Decriminalization Of Adultery: Implications On Matrimonial And Military Laws
Decriminalization of adultery is in news again. Recently on 25 June 2020,
honourable supreme Court dismissed the review Petition filed by a religious body
challenging its 2018 Judgement. The same bench dismissed the aforementioned
review petition citing it as devoid of substance.
Supreme Court of India, in the case of Joseph Shine vs Union of India ( 2018)
decriminalized adultery while striking down section 497 IPC read with section
198(2) of Code of criminal procedure.
Honourable court speaking through Justice Nariman said that Section 497 is an
archaic law and violative of the rights to equality and equal opportunity to
women. It was held to be violative of article 14,15 and 21 of Indian
This aged long offence in the form of adultery was deeply rooted in
patriarchial society of India. The women is considered a chattel of man and sec
497 of IPC was a live example of patriarchy. Honourable Court rightly struck
down the section 497 of IPC. But this decision of court opened the pandora box
with many questions.
The impact of decriminalization of adultery on other civil laws in which
adultery is still a sin, is yet to be examined practically. Although honourable
supreme Court categorically mentioned in the aforesaid Judgement that the
decriminalization of adultery shall not impact the matrimonial laws and wife of
a person involved in adultery will be at liberty to make it a ground of
divorce. This short article is meant to focus on various prevalent laws of land,
on which affect of decriminalization of adultery is yet to discuss.
Adultery v/s Stealing the affection of Brother's Officers Wife:In the Indian Army, for instance, adultery is described using the military
euphemism “stealing the affection of a brother officer’s wife”. The situation is
similar in the Air Force and the Navy too.
Offences of this nature were punishable with a court martial and five years
rigorous imprisonment under Section 69 of the Army Act (read with Section 497 of
the IPC, as it stood). The section 69 of Army Act deal with all kind of offences
( called civil offence as against martial offence) which includes adultery under
Now, the Judgement is silent about adultery under military law. As a general
rule according to article 142 of constitution, the Judgement of Supreme Court
becomes law of land and all the Judicial, quasi-judicia or adminstrative bodies
are bound to follow that law.
Now as per this perspective, it can be said emphatically that military court are
bound to follow the law set by supreme Court of India and adultery should not be
punished in military also. But things doesn't stop here. The sections 45 , 46
and 63 of Army Act 1950 define unbecoming conduct, indecent act and violation of
good conduct and order respectively on the part of army persons.
The words like unbecoming conduct, indecent act or violation of good conduct are
of broad nature and wide connotation. The discretion is left on military courts
to decide what is unbecoming conduct or indecent act. If these provisions had
been inserted in civil law, these would have been challenged long ago. But as
discipline is the back bone of army and hence the existence of such military
laws is an evil necessity.
Any act of adultery can easily be prosecuted under sec 45, 46 and 63 of Army Act
because adultery still can be taken as indecent act or unbecoming conduct. Now
question arises, whether it is not a form of colorable legislation. Anything
which cannot be done directly, the same thing also can't be done indirectly. But
this issue could not draw the attention of court in the Judgement of Joseph
Shine and still it is open. As a result military court has still power to
prosecute it's subject for adultery when it is not an offence for rest of
Adultery v/s Matrimonial Law:While striking down Section 497 of the Indian Penal Code, the court however made
it clear that adultery can be a ground for divorce. Section 13(1) of Hindu
Marriage Act 1955, provides that any of the party to marriage may demand divorce
on the ground of adultery of other. It is pertinent to note that the adultery
for the purpose of divorce may be committed by any of party to marriage unlike
section 497 of IPC, where only male is liable for punishment. If wife is
involved in adultery, then her husband has right to get divorce. The
decriminalization of adultery didn't alter this course of remedy available to
non adulterous husband or wife.
On the similar lines, the maintenance given by husband to wife or wife to
husband under various provisions of personal laws like section 24 & 25 of Hindu
Marriage Act 1955, section 18 of Hindu Maintenance Act 1955 are also unaffected
due to decriminalization of adultery. Any husband or wife can't claim benefit in
their favour on the ground that adultery is no more an offence. The adultery is
very much relevant and is actionable under matrimonial laws in almost all the
personal laws in India.
Furthermore, section 125(4), which talks about non entitlement of maintenance
for wife if she is living in adultery, is also unaffected of decriminalization
of adultery. Though section 497 IPC and sec 125(4) Crpc, both are related to
criminal codes, but even after there is no impact of striking down of sec 497
ipc on sec 125(4) as the later is purely a social welfare legislation inserted
in criminal law for its better enforcement.
Adultery v/s other criminal offence:It is interesting to note that adultery itself has been decriminalized by
striking down of sec 497 IPC, but other offences related or caused because of
adultery are still punishable.
The court in the case of Joseph Shine held that if a person commits suicide due
to the adulterous relation of the partner, then it could amount to abetment to
suicide if there is sufficient evidence. It may appears strange that when any
act ( read adultery) itself is not an offence, how it can become abetment for a
crime, but it is true. As I said at outset that adultery is considered to be a
sin and is deeply rooted in out society. The adultery by any person is a sort of
mental cruelty to his or her partner.
If a person aggrieved by adultery of his partner commit suicide, partner is
liable for abetment under sec 306 IPC. If a partner get provoked due to
adulterous act of his or her partner and under influence of such provocay
commits murder, then he has a good defence in the form of exceptions of murder
under section 300 of IPC.
Adultery in Extra territorial jurisdiction:Indian penal code including sec 497 ( adultery) has extra territorial
jurisdiction for the citizen of India. Any offence committed by any citizen at
any place across the world ( or high sea) by the citizen of India is actionable
and he /she can be punished accordingly. Settled principle in accordance with
section 3 and 4 of IPC is that if any act which is offence in India ( but not an
offence in any foreign nation) the offender shall be punished as per Indian law.
Similarly, if any foreigner who commits any act on territory of India, which is
offence in India, shall be subject to Indian criminal justice system. Adultery is
still any offence in counties like Pakistan, Saudi Arabia, Some districts of USA
and many others whereas this was decriminalized in countries like Australia,
Cannada, Britain several years before India.
Now, if any Indian citizen commit the offence of adultery in Saudi Arabia (
taking wife of a person with him from India), then as per literal meaning such
person can be prosecuted in Saudi Arabia, but the husband with whose wife
adultery is committed is present in India, where adultery is no more a crime. As
this Illustration is hypothetical and may be controlled by private international
law, but can any Indian citizen be left unprotected when any act affecting
purely matrimonial relation is offence out of India but not within.
From the discussion above, it can be concluded that adultery as an offence must
go and court took a step forward to reduce the gender gap in patrichial Indian
society. It is also unique that the adultery is only decriminalized for purpose
of penal provisions and not for any other purposes including matrimonial issues.
In civil laws, adultery can be used by husband and wife to get or refute the
required remedy. Though, trivial issues are left unaddressed as in case of
martial laws, which will be addressed at appropriate time. But as of now, it can
be safely said that it was indeed a progressive decision by Honourable supreme
Court of India.
Written By: Hari Mudgil is an lawyer cum author who writes on social and
Law Article in India
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