A Brief Analysis Of Relationship Between Right To Equality With Adultery
The concept of Right to equality means 'that there is a right of every
individual to be treated equally in every social, economic, political and
religious aspects which are required for the smooth functioning of the society.
In other words, no individual shall be treated differently and discriminately
based on race, caste, gender and religion, this is known as ' equality before
The Law should be framed in such a manner that, if any individual doesn't get
the same privilege in comparison with the ordinary people, then they have the
liberty to gain some special privilege in a discriminatory manner so that they
can acquire the similar treatment in similar circumstances differently in order
to exist in the society, this is known as ' Equal protection of Laws' Article 14
of the Indian Constitution states that 'the State shall not deny to any person
equality before law and the equal protection of Laws.
The word 'Adultery' derived from the French word 'adulteroum' which means
'corrupt'. The concept of Adultery is that, 'When the Husband or Wife of the
marriage involves in a consensual sexual relationship with any person other than
their respective spouses which is considered as socially, morally, religiously
and legally wrong.
According to Section 497 of the Indian Penal Code, 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 case the wife shall not be punishable as an abettor.
The evolution of the concept of Marriage with Right to Equality:We humans are the part of the society where we value the morality, dignity
before anything else, that is the reason why we are very different from other
species and animals. During the primitive age, due to narrow mental development,
the male and female used to have sexual relationship with each other randomly as
a result when the child is delivered from the womb of the mother, he or she is
getting the maternal identity but they were under the crisis of paternal
With the psychological and mental development, humans discovered usage of fire,
agriculture and sense of ownership came within the minds of them.
As a result, humans can identify whether something belongs to them or not. So,
to identify the paternal identity of the child the concept of marriage has been
discovered. The concept of marriage regularizes the sexual activity between the
male and female which shows moral and ethical in the eyes of the society. So,
the child which takes birth from such relation is declared as the legitimate
Now we already know that marriage is a sacramental ceremony where the male and
the female give consent to each other to live together and takes responsibility
of each other and their child in mental, physical and financial manner.
The human psychology says that wherever there is a sense of responsibility there
is a sense of ownership which works simultaneously, as result with the
solemnization of marriage a sense of 'responsibility' and 'right' comes within
the mindset of the husband and wife. As a result, marriage became one of the
important fundamental rights, violation of the same will significantly destroys
the morality and dignity of an individual to survive in the society.
Marriage and Adultery:The right of marriage has legalised and organised a pure relationship and a
sexual relationship between the husband and wife, so that the child delivered
from the mother's womb gets his patriarchal identity but if either of the spouse
involves in a sexual relationship with a third person after the solemnization of
their marriage which is impure to the marriage then such act would result to
violation of their matrimonial rights and responsibilities towards the other
The child takes birth from such relation will be identified as an illegitimate
child which is not the legitimate child of the both the spouses. Such act shall
not be entertained by the law, and shall penalise the husband or the wife
Similarity between Right to Equality and Adultery according to the current
structure of the Indian Law:The offence of adultery in section 497 of IPC remained criminalised where the
section implies that only a man can commit the act of adultery and only the man
is punishable under this offense and the women is exempted from punishment even
if she is an abettor. Until the landmark judgement of the Joseph Shine vs
Union of India (2018), where the Supreme Court has decriminalised the said
offence and has declared the same as the one of the grounds for plea of divorce
in favour of the husband and wife against one another.
The court has reasonably applied his mind in this case by using the concept of
reasonable classification and the doctrine of intelligible differentia and
removed the gender disparity mentioned in the previous section and recreated the
act of adultery in a balanced way so that both the parties can claim the remedy
against the other.
Though the Supreme Court has reformed the offence of adultery in a very unbiased
and liberal way, but it failed to see that such change will result to more
increase of the commission of the offence, significantly the rate of divorce
will also increase, family bonding from both the sides of husband and wife will
slowly disappear and it will erase the morality and dignity which is required
for the existence in a civilised society.
A marriage is a sacramental and a religious act, where both the spouses promise
themselves in the name of God that will remain loyal and responsible towards
each other, but due to the liberalisation of act of adultery, spouses are
forgetting their matrimonial duties and losing the sense of morality, dignity as
a result it is becoming harmful and dangerous for the upcoming generation too.
By keeping the principle of 'Right to Equality', the offence of adultery should
be criminalised and such offence should make liable both the husband and wife
even if both the parties are abettors.
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