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Adultery from IPC to BNS

Engaging in sexual activity with a woman to whom a married man is not legally wedded constitutes adultery. India had criminalized adultery under Section 497 of the Penal Code. In addition to a monetary fine, the utmost sentence for this felony was five years in prison. In contrast to the more expansive definition of adultery acknowledged in divorce proceedings, the definition of adultery provided in Section 497 was marginally more limited in scope.

The act of engaging in sexual activity with the spouse of another man without obtaining their explicit permission or acquiescence is the only man who is considered to have committed the offence.[1] A woman was not subject to legal repercussions solely on the basis of her adultery; she was not even deemed culpable if she provided assistance in the commission of the offence. Section 198 of the Code of Criminal Procedure (CrPC) pertained to the legal entitlements of an individual who had suffered damage or adverse consequences; this person is commonly known as the "person aggrieved."

Subsection (2) of the clause mentioned above pertained to the legal classification of the woman's spouse as the intended victim of an action in contravention of Section 497 of the Indian Penal Code. In the absence of the woman's spouse, the court may permit any individual responsible for her well-being at the time of the offence to be deemed resentful. As per the perspective, the spouse of the individual involved in extramarital infidelity did not suffer as a result of injustice.

As a part of pre-constitutional statute, Section 497 was inserted in the IPC in 1860. During that era in history, women were regarded as "property" of their spouses and lacked any independence of action.[2] Due to the characterization of the adultery as a misuse of the spouse's assets, it was considered a breach of contract, granting the spouse the right to commence legal proceedings against the adulterer. "Adultery" was omitted from the first iteration of the Indian Penal Code (IPC), which was published by the Law Commission of India in 1837. Lord Macaulay posited that adultery and marital infidelity ought to be regarded as personal sins between the individuals implicated, as opposed to criminal offences.

Nevertheless, the Second Law Commission recognized the seriousness of the matter and ultimately reached the consensus that it would be imprudent to omit this transgression from the Code. Prominent legal academics from England have deliberated on the prevalence of adultery in the penal codes of other nations, pointing out the deficiency of such legislation in England.[3]

Section 497 of the Indian Penal Code and Section 198 of the Criminal Procedure Code have been challenged on multiple occasions for their legality before the Supreme Court of India. Legal proceedings were commenced in the case of Yusuf Abdul Aziz v. State of Bombay [4] against a spouse who was believed to be guilty of adultery in violation of Section 497 of the Indian Penal Code. The constitutionality of Section 497 has been contested on the grounds that it violates provisions of Articles 14 and 15.

This is because of a provision which exempts a wife who engages in adultery from legal responsibility for abetting its commission. The three-judge panel affirmed the constitutionality of the clause in question on the grounds that it is a special provision intended to assist women and is protected by Article 15(3). Moreover, the legality of combining the two is established on the grounds that sex is merely a classification and Article 14 is a general principle that must be interpreted in conjunction with other articles.

In the case of Sowmithri Vishnu v. Union of India[5], a petition was filed under Article 32 of the constitution to scrutinize the constitutionality of Section 497 of the Indian Penal Code. The argument emerged subsequent to the observation that the provision in question exhibits discriminatory characteristics by precluding a woman from initiating legal proceedings against another woman accused of adultery with her spouse.

In this instance, the legislative branch, not the judiciary, ought to be responsible for expanding the definition of the infraction, as further was affirmed by the three-judge bench in support of the legality of the decision. It held that when a family unit is damaged, the risk of harm is equivalent to that of damage to a tangible dwelling; therefore, a penalty should be warranted. The court further recognized that the commission of this offence is exclusive to males.

In V. Revathi vs. Union of India[6], the court held that as this provision prohibits both spouses from bringing adultery-related lawsuits against one another, the court, in conjunction with Section 198, upheld the constitutionality of Section 497 and declared it indiscriminatory. The penalty is imposed exclusively on an individual who tries to desecrate the institution of marriage but is not affiliated with it.

However, Section 497 of the IPC and Section 198 (2) of the CrPC now stand ultra vires to the constitution after the Supreme Court's ruling in Joseph Shine v. UOI.[7]

Case Name : Joseph Shine V. UOI
Citation: (2019) 3 Scc 39, Air 2018 Sc 4898
Case Type: Civil Writ Petition

In the year 2017, Joseph Shine, an individual of Indian nationality residing in Italy, filed a petition in the public interest using Article 32 of the Indian Constitution. The objective of this appeal was to contest the legitimacy of Section 497 of the Indian Penal Code, 1860 (IPC), which pertained to the offence of adultery. The provision outlined in Section 198(2) of the Code of Criminal Procedure 1973 (CrPC), which pertained to cases involving crimes under Sections 497 or 498 of the Indian Penal Code (IPC), and limited the designation of an aggrieved party solely to the husband of an adulterous individual, has also been subject to scrutiny.

The case challenging the decision was submitted before a Constitution Bench consisting of five judges by a division bench headed by the former Chief Justice of India, Dipak Misra. The panel reached a unanimous decision, concluding that the pertinent statute seemed to be outdated.

  • Women were denied the right to bring forth complaints.
  • Only an adulterous individual faced legal prosecution.
  • Females regarded as possessions of males.
  • Violating Articles 14, 15, and 21 of the Constitution of India.
  • Is it appropriate to classify adultery as a criminal offence?

Insofar as it pertained to Section 497 of the IPC, the Supreme Court determined that Section 198(2) of the CrPC was in violation of the Constitution. Furthermore, the Court determined that Section 497 of the IPC was ultra vires for contravening Articles 14, 15, and 21. This ruling overturned several prior decisions that had upheld the criminality of adultery.

Section 497 was deemed antiquated and unconstitutional by the Court on the grounds that it violated the privacy, dignity, and liberty of a woman. The contention was that the contentious segment infringed upon a woman's personal freedom and right to life by endorsing a marriage ideal that undermined authentic equality and by associating criminal penalties with a gender-biased view of the relationship between a man and a woman. It was contended that an excessive focus on the husband's compliance or participation led to the enslavement of the woman. The Court reaffirmed the constitutionally protected fundamental right to sexual privacy.

Furthermore, it was ascertained that Section 497 failed to uphold substantive equality by reinforcing the notion that women were not equivalent marital partners and were incapable of granting voluntary consent for sexual activity on account of their property status as perceived by the legal system and society. This section was therefore considered to have contravened Article 14. Moreover, on the basis of gender stereotypes, the courts determined that Section 497 violated the non-discrimination clause of Article 15. Furthermore, the denial of women's fundamental rights to privacy, dignity, liberty, and sexual autonomy constituted a violation of Article 21.

Notwithstanding the criminal prohibition on adultery, the Court determined that it continued to be a civil error and a valid reason for divorce. It was stated that adultery was classified as a matter of privacy, in contrast to illicit acts which were directed towards the wider public. The Court's decision concerning the criminalization of adultery suggested that the government had invaded into the private spheres of individuals and that, following the improper conduct, the spouses should be allowed to collectively determine the course of action according to their own discretion.

Throughout history, adultery has been regarded as a significant transgression due to its disruption of the husband's exclusive rights and privileges, which were deemed akin to the greatest kind of property infringement, comparable to theft. Upon studying Section 497, it becomes evident that women are regarded as being of lower status compared to men, as the provision stipulates that no offence is committed when the man consents or connives. This perspective regards women as property.

The aforementioned perspective regards women as possessions of men and entirely subordinate to the authority of their male counterparts. The existence of the penal clause at the time of its drafting reflects the prevailing social dominance. Therefore, it was rightly held as being violative of a woman's sexual autonomy, her right to privacy and her right to dignity and choice (Article 21)

In cases of adultery, legal prosecution typically targeted the male party involved in the extramarital affair, whereas the female party was generally exempt from such legal consequences, despite the mutual consent underlying the connection. The woman engaged in an extramarital affair was not seen as an accomplice to the transgression. Females were granted immunity from legal responsibility in criminal cases.

Moreover, The legal provision ruled it out for the wife from pursuing legal action against her husband for his involvement in an extramarital affair. Furthermore, the legislation did not criminalise the conduct of a married individual who partakes in intimate relationships with an unmarried lady. These provisions were violative of Article 14 (Right to Equality) and Article 15[1] (Barres discrimination on grounds of sex etc.)

Adultery In Bharatiya Nyaya Sanhita

The Parliamentary Standing Committee on Home Affairs has made a recommendation to maintain the inclusion of the offence of adultery in the Bharatiya Nyaya Sanhita, a proposed law tabled by the Union Government with the aim of replacing the Indian Penal Code. The Committee held the perspective that the institution of marriage is regarded as sacred within Indian society, hence necessitating the preservation of its sanctity.[8]

If this proposal were to be enacted, it would align the civilian law against adultery with the existing unchanged army law on adultery, as that remain untouched in the Joseph Shine case. The military enforces disciplinary measures against both male and female officers who engage in adultery, so ensuring equitable application of this legislation across genders. Consequently, the arguments presented in the Joseph Shine case are largely inapplicable to the adultery laws within the military context. However, the committee's recommendations in this regard were not adopted into the legislation, which will come into force in July 2024.

The panel's recommendation effectively addressed the concerns and objections associated with the law by using a gender-neutral approach. Nevertheless, the consideration of adultery as a criminal offence is subject to careful examination and legal discourse. Criminal acts are perpetrated against the collective body of society, whereas adultery constitutes a transgression of a personal nature. The consideration of adultery as a criminal offence would result in a significant infringement upon the highly private domain of marital relationships, as articulated by former Chief Justice of India, Deepak Mishra, in the Joseph Shine case.

The imposition of criminal penalties for acts of adultery would be a form of official intervention in the personal lives of individuals, encroaching into their private sphere. Moreover, the criminalization of adultery would infringe upon an individual's inherent liberty to exercise autonomy in selecting their sexual partners. The protection of an individual's autonomy to exercise their personal choices on their sexual preferences inside the most private aspects of life should be safeguarded against public judgement.

Adults in consenting relationships should be able to maintain their privacy while making decisions for themselves; unless there is a compelling reason to do so, the state should not intervene in private adult relationships. It is imperative that individuals exercise autonomy in determining their own romantic partnerships, while the government ought to prioritise public safety over the imposition of rigid moral or social mandates. Some people subscribe to the idea, with regard to married relationships, that adultery constitutes a breach of trust and that marriage is a solemn commitment between two individuals to remain faithful to one another.

Consequently, adultery could be considered a valid and justifiable reason to initiate divorce proceedings, with the intention of addressing the significant emotional and psychological consequences endured by the betrayed individual. Actuality be told, adultery is recognised as a valid legal ground for divorce in the personal laws of the Hindu, Muslim, and Christian majority in India. Nevertheless, the regulations do not delineate any severe repercussions associated with engaging in such activities.

One potential line of action could be imposing tortious liability on an individual engaged in adultery, so establishing a legal basis for pursuing divorce, as is already the prevailing norm. Too frequently, adultery is perceived as a social transgression rather than an individual's private matter. The notion that the government employs criminal law as a means to restrict personal freedom and enforce coercion is widely held. The incorporation of adultery into tort law permits individuals to exercise their autonomy and freedom of decision-making while remaining within the framework of a civil legal system.

Victims who prefer not to have the state impose criminal sanctions may pursue civil remedies, such as filing a lawsuit for damages. Generally, the objective of tort law is to provide compensation to the aggrieved party for their damages, as opposed to assigning fault to the party who was at fault. In the context of infidelity, tortious liability pertains to the request for restitution regarding the psychological anguish, reputational harm, or other form of harm suffered by the betrayed spouse.

Moreover, adultery is frequently interpreted and perceived through a variety of cultural and moral frameworks. Criminalising adultery could potentially establish a singular criterion that is incongruous with the diverse perspectives, attitudes, and convictions that comprise a given society. Tort law permits a more nuanced approach that recognises and accommodates cultural and individual differences.

  1. 1860, Indian Penal Code, Section 497
  2. Daniel E. Murray, Ancient Laws on Adultery- A Synopsis, 1 J. FAM. L. 89, 91(1961).
  3. Ratanlal and Dhirajlal. The Indian Penal Code, 35th Edition- 2017: 673-675
  4. 1954 AIR 321 1954 SCR 930
  5. 1985 AIR 1618 1985 SCR Supl
  6. 1988 AIR 835
  7. (2019) 3 SCC 39, AIR 2018 SC 4898
  8. NETWORK LN, "Criminalise Adultery In Gender Neutral Manner In New Penal Code, Recommends Parliamentary Panel" (Criminalise Adultery In Gender Neutral Manner In New Penal Code, Recommends Parliamentary Panel, November 13, 2023)

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