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Decriminalization Of Adultery In India

On 27thSeptember 2018 Supreme court of India broke down Section 497 of Indian penal code in the case Joseph Shine v. Union of India, which criminalise the act of Adultery.

497. Adultery:
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.

After this judgment, adultery is legal but not yet ethical from society’s perspective.
The marriage is based upon the confidence of partner in each other. The court denied from interfering in personal and moral lives of the peoples. Hence, adultery is now just a civil wrong for which the remedy is divorce.

The Story Behind
Marriage in usual parlance means the social as well as the legal union of two individuals, generally a man and woman into a legitimized relationship in the eyes of society. These two individuals after the wedlock are regarded as Husband and Wife, spouses or life partner to each other. This union also signifies that now they both are socially and legally tied to each other in terms of having responsibilities of their families and children equally, both partners holds certain rights along with a few obligations and duties which needs to be fulfilled when requires.

The impetus and behoof of marital arrangement is to vindicate the sexual relations of spouses emanating and then later ensuing in the birth of their offspring’s.
However, if sporadically the marriage requisites are being challenged and tested at the time of shattering the boundaries of its modesty. These boundary walls are so established for the partners to stay committed to each other in every aspect of their married life. Disloyalty is moral, social, religious and legal wrong because it disparages the sanctity of pious bond shared by the two life partners.

Different jurisdiction treats it differently as per their rules and regulations. Several countries and cultures have criminalized the act of adultery in purview of claiming it against the religious values of human relations, punishment for which is very serious in essence. But the Indian adultery law is dissimilar to other country laws and is originally derived from the British rule period.

Adultery is extracted from the Latin verb, adulterium, meaning contamination of matrimony bond; listed under the section 497 of Indian Penal Code and section 198(2) of crpc.
In simple explanation, it is assert as establishing the sexual intercourse by an already married man outside his marriage with another married woman who isn’t his wife without or with the consent of her husband.

The man keeping something up the sleeves from another woman’s spouse is alleged to have committed the crime of adultery under this provision and he thereafter can be awarded with the punishment for five or more years or else he can be even made to pay penalty for the same. On the other hand, woman who is involved with this man is not held guilty. She is not even considered abettor for the same.

In cases, where the husband of a woman with whom another man has forged ahead sexually is if in connivance with him, don’t bother to interfere in their actions. This cuckold husband when consents to the extra-marital affair of his wife with another man, paradoxically it is not considered as a crime of adultery. Is it the impartiality which we wish to see in our country? The answer is no.

Secondly, only a man is described as an adulterer and it is presumed that he has seduced the wife of another man and as a consequence, the wife consented to do sex with the man. How could it be claimed with so much assurance that a woman can be only seduced by that man, she can also give her personal consent to the man? She too have personal sexual choices in her life which can’t be overlooked by our patriarchal society, isn’t it?

This is only a true picture of male- dominating society filled with biased laws against the woman. This section is read along with the IPC section 198(2) and is completely capricious in nature as it belittles the worth of a woman in sacrificial union of marriage, where a husband enjoys a clear dominance over his wife preferences in aspect of her sexual desires which should be instead her own preference.

Thirdly, it can be observed that only a man is accused of infidelity but not the woman, why? Well there is no answer to this query.

Fourthly, why the woman consent is not regarded as important as of man? This evidently shows that the wife can never go averse with her husband choice and she is his property, not more than his chattel. The issue with this section 497 is been ventilated since many years.

Previous judgements on Adultery
  1. Yusuf Abdul Aziz vs State of Bombay
    The first case where Adultery was challenged in 1951. The main contention in case was that the section 497 of IPC infringes the fundamental rights assured in Article 14 and 15 of the men because the woman is exempted from criminal liability under this section, although she is equally culpable as the man is.

    The Supreme court held that section 497 is constitutionally valid under the article 15(3) and women could only be a victim of adultery and not a culprit under this section.
     
  2. Sowmithri Vishnu v. Union of India
    In this case The Supreme Court observed that the woman should not be treated as aggrieved party and become a culprit in crime of adultery as it is a crime performed by one against another man. Neither the husband nor the wife can prosecute each other in case of adultery as it breaks the sanctity of marriage. Further, the court held that unmarried woman should not be prosecuted for adultery but if an unmarried man enters into a sexual relationship with a married woman, he would be held liable for punishment under Section 497 of IPC.
     
  3. V. Revathi v. Union of India
    Here the supreme court observed that not prosecuting a woman is a “social good” as it protects and makes purity of marital bond unscathed. section 497 acts as a “shield rather than a sword and doesn’t infringe any right of men.

The Supreme court judgement of 2018
All of the above three judgments were overruled by the judgment delivered by a constitutional bench headed by Chief justice Deepak Mishra, in the landmark case of Joseph Shine v. Union of India.

CJI Justice Dipak Mishra made observation that “Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” the most essence observations which the Supreme Court had made while dealing with the case was that the current law on adultery objectifies women and makes them inferior to men thus making them lose their individuality.

Justice D.Y. Chandrachud one of the five members of the ruling bench said “Physicality is an individual choice,” The law was based on the concept that a woman loses her individuality once she is married, he said, “adultery is a relic of past”.

The decision apprehended the subsequent effects:
Section 497 is Constitutionally invalid, Section 497 of Indian Penal Code takes away a female of her independence, self-respect moreover privacy. It multifaceted the infringement on her exact right to life and personal liberty by accepting a concept of wedding that undermine factual impartiality.

Sexual independence is a worth that is an essential part furthermore collapse inside the realm of individual independence in Article 21 Constitution of India. Admiration on behalf of sexual independence is recognized simply while in cooperation the spouses pleasure each other through self-respect and equal opportunity.

This segment is a rejection of substantive impartiality in with the intention of it strengthens the idea that women are disproportionate contributors in a wedding, not sufficiently expert of liberally accepting to a sexual action inside a lawful category that looks upon them as sexual possessions of their partner. In this method, it is violation of Article 14 of the Constitution of India.

It is founded on sexual category stereotype furthermore infringe the non-discrimination section of Article 15 of the Constitution of India.

Above and beyond, the importance on the ingredient of participation or the permission of the male partner equivalent to the subordination of the female partner.

Conclusion
Section 497 consisted loopholes in it despite being a provision that protects the institution of marriage. It would have been balanced if the amendment were made instead of striking down the section198 of CrPC. It must be clearly understood that the removal of this provision does not necessarily mean that there are no legal consequences for engaging in adultery. The supreme court has just struck down the criminal remedy now Adultery has a civil remedy in law, which is divorce.

Written By: Hemlata Singh - law student at University School Of Law and Legal Studies, GGSIPU.

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