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A Brief Analysis Of Relationship Between Right To Equality With Adultery

The concept of Right to equality means 'that there is a right of every individual to be treated equally in every social, economic, political and religious aspects which are required for the smooth functioning of the society. In other words, no individual shall be treated differently and discriminately based on race, caste, gender and religion, this is known as ' equality before Law'.

The Law should be framed in such a manner that, if any individual doesn't get the same privilege in comparison with the ordinary people, then they have the liberty to gain some special privilege in a discriminatory manner so that they can acquire the similar treatment in similar circumstances differently in order to exist in the society, this is known as ' Equal protection of Laws' Article 14 of the Indian Constitution states that 'the State shall not deny to any person equality before law and the equal protection of Laws.

The word 'Adultery' derived from the French word 'adulteroum' which means 'corrupt'. The concept of Adultery is that, 'When the Husband or Wife of the marriage involves in a consensual sexual relationship with any person other than their respective spouses which is considered as socially, morally, religiously and legally wrong.

According to Section 497 of the Indian Penal Code, 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.

The evolution of the concept of Marriage with Right to Equality:

We humans are the part of the society where we value the morality, dignity before anything else, that is the reason why we are very different from other species and animals. During the primitive age, due to narrow mental development, the male and female used to have sexual relationship with each other randomly as a result when the child is delivered from the womb of the mother, he or she is getting the maternal identity but they were under the crisis of paternal identity.

With the psychological and mental development, humans discovered usage of fire, agriculture and sense of ownership came within the minds of them.

As a result, humans can identify whether something belongs to them or not. So, to identify the paternal identity of the child the concept of marriage has been discovered. The concept of marriage regularizes the sexual activity between the male and female which shows moral and ethical in the eyes of the society. So, the child which takes birth from such relation is declared as the legitimate child.

Now we already know that marriage is a sacramental ceremony where the male and the female give consent to each other to live together and takes responsibility of each other and their child in mental, physical and financial manner.

The human psychology says that wherever there is a sense of responsibility there is a sense of ownership which works simultaneously, as result with the solemnization of marriage a sense of 'responsibility' and 'right' comes within the mindset of the husband and wife. As a result, marriage became one of the important fundamental rights, violation of the same will significantly destroys the morality and dignity of an individual to survive in the society.

Marriage and Adultery:

The right of marriage has legalised and organised a pure relationship and a sexual relationship between the husband and wife, so that the child delivered from the mother's womb gets his patriarchal identity but if either of the spouse involves in a sexual relationship with a third person after the solemnization of their marriage which is impure to the marriage then such act would result to violation of their matrimonial rights and responsibilities towards the other spouse.

The child takes birth from such relation will be identified as an illegitimate child which is not the legitimate child of the both the spouses. Such act shall not be entertained by the law, and shall penalise the husband or the wife accordingly.

Similarity between Right to Equality and Adultery according to the current structure of the Indian Law:

The offence of adultery in section 497 of IPC remained criminalised where the section implies that only a man can commit the act of adultery and only the man is punishable under this offense and the women is exempted from punishment even if she is an abettor. Until the landmark judgement of the Joseph Shine vs Union of India (2018), where the Supreme Court has decriminalised the said offence and has declared the same as the one of the grounds for plea of divorce in favour of the husband and wife against one another.

The court has reasonably applied his mind in this case by using the concept of reasonable classification and the doctrine of intelligible differentia and removed the gender disparity mentioned in the previous section and recreated the act of adultery in a balanced way so that both the parties can claim the remedy against the other.

Though the Supreme Court has reformed the offence of adultery in a very unbiased and liberal way, but it failed to see that such change will result to more increase of the commission of the offence, significantly the rate of divorce will also increase, family bonding from both the sides of husband and wife will slowly disappear and it will erase the morality and dignity which is required for the existence in a civilised society.

A marriage is a sacramental and a religious act, where both the spouses promise themselves in the name of God that will remain loyal and responsible towards each other, but due to the liberalisation of act of adultery, spouses are forgetting their matrimonial duties and losing the sense of morality, dignity as a result it is becoming harmful and dangerous for the upcoming generation too.

By keeping the principle of 'Right to Equality', the offence of adultery should be criminalised and such offence should make liable both the husband and wife even if both the parties are abettors.

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