice-versa was not applicable to women. It presumed women to be innocent victims, and hence they were not punishable for the offence of adultery. She had no independent existence in the eyes of law and was regarded as the property of her husband. The law was justified on the basis that marriage is a pristine institution that a sacred man has supposedly breached and hence, only him who was punishable. The findings of Adultery law date back to the code of Hammurabi, in which adultery was embraced in the seventh commandment. Adultery is an extramarital affair that is considered to be wrong on social, moral, religious and legal grounds. It was used by Henry VIII of England in order to get rid of his wife Catherine Howard. Contrary to its current existence, it had a wider application in the history, and this can be said because, it applied only to commission of adultery between a man, either married or unmarried and a married woman, but also between a married man and an unmarried woman. The onus of adultery was consideration of marriage as a holy institution and punishment for the breach of the same. Historically many cultures have considered adultery as a serious offence, and thus it even incurred severe punishments which were capital punishment, mutilation, torture etc.

Under section 497 of the Indian Penal Code, 1860 woman was not considered even as an confederate and probably the reason behind not punishing the woman was that benevolent view point of observing the woman as she is the possession of the husband and also there was no remedy accessible  to the wife if her husband commits adultery because this section (section 497 of the Indian Penal Code, 1860) only talks about punishing the other man who has intimate relationship with his wife, only one remedy is available to the wife that is divorce. In the case of Yusuf Abdul Aziz v/s. State of Bombay, 1954, it was held that section 497 of the Indian Penal Code, 1860 is valid and the categorization is given on the basis of gender is reasonable and also State can make specific provision for women and children under article 15(3) of the Constitution of India and that is why it is not void.

ESSENTIAL INGREDIENTS OF SECTION 497 OF THE INDIAN PENAL CODE, 1860:

  • Person must commit sexual intercourse with the wife of another man;
  • The person must have knowledge or has reason to believe that the woman is another man’s wife;
  • Husband has not given consent or connivance for sexual intercourse;
  • Such sexual intercourse not amount to offence of rape;
  • Woman’s consent or willingness is not excuse to the crime of adultery.

Note – According to section 198 of the Criminal Procedure Code, 1973, no Court shall take notice of the offence (adultery) under this section other than a complaint made by the husband of the woman or in truancy of husband if another person who had custody of such woman on the behalf of the husband, then such person is made to leave of the court if the adultery was initiated at that time.

LEGISLATIVE INTENT ON ADULTERY:

According to Section-497 of Indian Penal Code formerly punished Considering adultery as a criminal wrong. Moreover, the legislative intention behind the ratifying of Section 497 of IPC is quite distinguished from the one which is discerned by the detractor. The Law Commission of India was given the authority of amending the Penal Code in 1847. At the time of amending the penal code, the committee contributed only men liable for the offence of adultery and this was done keeping in mind the situation of women at that point of time and obligation was cast on the law to protect the interest of women. The detractors on the other hand, argue that 497 of IPC tries to utter and intercede in the lives of two sanctioning adults and it leads to neglect or supervise the fact of how adultery devastate the life of other individuals. The people vocalizing their belief in support of legitimizing adultery in India are the ones who define morality should be based on individuals’ whims and fancies.

ADULTERY IS USED AS GROUND FOR DIVORCE:

According to marital law, adultery has acknowledged the significance and adultery in its rational ground for acquiring divorce which means if one party executes adultery then it is adequate ground for applying for divorce. Adulterous correspondence is initiated when a person commits sexual relations with the spouse of other which means two individual commits intimate relationships who are not married to each other. Since it is discretionary relationship so it can also be stated as eluding or an extra marital affair. In marriage, morality plays a very essential role which means both husband and wife shall be faithful to each other but when one partner initiates adulterous bonding with other person then it means who initiates relationship with other is not faithful towards his/her spouse.

After divorce, existence becomes more tough so before applying for acquiring divorce one must think of outcome after receiving divorce and existence after getting divorce. In country like India divorce is still not undertaken by the family of the person which means it still carries social imputation and if the woman is divorced by her husband, then the life of woman is more critical compared to her husband. In India, most of the woman is not able to survive herself financially. If the separating couple has kids, then the kids are the one who suffers the most so it is better to pardon their spouse other than hauling him/her in court if the one who perpetrates adultery faces the other partner.

NEED FOR AMENDMENT:

The fact that section 497 of IPC subsists with countless obscurities is very much apparent with all the contentions and debates adjoining it, and hence there is a substantial need to bring changes in the law relating to adultery in India.

  • In order to give propositions for making amendments in the law relating to adultery in India, it becomes important for one to scrutinize the clarity of the law of adultery. The very second phase of section 497 of IPC alludes the phrase ‘wife of another man’, from this it is evident that it is gender bigotry as it gives out the idea that a married man having intimate relations with an unmarried woman will not be liable of adultery.
  • With the involvement of offence of adultery under the segment entitled as ‘offences related to marriage’, it indicates at the feature that the sacredness of marriage is not the one to be maintained by one spouse but it is a aggregate responsibility of both of them. But the dialect of the section distinguishes between husband and wife as consort to marriage as ‘husband of another woman’ that is a female partner in adultery is not liable for perpetrating the offence.
  • In recent times where the courts have come up with landmark judgments and discussions on topics like that conjugate relations and have also gone ahead in protecting the rights of a woman in live-in relations, and the recent judgement on homosexuality has gone ahead in this field and legitimized the homoerotic acts of two consenting adults. There was even a need for the legislature to come up with a more persuasive definition on the laws on adultery.

D-ECRIMINALIZING ADULTERY

It was on September 28, 2018, that the appellate court concertedly knocked down Section 497 of IPC which relates to adultery. The bench consists of the then Chief Justice Deepak Mishra, Justice Nariman, Justice Chandrachud and Justice Malhotra. The 158-year-old law of primitive era was turned down by the court which it said treated a woman as the property of a man. It was the second provincial law which was struck down by the Supreme Court in the span of a month. It had previously reversed another 157-year-old colonial law which criminalized gay sex in India.

Case Analysis: Joseph Shine vs. Union of India

Facts:

Joseph Shine filed a writ petition under Article 32 countering the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and 21. This was foremost PIL filed against adultery. The provision for adultery to be arbitrary discriminates on the basis of gender as claimed by the petitioner. The petitioner claimed that the morality of a woman is demolished by such a law. The fundamental bench of 5 judges was set up to hear the petition.

Issues raised:

  1. If the provision for adultery is whimsical and distinguished under Article 14?
  2. Whether the provision for adultery inspires the pigeon hole of women being the possession of men and prejudices on gender basis under Article15?
  3. If the morality of a woman is disrupted by denial of her sexual legitimacy and right to self-determination?
  4. Whether adultery is intrusion by law in the private monarchy of a person?

Judgement:

The court in its judgement to this case struck down Section 497 of the IPC and held that this Section is violative of Articles 14, 15 and 21 and declared it illicit. Court also held that Section 198(2) of the Cr.P.C. is also felonious to the extent it is pertinent to Section 497 of IPC. Thus, court here overruled all the proceeding judgements passed in this matter.

  • The court in statement said that every individual has full legitimacy to make conclusions regarding their sensual life.
  • If any misdeed has criminal consent, it should be a public wrong, but in adultery cases the misdeeds are appraised as private wrong. The right to nobility furnishes that those punishments should be permitted only when urgently needed and a proper survey should be done before deciding it.
  • A woman cannot be treated as a chattel or some property by anybody.
  • This law is prehistoric and has been generated at an interval when there was no constitution and thus, in those times the legitimacy not even a question nut now in current times such paternal laws do not hold any importance.
  • Though the act of sexual cuckoldry is virtuously wrong but it does not give adequate circumstances to criminalize the same. The distress principle contains 3 elements which are -1) injury 2) criminality 3) public ingredient. All of these components are needed to be proved to categorize a unlawful act as a criminal offence.

Thus, on above lines the Appellate Court in its judgement stated that the law is quite prejudiced and is not in accordance with the modern times and hence declared as null. Thus, adultery as a felony has terminated and now it can only be used as an excuse for annulment but its perpetrators can’t be punished.

Note: The Supreme Court knocked out Section 497 of the IPC with the rationale that it violated Articles 14, 15 and 21 of the Constitution. The five Judge Bench without exception, in four coexisting judgments, held that the law was obsolete, whimsical and authoritarian, and infringed upon a woman’s legitimacy, nobility, and secrecy. Section 198(2) of the Cr.P.C. which authorized only a husband to bring a lawsuit under Section 497 of the IPC was also struck laid out as unconstitutional. This decision reversed the Court’s previous decisions in Yusuf Abdul Aziz vs. State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India ((1985) Supp SCC 137) and Vishnu Revathi vs. Union of India ((1988) 2 SCC 72) where the constitutional soundness of Section 497 was upheld.

CONCLUSION:

 A landmark step in the Indian legal history had been taken while proclaiming that law to be unconstitutional. The supreme court congruously acknowledged the principles of equality and women’s nobility. And once again by this judgement it has tried to upgrade the circumstances of women in a male influenced society. It clearly shows a pragmatic sign and it is a way leading towards women delegation. This judgement addresses the idea of emancipatory justice. Though the judgement is a developing one but it absolutely sways out the crime of adultery from our laws and hence defending the rights of a spouse in a marriage quite at risk and it by some means enervates the institution of marriage by giving absolute freedom by nullifying adultery. Thus, this law is censured on the records of its ethnic impact. Thus, this case gives a vague ending to the concept of adultery. So, we can see that this story does not end here with this case, in the future when certain promulgated situation will emerge and people will arrive at the apex court for justice and proper explanation, then it would be fascinating to know what stands our judiciary will take. For now, we have to keep gratified with what we have got from this case and have to leave the rest for the future.

REFERENCES:

Books Referred:

  • D. Gaur, Commentary on Indian Penal Code, Second Edition, Universal Law Publishing Co.
  • Ratanlal & Dhirajlal, Justice K.T. Thomas and Advocate M.A. Thomas, Vol II. The Indian Penal Code, 33rd Edition
  • SC Sarkar, Indian Penal Code, 2014, Dwivedi Law Agency Allahabad

Articles Referred:

  • Alyssa Miller, “Punishing Passion: A Comparative Analysis of Adultery Laws in the United States of America and Taiwan and their Effects on Women Alyssa Miller”, Fordham International Law Journal Volume 41, Issue 2 Article 4, pg. 425-470
  • Anna Duff, “What is adultery, is it the same as cheating, is it illegal in the UK and is it grounds for divorce?” The Sun (18th September 2018)

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