“Infants have their infancy; adults, adultery.”-
David P. Barash.
Adultery shows the conflict between social pressure and the personal struggle for happiness. Adulterers have always been affected by society’s disapproval of them. In India, adultery is criminalized under Article 497 of the IPC. According to Indian criminal law, the crime of adultery only targets “outsiders” who violate the sanctity of marriage and family when the outsider is male. Therefore, this amounts to gender discrimination in law. We believe that the continuity of this law today requires extensive reforms and amendments.
Adultery has different views on different aspects of the law. However, as far as family law is concerned, adultery simply means that a married man or woman has sex with another person of opposite sex other than his spouse during the marriage.
Adultery is derived from a French word, about that has evolved from the Latin verb, “adulterium”, means to corrupt. Adultery is defined as the consensual extramarital sexual relationship that is considered objectionable on social, religious and, moral and earlier on the legal grounds as well.
In spite of the fact that adultery is decriminalized, it actually exists as a delinquent act as it violates social norms which an individual are accepted to be followed.
Since the most recent 158 years, it was treated as a crime but after the decision of Hon’ble Supreme Court in Joseph Shine v. Association of India, adultery is decriminalized and remained merely a civil wrong rather criminal offense. There were two significant disputes for the decriminalization of adultery. They were:-
This part provided husbands with the right to prosecute their wives’ adulterer while wives were deprived to complain against the adulteress of their husbands.
The section was ignorant on the matter of the adulterous act of the husband.
ADULTERY ACCORDING TO LAW-
In India, Section 497 of Indian Penal code (IPC) 1860, defined adultery as: -“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”.
In the year of 2018, section 497 of Indian Penal Code was stuck down by the Supreme Court in case of Joseph Shine v. Union of India The judgment by a five-judge Supreme Court bench headed by Chief Justice Dipak Misra has overturned the previous three rulings on the matter.
Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter’s wife.
The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory.
Section 497 reads: “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.”
Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband was found to be in an adulterous relationship.
In the case it was held that criminalization had restricted the following rights of women:-
Right to sexual autonomy as provided under Article 21(Right to life) of the constitution.
Right to sexual expression as provided under Article 19(Right to freedom) of the constitution.
Right to equality as provided under Article 14(Right to equality) of the constitution.
Right against discrimination as provided under Article 15(Right against discrimination) of the constitution.
Interference of state in personal matters of an individual. However, this applies for both men as well as women.
JUDGEMENT GIVEN BY SUPEREME COURTS ON ADULTERY ARE-
The adultery law first came under challenge in 1951 in the Yusuf Aziz v. State of Bombay case. Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.
The dominant argument in the court hearing was that Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship. It was also argued that adultery law gave a license to women to commit the crime.
Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.
Moreover, in an interesting observation, the Supreme Court said in the judgment that “it is commonly accepted that it is the man who is the seducer, and not the woman.” The Supreme Court stated that women could only be a victim of adultery and not a perpetrator of the crime under Section 497.
The argument was made to reject the contention that the adultery law was discriminatory against men. However, despite declaring women as “victim only” in the occurrence of the crime of adultery, the court did not allow them to file a complaint.
The next important judgment regarding adultery law under Section 497 came in Sowmithri Vishnu v. Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC.
In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man.
The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.
The argument was that if an unmarried man establishes adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in a sexual intercourse with a married man, she would not be held culpable for the offence of adultery, even though both disturb the sanctity of marriage.
The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.
In the next big case–V Revathy v. Union of India of 1988–on adultery law, the Supreme Court held that not including women in prosecution of adultery cases promoted “social good”. It offered the couple a chance to “make up” and keep the sanctity of marriage intact.
The Supreme Court observed that adultery law was a “shield rather than a sword”. The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.
Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law.
The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral.
Trivia: The Supreme Court bench that dismissed a plea challenging Section 497 had Justice YV Chandrachud on it. Current Supreme Court bench hearing the adultery law case had his son Justice DY Chandrachud on it.
It was Justice DY Chandrachud, who made the observation that women could not be treated as commodity by leaving them to the discretion of their husbands in giving consent in matters of adultery. The Supreme Court said in August this year that Section 497 as anti-women to dismiss the argument that the adultery law discriminated against men.
ADULTERY AS A GROUND OF DIVORCE-
Supreme Court suggested that adultery could be a ground of divorce and carry civil penalties, but not a criminal offence.
According to the Hindu Marriage Act, 1955 Section 13(1), any voluntary sexual intercourse with a person who is not the spouse, is a ground for divorce. Section 10 of the Hindu marriage Act, 1955 defines adultery as a ground for judicial separation.
Section 22 of the Indian Divorce Act made the provisions of judicial separation on the ground of adultery.
The Special Marriage Act, 1954, stated that if a person had voluntary sexual intercourse outside the wedlock, is a valid ground for divorce.
In my opinion, the descriminzation of adultery is a constructive step towards a progressive society by repealing laws that deprive women of their dignity. This is a type of deviant behavior, because it is immoral and immoral, because it violates the sacredness of the marriage system, which is considered the sacred system of society.
However, this is only half. To eliminate discrimination and guarantee gender equality, our country still has a long way to go. I think society should also emerge from the patriarchal mindset.
To ensure the sanctity of marriage, in my opinion, all aspects of religion, law and spirit are essential, all must be more cautious and sensitive to the marriage and family system, because it is a basic social unit.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs