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ADULTERY- NO LONGER A CRIMINAL OFFENCE IN INDIA


Adultery is no longer a crime a crime in India although it can be a ground for judicial separation. The Supreme Court of India has struck down 158 year old colonial-era law which has been criticized for treating women as property owned by men[i]. The five-judge constitution bench said that “it’s high time to say that husband is not the master of his wife”, unanimously sticking up for gender equality and calling out adultery law as arbitrary and discriminatory.

Adultery is defined under Section 497 of the Indian Penal Code. The adultery law has come under the purview of judiciary several times in the past but the courts including Supreme Court held Section 497 constitutional.


IPC Section 497

“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 adultery”.[ii]

In the earlier times, a man is said to commit a crime if he had sex with a married woman without the permission of her husband. Under the Indian Law “woman could not be punished as an abettor –the man is considered to be a seducer”.


Who challenged the constitutionality of law?

The petition was filed by Joseph Shine challenging the constitutionality of IPC Section 497 read with Section 198 (2) of the CrPC. Section 182 (2) of the Criminal Procedure Code deals with prosecution for offences against marriages. He challenged the law saying it was arbitrary and discriminatory against men by only making them liable for extra-marital affairs, while treating women like victim.

In his petition it was said that married women are not exceptional in terms of prosecuting them for committing adultery. They are not in any way situated differently than men. However, Modi’s government opposed scrapping the adultery law arguing that it will impact the sanctity of marriage; making adultery legal would also hurt marriage bonds. The sanctity of marriage can be ruined by a married man having sexual intercourse with an unmarried or a widow which is not penalized by the law.

In cases related to adultery, the married women shall be not punishable as an abettor but the man who commits the same is liable with imprisonment of either description for a term which may extend to five years, or with fine, or with both under Section 497 of IPC.


HISTORY

Section 497 is a pre-constitutional law which was enacted in the year 1860. During this period women conferred no rights independent of their husbands and were treated as chattel of their husbands. Hence the offence of marital infidelity was treated as an injury to the husband.

The Indian Penal Code was first drafted by the Law Commission in 1837 under the chairmanship of Lord Thomas Macaulay. This draft did not include the word ‘Adultery’ as a criminal offence. Lord Macaulay was of the view that adultery was a private wrong between the parties involved and thus it is not a criminal offence. However his views were overruled in Joseph Shine v. Union of India.

The Supreme Court in Joseph Shine goes on to discuss the vice of unconstitutionality inherent in the offence of adultery, as follows:

Who can file a complaint?

The husband of the woman with whom adultery is committed can file a complaint. However in his absence, any other person who had care of the woman can file a complainant on his behalf if the court allows. [Section 198(2) CrPC]

In Joseph Shine case, this was held to be arbitrary, discriminatory and violative of constitutional guarantees as mentioned below.


No right has been conferred to woman to file a complaint

The woman should not complain even if her husband has an extra-marital affair with another woman. The wife of an adulterer has no voice of her own although adultery is considered to be an offence, no agency to complain.

Who can be prosecuted for committing adultery?

The adulterous man is prosecuted for committing adultery and adulterous woman is exempted from this criminal liability even though the relationship is consensual.

Breakdown of marriage:

In many cases it is believed that if either of the parties had an extra marital affair with another person outside the marriage can lead to the breakdown of marriage. But often such affairs are not the cause for an event occurred but are the consequence of a pre-existing disruption of the marital tie.

Pending of Divorce Cases:

Manifest arbitrariness is writ large in case of married woman. When her marriage breaks down she calls for divorce as a result of which she can no longer cohabitate with her husband. In the process of getting divorce, in the meanwhile if she has sex with another man, then that person is held guilty of the offence.

Whether adultery to be treated as a Criminal Offence?

Basically adultery deals with institution of marriage. The term Adultery does not fit into the concept of crime but can be considered as a ground for judicial separation. Only few nations continue to treat adultery as a crime but most of the countries retain adultery for the purpose of divorce laws.

Why did SC itself strike down the provisions?

These provisions are outdated. According to the maxim of Roman law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law itself also ceases], applies to interdict such law. If any law falls out of constitutional guarantee, the Supreme Court has every right to strike down such provisions without waiting for legislation.

Adultery continues to be a ground for divorce:

It is crystal clear that adultery can be a ground for any civil wrong including dissolution of marriage.


Conclusion

The judges of the Supreme Court has to say that law wrongly treats the women as a chattel or property of the men and which results in abrogation their fundamental rights conferred under the Indian Constitution. Adultery can viewed as reasonable restriction for availing divorce. Hence the court concluded that law should regulate the process of judicial separation if either of the party in the marriage breaks the legal sanctity of marriage bond. The legal system should not regulate with whom one should sleep. Moreover, mere criminalization of Adultery does not change the social behavior of an individual in the society.


AUTHOR: Hema Gootala

[i]https://www.usatoday.com/story/news/world/2018/09/27/india-adultery-no-longer-criminal-offense-supreme-court-rules/1440429002/ [ii]https://indiankanoon.org/doc/1833006/

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