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Decriminalization of Adultery In India

Section 497 of Indian Penal Code provides the law relating to adultery. Adultery is an incursion on the right of the husband over his wife. It is a misdemeanor against the sanctity of the wedlock and, an act, which is done by a man. It is a standoffish and illicit act. The Apex Court previously considered that it cannot be said that in construing the offence of adultery, any constitutional provision is encroached by curbing the class of wrongdoer to men only.

The previous stand of higher judiciary was that Section 497 of IPC is not paradoxical of Article 21 of the Indian Constitution. But, recently, the Supreme Court has acknowledged 150 years old law on adultery as unlawful, which treats husband as the master of his wife. It antagonizes the dignity of a woman. The Court held that husband is not the master of wife. Section 497 of IPC is categorically and conspicuously arbitrary and absurd because it provides unlimited rights to husband to deal with the wife as he likes which is very much disproportionate.

Introduction:
When a man steals your wife, there is no better revenge than to let him keep her. – Sacha Guitry
A plain reading of SECTION 497 of IPC tells us about the provision relating to the offence of ‘adultery’. It reads as follows :

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 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 case the wife shall not be punishable as an abettor.

This is an offence against marriage. Adultery is an offence committed by a third person against a husband in respect of his wife. A married man having sexual intercourse with

  • (a) An unmarried woman, or
  • (b) With a widow, or
  • (c) A married woman whose husband consents to it, or
  • (d) With a divorced woman,

Commits no offence under this section.

History of Section 497

Justice R F Nariman said all ancient civilizations punished the Sin of Adultery.

In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment- thou shalt not commit adultery- set out in the book of Exodus in the Old Testament.

In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul’s to the Corinthians.

In India, too, Manusmriti provided for punishment for those addicted to intercourse with other men’s wives by punishment which cause terror, followed by banishment.

The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and woman.

Law of Adultery In Other Countries

The criminal law of adultery varies from country to country. It is not uniform. It differs according to the religious norms, attitude of the people and many other factors.

Some countries where adultery is still a crime:

  1. Afghanistan
  2. Bangladesh
  3. Pakistan
  4. Nepal
  5. Indonesia
  6. United States of America (some states)

Some countries which have done away with adultery as a crime-

  1. Japan
  2. Brazil
  3. New Zealand
  4. Australia
  5. Denmark
  6. France

Some Cases In Which Law Relating To Adultery Was Challenged Before The Court:-
Yusuf Aziz v/s State of Bombay:
The adultery law first came under challenge in 1951 in this case. Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.

Three years later in 1954, the Supreme Court ruled that Section is commonly accepted that it is the man who is the seducer, and not the woman. The Court stated that women could only be a victim of adultery and not a perpetrator of the crime under Section 497.

Sowmithri Vishnu v/s Union of India

The Supreme Court held that the section is not discriminatory between man and woman, i.e. an under inclusive definition is not necessarily discriminatory. It does not offend either Article 14 or 15 of the Constitution.

The 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.

V.Revathi V/S Union Of India

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.

Besides, these above judgments, there were two more important views in connection with adultery law.

The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Reforms of 2013 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral.

The offence of adultery reflects discrimination. It rests in larger part on the idea that a woman is the property of the male. An analysis of Section 497 along with various observations by the Supreme Court and High Courts, bring us to the conclusion that only a man can commit adultery. The married woman who is involved in the conduct is not punishable as the adulteress, because she is treated as a victim, not as the author of the crime, because she has no entity and she is a non-person. The section negates the free will of the woman in adulterous conduct and does not concern itself with the intentions behind her act. This is probably because the woman is looked down upon as an object, as an inanimate property, whose rights are almost transferable.

Joseph Shine V/S Union Of India (2017) – The Case In Which Supreme Court Struck Down The Law Relating To Adultery

In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. The three-judge bench, headed by the then-Chief Justice of India, Dipak Mishra, had referred the petition to a five-judge Constitution Bench, which comprised of Dipak Mishra, and Justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra, admitting that the law seem to be archaic. While hearing the matter previously, the Court had observed that the law seemed to be based on certain societal presumptions. In four separate and concurring judgments, the Court struck down the law and declared that the husband is not the master of his wife. However, adultery still remains a civil offence. It can be a ground for divorce. The judgment directly blows the archaic and patriarchal law in our country.

The Judgment held the following things:-

Section 497 Is Archaic And Is Constitutionally Invalid

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Sexual autonomy is a value which is an integral party and falls within the ambit of personal liberty under Article 21 of India Constitution. Respect for sexual autonomy is established only when both the spouses treat each other with dignity and equality. This section is a denial of substantive equality in that it reinforces the notion that women are unequal participants in a marriage, incapable of freely consenting to a sexual act in a legal order which regards them as a sexual property of their spouse. In this way, it is violative of Article 14. It is based on gender stereotypes and violates the non-discrimination clause of Article 15. Besides, the emphasis on the element of connivance or the consent of the husband tantamount to the subordination of the women. Therefore, it clearly offends Article 21 of the Constitution.

Section 497 To No Longer Be A Criminal Offence

A crime is something which is committed on the society as a whole, while adultery is more of a personal issue. Adultery dosen’t fit into the concept of the crime as that would otherwise invade the extreme privacy sphere of a marriage. However, it continues to stand as a civil wrong and a ground for divorce. What happens after adultery is committed should be left to the husband and wife to decide as it is something which should only involve their personal discretion. Hence, declaring adultery as a crime would somehow creep injustice into the system.

A Husband Is Not The Master Of His Wife

The judgment places reliance in the fact that women should not be considered as the property of their husbands or fathers, for that matter, anymore. They have an equal status in society and should be given every opportunity to put their stance forward.

Section 497 Is Absolutely And Manifestly Arbitrary:

It is absolutely and manifestly arbitrary and irrational because it confers a license on the husband to deal with his wife, as he likes which is extremely excessive and disproportionate. The provision of Section 497 of IPC does not enable the wife to file any criminal prosecution against the husband.

Conclusion
The Supreme Court has acknowledged 150 years old law on adultery as unconstitutional, which treats husband as the master of his wife. The then Chief Justice of India declares, The adultery law is arbitrary and offends the dignity of a woman.

In this recent landmark judgment, the Apex Court directly blows the archaic and patriarchal law in our country. Supreme Court in Joseph Shine case, has clearly laid down that the beauty of the Indian Constitution is that it includes ‘I’, ‘you’ and ‘we’. The women cannot be considered as a property of men in the modern progressive jurisprudential parameters and expansive constitutional vision.

It further lays down that when there is consent of the man to develop relationship outside the wedlock then there is no offence. The Apex Court declares that autonomy, desire, choice and identity are the important aspects of the dignity of woman.

In this regard, the Apex Court refers the judgment of K.S. Puttaswamy and another v/s Union of India and others (2017) in which Court declares that right to privacy is a fundamental right as prescribed under Article 21 of the Constitution. The Court has recognized the conceptual dignity and equality of woman, which cannot be curtailed.

Moreover, the Supreme Court asserted that adultery can be a ground for civil issues such as dissolution of marriage however, it cannot be a criminal offence. Adultery might not be the cause of an unhappy marriage however, it could be the result of an unhappy marriage.

Along with Section 497 of IPC, Section 198 of CrPC is also declared unconstitutional thereby decriminalizing the offence of adultery. Justice DY Chandrachud asserted that, the history of Section 497 reveals that the law on adultery was for the benefi of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency.

References:

  1. B.M. Gandhi, IPC (Lucknow : Eastern Book Company, 2017)
  2. pragati publication – by Dr. Arshi Pal Kaur
  3. Sacha Guitry – Book of Humurous Quotations – 1998
  4. Times of India - by Dhananjay Mahapatra
  5. indiatoday – by Prabhash K Dutta
  6. legalbites – by Nandini Gupta and Gargi

Written By: Lakshita Sootrakar

Divorce on Grounds of Adultery

  • To File Divorce on Grounds of Adultery in Delhi and NCR
    Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available in Whatsapp)

  • To File Divorce on Grounds of Adultery in Pune
    Contact NirDita Law Firm at Ph no: 8851978611 (Available in Whatsapp)

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