• LAWGIC STRATUM

Decriminalization of Adultery under the Indian Law

Author: Shriya Bhatkhande


Introduction


The word adultery evolved from the Latin verb adulterium, meaning 'to corrupt’. As per the dictionary definition, a married man commits adultery if he has intercourse with a married woman with whom he has not entered into wedlock. Marriage is solemn in every sense. If adultery is perpetrated, it is the violation of marriage vows taken and faith which is the root of the relationship.[1] Henry VIII of England used it for the first time to get rid of his wife Catherine Howard. Historically, adultery has been examined as a severe offence and even incurred capital punishment.


Section 497 of Indian Penal Code which is enacted in the year 1860 states Adultery as follows, ‘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 a case, the wife shall not be punishable as an abettor. Albeit, the constitutional system of all the countries defines adultery variously, the underlying notion is physical intimacy outside the wedlock with a person who is certainly non-spouse.


Who Challenged the Law?


Formerly, as adultery inhibited the “husband’s exclusive entitlements”, it was held to be the “highest possible invasion of property”, similar to theft. Only the husband of the woman with whom adultery is committed is treated as a victim and only he can file a complaint. Women had no right to file a complaint as they were treated to be a property of the man. The illicit woman was exempted from criminal liability under the prescribed provision under the Indian Penal Code( Section 497 IPC)[2]


Joseph Shine, a 41-year-old Indian businessman living in Italy, solicited the Supreme Court to wipe out the extramarital affair law as obsolete, discriminatory, and unreasonable. His claim was conditional to the bias poised by law at odds with men liable for extra-marital affairs while serving women like objects held in the landmark Judgment Joseph Shine vs Union of India.[3] Indian Penal Code acknowledges a man perpetrating adultery “should be penalized with imprisonment of either description for a term which may extend to either five years, or with fine, or both”.[4] It demanded provision of rights to both gender equality for such crimes. “A couple may part their ways if they cheat. Attaching criminality to disloyalty in marriage is going too far,” the Chief Justice said


Decriminalizing Adultery


The Supreme Court held a milestone judgement in the case of Joseph Shine vs Union of India on September 27, 2018, by knocking off the 158-year old law on adultery from the criminal statute book. Corresponding to adultery is up to the married couple as a topic of their privacy. Marrying does not mean relinquishing freedom. The insight to make bodily preferences is prominent to the liberty of mankind. Every individual should be enabled to take his/her own choices. A woman often has to face oppressive virtues from a society that includes, high expectations, portraying chastity, laying boundaries and limitations. Nonetheless, society doesn’t hold malaise towards sexual assaults, honour killings and gender-identification of the fetus.


The motive following legitimizing the adultery law in IPC was that it lent powers in favour of the husband. A person whose wife participated in a consensual sexual affair with another married man. Although the wife of such a married man has no right to denounce, which is an utter patriarchal inequality. Hence, in Joseph Shine vs. Union of India[5], a five judge-bench namely, Chief Justice of India Dipak Misra, Justice RF Nariman, Justice DY Chandrachud, Justice Indu Malhotra and Justice AM Khanwilkar pronounced the verdict stating the law was arbitrary, illegitimate and obsolete. Justice Chandrachud held, the law maintains the auxiliary dignity of women, refutes sexual autonomy and is based on gender stereotypes. CJI Misra held women should be treated equally to men and husband is not a master of his wife.


Consequences


Commentators expressing views in favour of validating adultery cast it out to be fairly decriminalised. If two individuals participate in a physical relationship unanimously, it is no one’s right to interfere in the matter. How the society perceives this and how appropriate this is in a moral insight should be outside the spectrum of this law. Moreover, there has to be unambiguity between the rights of the person and the rights of the community as a whole. In 1950-55 when the Hindu Code bills and the Dowry Prohibition Acts (1961) were passed, the favoured opinion was that men are the ones who commit crimes and hence women require extra protection as they were vulnerable.[6] But now women are educated, self-sufficient, mindful of their rights and so there is no requirement of this law at the present.


On the contrary, critics find it absolutely important for the smooth functioning of society. It is very much imperative for society because it delivers future generations a stable environment. In order to inhibit rising divorces, it is essential not to encourage adultery.


Although the SC has made amendments in the law considering the fundamental rights of the women, adultery is still persuasive for divorce. Thus, it can be perceived as a justifiable constraint putting forth valid restrictions on sexual autonomy.


Conclusion


Adultery had been intimidated throughout the history of mankind. Until 1976, a petition for divorce on the grounds of adultery could be registered only if the spouse was residing in adultery in India, but now a petition can be filed on the grounds of adultery even if there has been the occurrence of voluntary sexual intercourse outside the marriage. Perhaps, granting equal rights to the married woman to complain in opposition to her spouse who executes adultery, regardless of whether the woman is married or unmarried, would have been one of the solutions. Today the Courts hold on to a mindful outlook of adultery. They bestow debated divorce in India scrutinizing diversified social situations and details of the party undertaking a divorce, covering the bearing of children. Detaining the petition, exclusively when there are children associated is taken delicately. The court has the maturity to administer each case on its pros and cons.


Also, it can be concluded that the constitution should not control whom one should sleep with but somewhat standardize the case of divorce if one of the two partners breach the purity of marriage. Additionally, trust interrupted can neither lead a couple to unite joyously nor it changes the perspective of the society.


References:

[1] https://indiankanoon.org/doc/1833006/ [2] https://indiankanoon.org/doc/1833006/ [3] Joseph Shine Vs The Indian Union, (2019) 3 SCC 39 [4] https://indiankanoon.org/doc/1833006/ [5] Ibid, Footnote No.3 [6] https://indiankanoon.org/doc/1763444/, Dowry Prohibition Act, 1961

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