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Implications of De-criminalization of Adultery

Adultery was considered as the criminal act in India before 2018. Sec. 497 defines and punishes the act of adultery. Sec. 497 of IPC, 1860 indirectly protects the right of husband against another man who cohabits with the former's wife. Earlier, adultery was considered as both immoral and illegal act. This was the offence where a man files complaint against another man. Female have been exempted from punishment under sec. 497.

Meaning thereby, neither she can be prosecuted as an abettor nor as an offender. If we simply read sec. 497 of IPC, it says that whoever indulges in sexual intercourse (not amounting to rape) with the person whom the former knows or has reason to believe that the latter is the wife of another man, without taking husband's consent, is guilty of committing the offence of adultery. The offender shall be punished with imprisonment maximum up to 5 years or with fine or both.

It is also mentioned in sec. 497 specifically that wife will not be punished as an abettor. The only option left with husband is to take divorce from his wife who indulged in the offence of adultery. Further on, this provides an exception in cases where married man consummates with a widow, with the husband's consent, unmarried girl or divorced woman. In such cases, adultery is not said to have committed.

But, in 2018, with the epic judgment given by the highest Court of country in Joseph Shine case, sec. 497 was eliminated from the Indian Penal Code. This historical judgment of Supreme Court threw away the 150 years old Adultery law in India, pronouncing that husband is no more master of his wife. The judgment was upheld by 5 bench led by CJI Deepak Mishra, who gave his opinion that adultery law was mainly discriminative in nature as it presumes one party as victim and another party as accused.

There is no reasonable cause behind doing such discrimination ends up in infringement of Art. 14 as it created a sense of biasedness between two genders. Further, the court held that adultery empowers husband arbitrary control over his wife. It is very unethical that if husband consents the consummation of his wife with some other man, it will not be considered as adultery, which definitely violates the dignity of women.

But at the same time, decriminalizing the act of adultery had created other problems. Marriage is considered as sacramental and creates a bond of trust between the two partners. It is necessary in smooth functioning of society. Adultery damages a caring and stable environment which is created between the two married couples. Legalizing adultery is simply promoting extra marital affair.

Having extra- marital affair is not a tradition in India and Indian society does not accept the practice of adultery and considered it as an immoral act. Adultery is a most common practice in western world and no doubt we have tried our level best to adopt westernization and in this, we have been working against our Indian culture. No doubt, decriminalization of adultery from India by repealing sec. 497 is one of the landmark judgments and many intellectuals have welcomed it citing its positive effect but there are some equivalent negative implications also.

Meaning of Adultery

Adultery derived from the latin term ´┐Żadulterium' which means having extra- marital affair. It is deemed to be unpleasant in terms of religious, social, ethical and legal grounds. Adultery is a sexual act where both the parties indulging have consented. Adultery is a voluntary sexual act done between a married woman and another married or unmarried man. Adultery was a criminal act which punishes the third party which indulges in sexual intercourse with a wife of another man. The crime of adultery is not a crime against woman but a crime against husband.

Literally, adultery is an act of sexual intercourse between man with another women other than his own legally wedded wife. Adultery is not a continuous offence, so one single act of intercourse is enough to prove that adultery had been committed. For the offence of adultery, only third party is punished as he had violated the purity of marriage.

History of Adultery law in India

The origin of adultery laws is too old. The traces of harsh laws against adultery can be seen in the Greek and Roman laws, where this law was applicable only in if the females were married. This means that Roman and Greek laws allowed the sex between man and a slave or unmarried girl. In the backdate, the Code of Hammurabi (1754 BC), where in the 7th commandment of Old Testament of Bible, adulterous acts were being cuddled. It was believed that Jesus Christ detested the adultery and believed that even looking at females with a lustful feeling is a sin.

Judaism punishes both the male and female who got indulged in the adulterous act. Initially, the term was used by King of England, Henry VIII, so that he could get rid of his wife, Catherine Howard. Historically, if we see, then adultery was a serious public crime in many countries and offenders were punished with severe punishments like public hanging, mutilation, stone pelting by public etc.

As the long lasting culture of India does not allow such acts to be illegal as these are considered to be offences against marriage. Hindu Mythology never accepted adultery and considered it as a crime both from moral and societal perspectives. Having an extramarital affair by one spouse definitely refers to the breaking of trust of another spouse in the marriage and considered it as a sin. Due to inferiority of women in post vedic eras, Hindu Laws punishes only adulterous wife or female and not the husbands because of their status was equal to god.

Latter were given warning not to repeat the sin again. Many Indian manuscripts have also included various provisions punishing the act of adultery. The first draft by Law Commission of IPC in 1837 does not included adultery as an offence but, when Lord Macaulay was drafting the law of crimes i.e. Indian Penal Code, he was in favour of including adultery under Indian Penal Code, and this ideology of Macaulay was accepted by the legislature and included the adultery as a serious crime and prescribe punishment for the same.

Law against adultery in India before 2018 judgment

Before the 2018 verdict on decriminalization of adultery, it was considered as a criminal offence. Sec. 497 of IPC, 1860 contains the provision for punishing the adultery making it an offence. This means that adultery is a pre- constitutional law made prior to the commencement of Constitution. In the 20th century, females were considered as inferior to males, and husbands have the control over their wives.

At that time, there were no rights given to women which were independent to those of their male partners. Women were believed to be the private property of their husbands hence the adultery is made an offence committed against husband and thus only husbands were given the right to prosecute the third party. Besides being a criminal offence, adultery can also be taken as a ground of divorce under sec. 13 (1) (i) of Hindu Marriage Act, 1955.

Sec. 497 of IPC, 1860 had defined adultery as- Any person who indulges in voluntary sexual contact with another person knowing or believing her to be the wife of another person, then, the former will be punished for committing the act of adultery with imprisonment of not more than 5 years or fine or with both.

The provision under sec. 497 punished only the male offender who commits the offence of adultery with the wife of another person without latter's consent. It is very vague that the crime had been committed by both the third party and wife but only the third party will have to suffer. Even if the male who indulges in adultery is married, then his wife does not have the same right to prosecute the female, with whom his husband had done act of consummation. She was only left with the option to take divorce from her husband.

Basic Elements of sec. 497 of IPC

There were 4 basic elements which must be present to prove that act of adultery had been committed:

  1. Act of sexual intercourse must be committed with the wife of another man.
  2. Person committing the act of adultery had the knowledge that woman is the wife of another person.
  3. The sexual intercourse had committed without the husband's connivance.
  4. Such sexual intercourse shall be voluntary.
Exception is provided under sec. 497 where it is clearly laid down that wife will not be prosecuted for the offence of guilty. The wife was neither punishable as an adulterous party nor as an abettor. The punishment under sec. 497 is limited only up to the third party. Sec. 497 of Ranbir Penal Code (Jammu-Kashmir's separate law of crimes), before passing of State Reorganization Act, 2019, penalizes wife also as an abettor.

Adultery as a ground for divorce:

Adultery was not only considered as the criminal offence but also it affects the personal lives of spouses of the parties involved in the adulterous act. That's why Hindu personal laws also provided the right to victim to take divorce from his or her spouse on the grounds of adultery. Indulging in extra marital affair by any married person is deemed to be cruelty upon his or her legally wedded partner.

Sec. 13 (1) (i) of Hindu Marriage Act, 1955 says that if after the marriage solemnized, any person indulges in voluntary sexual intercourse with another person other than his or her legally wedded spouse, then the aggrieved party will be liable to take it a s a ground for divorce.

This section signifies that adultery can be taken as a ground for dissolution of marriage and judicial separation (under sec. 10 (1) of HMA, 1955). It means that still Hindu marriage law provides adultery as a ground for taking civil remedies. Even after the decriminalizing of adultery and repeal of sec. 497 from IPC, 1860, adultery is a valid ground for taking divorce.

Constitutional Validity of sec. 497 prior to 2018 judgment:

The constitutional validity of sec. 497 was a burning issue and always remained a matter of doubt. Several pronouncements were made by judiciary validating the law against adultery.

Yusuf Abdul Aziz V. State of Bombay (1954 SCR 930)
This was the first case which challenged sec. 497 of IPC, where the issue raised was that sec. 497 of IPC was unconstitutional as it violated Art. 14, 15 and 21of the Constitution. The Apex Court held that sec. 497 is not ultra vires under Art. 14, 15 and 21of Indian Constitution and it do not discriminate between the two genders as man is most likely to be the seducer and not the woman. Woman could only be the sufferer in adulterous act and not the abettor. The court held that state had power to made special laws favouring women under Art. 15(3) of Indian Constitution.

Smt.Soumithri Vishnu V. Union of India (1985 AIR 1618)
It was alleged that sec. 497 must be held unconstitutional for being in violation of Art. 14 and 15 on ground that it makes a gender differentiation as it allows the husband of women (indulged in adultery) to sue the third party but not provide any right to the wife whose husband had indulged in the adultery. Moreover, this section permits husband to have sexual relations with unmarried, divorced or widow women. But court rejected the arguments supporting allegations and held that just like husbands could not file allegations of adultery against their wives to protect the dignity of wives and purity of marriage, similarly, wives can also not prosecute their husbands.

V. Revathi V. Union of India (1988 AIR 835)
The Apex court held that not prosecuting the women is having a social concern behind it and giving second opportunity to married couples in order to protect their marital status. Court had observed adultery law as a cover instead of a sword.

Apart from this, 42nd Law Commission Report and Malimath Committee recommended the need for amendments in adultery law and making it a gender neutral.

Decriminalization of Adultery and reasons behind it:

After a long controversy and debate over the constitutionality of adultery laws, finally on 27th September 2018, in Joseph Shine case, the Highest Court of the country had repealed sec. 497 of IPC, 1860, decriminalizing the act of adultery.

Joseph Shine V. Union of India (2018 SCC Online SC 1676)
In this case, Petitioner Joseph shine, a Kerala based NRI filed Public Interest Litigation through advocate Kaleeswaran Raj, before Supreme Court under Art. 32 of Constitution of India, challenging the constitutional validity of sec. 497 along with sec. 198 (2) of CrPC, 1973 and plead to decriminalize the offence of adultery. PIL was filed before 3 judge bench led by the then CJI Mr. Dipak Mishra who transferred the case to constitutional bench consisted of CJI Dipak Mishra, J.J. A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman and Indu Malhotra.

All the judges gave their separate opinions regarding the issue and at last ordered to struck down sec. 497 of IPC along with sec. 198(2) of CrPC, 1973, on the ground that husband will not furthermore be the master of his wife. Sec. 497 prescribes the definition of adultery and its punishment. Sec. 198(2) of CrPC says that no person apart from husband of wife should be considered as the victim of the offence under sec. 497 and 498of IPC. The section gave the exclusive right to husband to bring charges against third party (i.e. his wife's lover). However, adultery will remain ground for seeking civil remedies like judicial separation, divorce, etc. the court find adultery laws as arbitrary.

Opinion of the Constitutional Bench

Ex- CJI Mishra had spoken his part and on behalf of J. Khanwilkar that adultery could not be and should not be considered as a crime, but will definitely be a valid ground in order is aggrieved husband or wife desires to divorce his or her spouse who indulged in adultery. CJI opined that if due to any legislation, subordination of any gender will cause then definitely, it would be unconstitutional in eyes of law.

According to J. Nariman, adultery laws have been violating equality and living a dignified life rights under Art. 14, 15 and 21 of Indian Constitution. Now, we have to finish the old existing custom of husband being ruler and wife being victim. J. Chandrachud opined that decriminalizing of adultery can be a step forward to reduce the effect of Patriarchy system and was in favour of gender equality.

Further on, review petition had been filed before Supreme Court on 25th June, 2020, 5 judge review bench led by current CJI Sharad A. Bobde. This Review Bench had also upheld the 2018 judgment, giving reason that there is no reasonable ground on which the review could be done and no solid proof in support of claims (made in review petition) that decriminalization of adultery will lead to disorder in sexual morality.

Positive Implications of Decriminalizing Adultery

Finally, the country's highest court had taken a historic step and scrapped out 150 year old law. Overall, SC had acknowledged the lackness of sec. 497 of IPC that it restricts the freedom of woman and her private life and is gender biased law. It had been a clear violation of her right to life. First of all, it makes a sense that women were the property of men.

With whom a woman should indulge in sexual intercourse will be decided by her husband. Meaning thereby, if her husband approves or consented to his wife's relationship with third party, it would not be considered as adultery which was a matter of concern which needed to be changed.

Sec. 497 of IPC read with sec. 198(2) of CrPC was the perfect example of arbitrariness of patriarchy system. The law discriminates between both the genders as in this offence where both the parties shave consented, one became the victim and other became the offender. Hence the law is in violation of Art. 14, 15 and 21.

Unlike the rights were given to husband of married woman to sue the male offender under sec. 497 (IPC) and 198 (2) of CrPC, adultery law restricts the wife of adulterer spouse not to action against another married woman (consented party in adulterous act). This is one step towards women's sexual autonomy should be given respect and to abolish gender stereotype law. Moreover, the law authorized the husband to put all the blame for his marital breakdown to an outsider.

he reason behind that why adultery besides of decriminalization had existing in the law books as a ground to take divorce is that it is more necessary for the married couples to know where is the lackness in their marriage and not to blame an outsider for the breakdown of their marriage. Marriage is based on trust and once the trust has been broken, the couples could take divorce with mutual consent.

Negative Implications
There are equivalent negative implications of decriminalizing adultery. According to some critics, criminalization of adultery is necessary for the smooth running of society. The act of adultery is not acceptable in our Indian culture and hence considered as an immoral act by society. In order to adopt western culture, we will be destroying our traditional institution of marriage. The adultery is legalized in western countries and due to this divorce rates are also higher.

We are also in the same race and in order to stop following the same trend, it is necessary not to promote extra marital affairs and thus adultery should be made a punishable offence. The adulterous act would definitely going to encourage extra- marital affairs which will ultimately lead to high level family conflicts.

Secondly, it would result in increased number of divorce cases which would ultimately effect the nourishment of child and his or her future. Sarcastic comments of society to the spouses of parties indulged in adultery, could even lead to increase in suicidal rates. This means that legalizing of adultery will not only result into breaking of matrimonial sanctity but also loss of an innocent life. Decriminalizing of adultery will not be a gender neutral law instead of that it will lead to exploitation of sanctity of marriage.

At last, I would like to conclude that decriminalizing of adultery is one of the historic judgments and may be accepted by many, but according to me it is one of the hysterical judgments in the history of Indian judiciary. Although the verdict had been pronounced with the view to insert positive implications, but somewhere, court had neglected its adverse effect.

Courts are expected to maintain the sacred bond of marriage between the couples but here, court had came forward with such a decision that itself increases a hope that the marriage will be broke out. The main objective of decriminalizing of adultery was to remove gender biased law and that husband could no more control the wife's autonomy and right of life.

But this will cause a negative impact by raise in number of divorces. Even the 42nd Law Commission Report had recommended making of certain amendments in sec. 497 of IPC instead of repealing it completely. I also had similar views that the Parliament should make certain modifications instead of legalizing the adultery as a whole.

This will curb the sanctity of marriage. I support the opinion of Supreme Court that wife should not be considered as a property of husband and thus he should not have restricts his wife's sexual autonomy. Legislature should make certain changes in sec. 497 to make it a gender neutral law in real sense. Sec. 198(2) recognizes the husband of the adulteress, as the person aggrieved and had rights to prosecute against the adulterer under sec. 497 of IPC, but not the wife of adulterer as aggrieved person.

Criminalization of adultery earlier had created a strong deterrence against commission of adultery but now decriminalization had eliminated this fear and led the external factors to impact the marriage institution. This had vast impact on children's future too as for better development of children, the most important thing required is both the parents and healthy environment which will not be there after the divorce.

Moreover, this will have a very bad effect on the minds of the children that either of their parents were having an affair elsewhere. Our legal system should not decide the one's sexual autonomy but must lay down regulations regarding the mechanism of separation in case if one of the couples had violated the purity of marriage. Thus, Parliament needs to have a look in the adultery verdict and correct the damages done by the latter.

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