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Repercussions of Decriminalization of Adultery

In a landmark judgement of 2018, the apex court declared a 158-year law as unconstitutional. In Joseph Shine V. Union of India, the supreme court declared section 497 of Indian penal code, 1860 and 198(2) of criminal procedure code, 1973 as unconstitutional on the ground of violation of Article 14,15 and 21 of the constitution.

Adultery under section 497 of Indian penal code is defined 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".

The reason to declare the said section as unconstitutional was arbitrariness towards the women. Section 497 states that a wife need to take the consent of her husband is she wants to have intercourse with another man. On this Justice D.Y. Chandrachud said, "control sexuality of woman hits the autonomy and dignity of woman" and Justice R.F. Nariman said "ancient notions of man being perpetrator and woman being victim no longer hold good".

The said section was indeed arbitrary towards the wife but it was also arbitrary towards the man, section 497 only punishes the man but not wife, which means that even if the intercourse is voluntary between the woman and man, the only one who will be punished is the man.

Now, since Adultery is declared unconstitutional, the people committing the same has no legal boundaries. No one can be held as criminally responsible after committing the crime of adultery and this gave rise to a lot of problems in the life of married people. Marriage in India is considered pure and sacred due to the cultural, religious, and social significance it holds. It symbolizes unity, continuity, and family values, serving as a foundation for social stability and cohesion.

Marriage is seen as a source of spiritual and emotional fulfilment, fostering companionship, love, and support. It upholds moral and ethical values, emphasizing fidelity, loyalty, and commitment but decriminalization of adultery opened a Pandora box to the purity and holiness of marriage and impacted the Indian culture in negative way more than it did in positive way.

Repercussions of decriminalization of Adultery

Recently, an incident made headlines all over the country, where a wife after becoming Sub district magistrate left her husband. According to an article of Zee news dated 06 July, SDM Jyoti Maurya's husband claims that his wife is having an affair with another man. He further claims that helped her in completing her studies after marriage and when she became successful, she betrayed him.

Now, this is just one highlighted incident, but the number is in million of such cases and after joseph shine case, the aggrieved person in such cases is not left with any remedy except divorce no matter how much he suffers with mental cruelty, Emotional and Psychological abuse, psychological maltreatment and Psychological harassment. This is important to note that the children of such couple suffers even more.

Furthermore, it has been noted that, there has been a huge increase in such incidents after the decriminalization of adultery.

According to Gleeden, an application which provide a platform for extra-marital affairs, reports that it hit a boom in membership after the 2018 Supreme Court judgment that decriminalised adultery and gained more than 8 lakh subscriptions instantly and google play reports that it has 10 million+ subscription.

According to the survey conducted by Gleeden, 49% of married people in India confessed of having had an intimate relationship with someone other than their spouse, while Approximately 47% of individuals have engaged in casual sex or one-night stands. Furthermore, Indian women exhibit the highest level of openness towards infidelity. Around 41% of Indian women have acknowledged having regular sexual encounters with someone other than their spouse. Additionally, 53% of married Indian women have admitted to having been involved in an intimate relationship outside of their marriage.

Now, considering the survey, the condition in India is much Atrocious and Wretched, despite the fact that this country is known for its sacramental values and Unadulterated culture, shockingly even United States still criminalize adultery in 16 states.

Is Divorce a remedy to Adultery?

Theoretically yes. According to sec. 13 (1) (i) of Hindu Marriage Act, 1955 says that if after the marriage solemnized, any person indulges in voluntary sexual intercourse with another person other than his or her legally wedded spouse, then the aggrieved party can take it as a ground for divorce.

But the bigger question here is that, is divorce a remedy to anything? It is well established that, Divorce brings emotional distress, including feelings of grief, loss, anger, and loneliness. It often leads to significant changes in lifestyle, living arrangements, and financial stability for both spouses. Children may experience emotional and psychological challenges, such as stress, confusion, and a sense of instability. And if any person is taking divorce as a remedy to adultery, then it will be do nothing but bring more distress in the life of person aggrieved.

The law of adultery indeed constricted extra-marital affair and the fear of prison stopped them from doing so but since the said law is no more criminal offence there is nothing which restricts them.

Also, there is no denying that the law of adultery contained arbitrariness and inequality but instead of declaring it unconstitutional all together the apex court may have directed the legislation to make amendments and change it in a way where it is not biased anymore. Furthermore, the section 497, IPC in India should be like as in United states, where it penalize both male and female and in that way it would eliminate the arbitrariness and also there would have been no need to declare it unconstitutional.

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