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In our country if we look at the institution of marriage then we'll realize that morality is attached to it. Loyalty is one of the fundamental pillars of this institution. Spouse should be loyal to each other. If after marriage spouse have multiple sexual partners then that loyalty is destroyed. Morality is inner discipline.

Problem arises when one partner does adultery. Adultery is when a partner has sexual intercourse with another person and the third person has full knowledge that the woman is married then in that case husband can file case against the third person but not against his wife.� If we reverse the case, if the husband have sexual intercourse with another women then the wife can't file complain either against the husband or the women. So we can see that the law is Pro-Man.

Earlier the law of adultery in India was dealt within Section 497 of the 158-year-old IPC says:

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.

The offence of adultery entailed a maximum punishment of five years, or with fine, or both. Section 198(2) the criminal procedure code allowed a husband to bring charges against the man with whom the wife has committed adultery. It gave exclusive right to the husband to file case against the third person.

A five-judge Constitution bench was unanimous in holding Section 497 of the Indian Penal Code, dealing with the offences of adultery, as unconstitutional and struck down the penal provision.

The bench comprising Chief Justice DipakMisra and Justices RF Nariman,A M Khanwilkar, DY Chandrachud and Indu Malhotra held that Section 497 is unconstitutional. The CJI and Justice Khanwilkar said:
We declare Section 497 IPC and Section 198 of CRPC dealing with prosecution of offences against marriage as unconstitutional.

Background Of Adultery

The Common Law has made distinction between illegitimate sexual relation of a married woman and that of a married man and only the women were considered to be involved in adultery. Therefore, adultery was defined as having a sexual intercourse with 'another man's wife'. A married man's sexual intercourse with a single woman was not considered as adultery.
Justice Rohinton F Nariman said almost all ancient civilisations punished the sin of adultery and Hammurabi's Code of 1754 BC prescribed death by drowning as punishment for the offence, be it by the wife or the husband.

In India, too, Manusmriti provided for punishment for those addicted to intercourse with other men's wives by punishment which cause terror, followed by banishment, Justice Nariman said.�
Justice Nariman said in 17th century England, adultery was only a ground for divorce but became a capital offence in Cromwell's puritanical England in 1650, which was nullified as soon as King Charles II came back to restore monarchy. He said in the first draft of IPC by Lord Macaulay, he had refused to make adultery a penal offence.

In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St Paul's letter to the Corinthians. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words let him who has not sinned cast the first stone, he added.

Narrating the adultery scenario in India, Justice Nariman said:

The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955.

It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time.

Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the Hindu Code, so to speak, a Hindu man can marry only one wife, and adultery has been made a ground for divorce in Hindu law.

In Common law, although the Roman law concept of adultery may have been influential, adultery was not considered as a crime. However, a husband who wanted a divorce through Parliament had to establish a criminal action first based on his wife's adultery. The civil suit for damages was only accepted from a husband. A wife could not bring suit for damages against an adulterous woman because of her illicit intercourse with her husband.

Joseph Shine V. Union Of India

In October 2017, Joseph shine filed public interest litigation under article 32 of the constitution. The petition intended to challenge the constitutional validity of adultery under section 497 of IPC read with section 198(2) of CrPC. This case is a very important landmark case. The date of judgment is 27 September 2018, when the constitutional bench of honorable Supreme Court Struck down 158 year old Section 497 of IPC which criminalizes the adultery.

The issues were, whether Section 497 of IPC and 198(2) CrPC are unconstitutional, illegal and violative of fundamental rights?
The arguments put before Court were that the background in which section 497 was inserted is no more relevant in present. Section 497 of IPC� and� 198(2) of CrPC both discriminate against women and thereby violates article 14, 15 and 21.

It violates Article 14 by not granting equality before law as the women couldn't file complain against the another women or her husband. It violated Article 15 as well as it oppressesthe right of women and is not a beneficial legislation.

It violates Article 21 as right to privacy includes the right of two adults to enter into a sexual relationship outside marriage. The said provision is also hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of India and Ors,. Since sexual privacy is an integral part of 'right to privacy.' Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of Constitution of India.

And it excludes women from prosecuting anyone engaging in adultery.
The judgment has put forward a good initiative as it struck down section 497 of IPC and section 198(2) of CrPC as both the sections are based on discriminative classification against women.

The provision is being discriminative in two ways:

  1. Firstly it does not give woman the right to prosecute an adulterous husband;
  2. Secondly it does not punish a woman in adultery not even as an 'abettor'.
The court in this landmark judgment however clarified that adultery will be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under section 306 IPC.'

The Supreme Court unanimously struck down Section 497 of Indian penal code that makes adultery a punishable offence. Court's stand was that the law was unconstitutional and as it violates Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).

In conclusion one can say that the repealed sections 497 of IPC and 198(2) of CrPC were based on discriminative classification. When we look at the background in which the provisions were inserted, it was intended to ameliorate the condition of women in society. Earlier the women were deprived of many benefits but our constitution has provided for equality before law and� it talks about equality of opportunity also. This section was against the spirit of the out constitution and therefore court held it unconstitutional.

The judgment was criticized because it would affect the stability of institution of marriage in our society but the court has clearly pointed out that when we say that morality is attached to marriage then we must understand that morality in marriage is a private matter of spouse and the state mustnt interfere in it. Also, when two people enter into sexual intercourse with their consent then there can be no ground to file case in such matter. The remedy is available to aggrieved spouse to seek divorce.

Supreme Court has wisely decriminalized section 497 as it is a matter of private morality and state should not interfere in it. Section 497 to be scrapped on these grounds and pointed out that �using laws to enforce faithfulness in marriage is as absurd as making it legally mandatory for husband and wife to love each other�. The Judgment is good initiative as it has declared adultery as unconstitutional and denied the burden of patriarchy. The Britishers introduced the Indian Penal Code. In their own country they repealed this provision in 1857.

The Britishers introduced the Indian Penal Code. In their own country they repealed this provision in 1857. Justice Chandrachuds judgment in particular is clear that denying sexual autonomy to women is unconstitutional and unacceptable. We hope the government will now show good sense in accepting the verdict and not seek a review.

Finally, the judgment is actually a welfare decision and contributes to the welfare of women in our Indian society dominated by patriarchal rules.

Award Winning Article is Written By:�Sapna Kumari

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Authentication No: AG024335288953-30-820

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