Adultery is a phrase that is gender-neutral, meaning that it can be committed by
both men and women. The perception about man being the predator and seducer
always made him the guilty even though the women is the abettor . Adultery is a
difficult crime to prove in a court of law since it requires proof beyond a
reasonable doubt that the people accused of adultery engaged in sexual
intercourse. So this provision served only as a tool for harassment.
Live-in relationships are frowned upon in society, but they are not considered
unlawful as long as they are in the nature of marriage, that is, both
individuals are of marriageable age and neither has a living spouse. Adultery is
prohibited by law. It is a recognised reason for divorce, as well as a form of
Adultery Law In India:
Adultery was previously penalised under Section-497 of the Indian Penal Code,
making it a criminal offence. The legislative aim behind the enactment of
Section 497 of the IPC, on the other hand, is substantially different from what
opponents believe. In 1847, the Law Commission of India was tasked with
rewriting the Indian Penal Code.
The commission, when redrafting the penal code,
made only men accountable for adultery. This was done in consideration of the
condition of women at the time, and a duty was placed on the law to defend
women's interests. On the other hand, critics contend that section 497 of the IPC attempts to impose and intrude in the lives of two consenting individuals.
Section 497 provides: Whoever has sexual intercourse with a person who is and
whom he known 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 a case the wife shall not be
punishable as an abettor.
Miscalculation Of Adultery Law In India:
As then-CJI Dipak Misra pointed out, the law of adultery is discriminatory since
it treats one of the adultery parties as a victim and the other as a criminal.
There is no reason for doing so, and it is also a violation of Article 14 of the
Indian Constitution because it leads to nonsensical gender categorisation.
Other features of the adultery statute are problematic, such as the fact that it
allows a married man to blame an outside agency for the breakup of his marriage.
If the wife chooses to sleep outside the marriage, the pair must analyse the
marriage's weakness rather than blaming an outsider. It would make more sense if
the couple approached a court for a mutual divorce rather than blaming a third
party for their marriage's demise and putting him behind prison.
Need Of Changes In The Law Of Adultery In India:
In order to make recommendations for changes to the law dealing to adultery in
India, it is necessary to first examine the definition of adultery. The wording
"wife of another man" appears in the second phase of section 497 of the IPC,
indicating that it is gender discriminatory because it implies that a married
man having sexual intercourse with an unmarried woman is not guilty of adultery.
The inclusion of adultery within the chapter titled "offences relating to
marriage" implies that the sanctity of marriage is not only the responsibility
of one spouse, but rather a joint responsibility of both. However, the
terminology used in the section's phrasing distinguishes between husband and
wife as marital partners, stating that a "husband of another woman" who is a
female companion in adultery is not accountable for the wrongdoing.
Disagreement With The Law:
The legislation was originally challenged in 1945 by a petitioner who asked why
a woman could not be penalised for committing adultery and claimed that such a
"Exemption was discriminatory."
The Supreme Court thereupon dismissed the petition.Similar petitions, including those challenging the law's constitutional
legitimacy, have been denied by the Supreme Court since 1945. Similar adultery
pleas were dismissed by the court in 1985 and 1988. The judge's philosophy was
based on the belief that:
"marital stability is not an ideal to be rejected." In
one of the cases, a married woman sought the court's permission to file an
adultery charge against her husband's unmarried lover. The court, in resolving
this case, referred to the plea as a "crusade by a woman against a woman."
One Who Challenged The Law:
Joseph Shine, a 41-year-old non-resident Keralite, filed a Public Interest
Litigation under Article 32 of the constitution, challenging the legitimacy of
the crime of adultery, as defined by section 497 of the Indian Penal Code. Shine
used American poet Ralph Waldo Emerson, women's rights activist Mary
Wollstonecraft, and former UN Secretary General Kofi Anna liberally in a 45-page
petition to underline his views on women's rights and gender equality.The ruling
BJP, on the other hand, is opposed to the petition and believes that adultery
should remain a criminal offence.
Decriminalization Of Adultery:
On September 28, 2018, the Supreme Court unanimously threw down Section 497 of
the Indian Penal Code, which dealt with adultery. Justices Deepak Misra, Justice
Nariman, Justice Chandrachud, and Justice Malhotra made up the bench at the
time. The court overturned a 158-year-old colonial-era statute that it claimed
regarded a woman as a man's property. It was the second time in a month that the
Supreme Court overturned a colonial-era statute. It had earlier overturned a
157-year-old colonial law in India that prohibited gay sex.
What Needs To Be Done?
The fundamental issue of the law with regards to adultery should not be whether
or not marital faithfulness is right or wrong, or whether or not adultery
promotes sexual freedom. The key problem should be whether a state can or should
supervise an adult relationship that is too complex, sensitive, and personal,
and if it is appropriate for the courts to have complete control over particular
matters of spouses.
It remains to be seen where the current Supreme Court opinion dispute will lead
us. Adultery is still a legal reason for divorce, notwithstanding the Supreme
Court's opinion that the legislation incorrectly considers women as the property
of males and violates fundamental rights. As a result, it might be considered as
something that imposes a fair restriction, implying that there are legitimate
limits to sexual liberty.
As a result, it can be inferred that the legal system
should not restrict who one should sleep with, but rather the process of divorce
if one of the two parties violates the marriage's sacredness. Furthermore,
criminalising shattered trust in a marriage does not result in a couple
returning to a happy life, nor does it affect society's social behaviour.
Written By: Kratika Singh
Law of Adultery in India