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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 constitution.

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 497 IPC.

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 citizen.

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 legal issues.

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