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Adultery: A Reason or The Symptom of Broken Marriage

Adultery occurs in the head long before it occurs in the bed

Introduction To Adultery
The word ‘adultery’ is derived from the latin word ‘adulterium’. The ideology behind this word is similar to ‘adulteration’ which means ‘the action of making something poorer in quality by the addition of another substance’. Adulteration in any sense and in any thing is always regarded as harmful. Adulteration in food or drugs is vicious to our health and adulteration in relationships may put a question mark on them.

So, in layman’s language it will not be wrong to say that with reference to the above meaning of adulteration, adultery is basically about willful addition of external person into the wedlock in order to spoil it. Commonly it is also known as ‘extramarital sexual relationships’.

Extramarital Sexual Relationships, as per this term, ‘a person gets into a sexual intercourse with a person who is not his/her spouse’.

Current status of adultery law and facts related to the case
Joseph Shine V. Union of India
The Supreme Court has declared that section 497 is unconstitutional. Adultery is not a crime. This judgment has overturned the previous rulings by the Supreme Court on section 497.

Adultery is no longer a crime. The judgment by a five-judge Supreme Court bench headed by Chief Justice Deepak Mishra has overturned the previous three rulings on the matter.

Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter's wife.

The law states that only a man can file a case of adultery and that too against a man with whom his wife has allegedly slept with. So, in essence, a woman can neither file a case of adultery, nor can she be prosecuted on the ground of adultery. This cuts gender discrimination both ways, that is, it discriminates against men and women.

It discriminates against men because while they can be prosecuted for the crime of adultery if they sleep with a married woman, a woman cannot be prosecuted for sleeping with a married man.

This law on adultery discriminates against women, too, because while a married man can file a case of adultery, a married woman cannot file a case against the husband or against the woman with whom her husband slept.

The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory.

Grounds on which adultery law was challenged

These are some main grounds to revisit the law as follows:
# Law discriminates against men.
# When sexual intercourse takes place with the consent of both parties, there is no good reason to exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and grants immunity to wife by treating her as a victim according to prevalent social norms. Violation of Article 14, 15 and 21.
# Arbitrary distinction is made between man and woman without any reasonable grounds.
# Not in consonance with changing Social Conditions.
# Today both women and men move shoulder to shoulder with each other. So any biasness in the law towards any gender is like not evolving the law with the ever changing society.
# Promotes subordination of women.
# The section encourages the notion of treating wife as a commodity under the subjugation of husband. It harms the individual independent identity of women whose prosecution depends on husband’s consent.

Previous citations that challenged the validity of section 497 of IPC

1) Yusuf Aziz versus State of Bombay
# The adultery law first came under challenge in 1951 in the Yusuf Aziz versus State of Bombay case. Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.

# The dominant argument in the court hearing was that Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship. It was also argued that adultery law gave a license to women to commit the crime.

# Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.

# Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is commonly accepted that it is the man who is the seducer, and not the woman." The Supreme Court stated that women could only be a victim of adultery and not a perpetrator of the crime under Section 497.

# The argument was made to reject the contention that the adultery law was discriminatory against men. However, despite declaring women as "victim only" in the occurrence of the crime of adultery, the court did not allow them to file a complaint.

2) Sowmithri Vishnu versus Union of India
# The next important judgment regarding adultery law under Section 497 came in Sowmithri Vishnu versus Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC.

# In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery.

# The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man.

# The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.

# The argument was that if an unmarried man establishes adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in a sexual intercourse with a married man, she would not be held culpable for the offence of adultery, even though both disturb the sanctity of marriage.

# The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.

3) V Revathy versus Union of India
# In the next big case- V Revathy versus Union of India of 1988--on adultery law, the Supreme Court held that not including women in prosecution of adultery cases promoted "social good". It offered the couple a chance to "make up" and keep the sanctity of marriage intact.

# The Supreme Court observed that adultery law was a "shield rather than a sword". The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.

# Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law.

# The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral.

Timeline of Adultery Case In Court

The Supreme Court heard the matter on adultery for six days and reserved the judgment on August 8, 2018.

# October 10, 2017:Joseph Shine, petitioner, filed a plea in Supreme Court challenging the constitutional validity. It stated Section 497 as "prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution".

# December 8, 2017:The top court agrees to examine the constitutionality of the law.
# January 5, 2018:The apex court refers the matter to a five-judge Constitution bench
# July 11, 2018:Centre informs the court that striking the law down will destroy the institution of marriage.
# August1, 2018:The Constitution bench commence the hearing the final arguments.
# August 2, 2018:The Supreme Court says adultery as a penal provision is violativeof the right of equality under the Constitution.
# August 8, 2018:Centre favors the retention of penal law on adultery, says it is a public wrong which causes mental and physical injury to the spouse, children and the family. The apex court reserves the judgment.
# September 27, 2018:The apex court strikes down the penal provision and terms Section 497 as unconstitutional.

Articles Involved
Article 14 (Equality before law)
# Article 14 says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

# Article. 14 is available to any person including legal person viz. statutory corporation, companies, etc.

# Article. 14 is taken from the concept of equal protection of laws has been taken from the Constitution of USA.

# The concept of the rule of law is a negative concept while the concept of equal protection of laws is a positive concept.

# The concept of equality before the lawis equivalent to the second element of the concept of the ‘rule of law’ propounded by A.D. dicey, the British jurist. But certain exceptions to it are, the president of India, state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and special privileges.

Article 21 (Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.)

The right to life and personal liberty is guaranteed by the Indian Constitution in Part III under the category of Right to Freedom (Articles 19-22). The right to life and personal liberty in accordance with the procedure established by law is guarantee by Article 21 of the Indian Constitution. The right is available to both citizens and non-citizens.
The scope of Article 21 have been expands over the years through judicial pronouncements over the years.

However, in the Maneka Gandhi Case (1973)the Supreme Court overruled its judgement in the Gopalan Case by widely interpreting Article 21. It stated that protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action by introducing the American concept of ‘due process of law’. It pronounced the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of a man.

Article 15 (Prohibition of discrimination on grounds of religion, race, Caste, sex or place of birth.)

The Concept of Article 15

The concept and purpose of this Article is to prevent the government from making discrimination on the basis of religion, race, caste, sex, or birth place. One of the clauses clearly states that no citizen shall be subject to “any disability, liability, restriction or condition” on the basis of religion, race, caste, sex, and place of birth. Their access to public properties like shops, restaurants and entertainment hubs should not be restricted on grounds of religion or caste. The Article also guarantees special provisions for women, children and socially disadvantaged classes.

Benefits of Article 15

The clause (3) of the Article empowers the government to make special laws/ provisions for women and children. It is considered one of the earliest legislation that emphasized on gender equality and women empowerment.

In Article 15 (4) and (5), the Constitution gives government the power to make special provisions “for the advancement of any socially and educationally backward classes of citizens.” This holds true for the scheduled castes and the scheduled tribes as well. Such ‘protective discrimination’ is a step taken to eliminate inequalities existing in society. Moreover, the reservation of OBCs under Article 15 was aimed at providing equal opportunities in education and raising social and economic levels of those who are lagging behind.

Amendments to Article 15
This anti-discrimination law made its first exception by including a Clause (4) during the 1st amendment in 1951. With this amendment, the article made way for reservation for SCs and STs and other backward classes to benefit them academically, socially and economically.

It’s important to note that Clause (5) of Article 15 was originally not a part of the Constitution. It was introduced during the Ninety-Third Amendment Act in 2005. There was widespread protest over the central government’s decision to include this clause. Even stronger opposition came from the non-OBC students, which led to the emergence of several writ petitions challenging the Amendment.

Sections Covered Under This Case
Section 198(2) of code of criminal procedure, 1973.(prosecution of offences against marriage)

According to Section 198(2) of the Code of Criminal Procedure, no person other than the husband of the woman shall be deemed to be aggrieved by any offence of adultery punishable under Section 497 and any offence enticing, etc., a married woman punishable under Section 498 of the Indian Penal* Code. However, in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed, may, with the leave of the Court, make a complaint on behalf of the husband.

Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband wsa found to be in an adulterous relationship.

Section 198 of the Code of Criminal Procedure, 1973, says only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her.

Section 13(1) of the Hindu marriage act, 1956 (adultery as the ground of divorce)

Divorce through Adultery

Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of Hindu marriage act,1955 which states that any marriage before or after the commencement of this act shall be dissolved by a decree of divorce on the ground that the other party had voluntary sexual intercourse with any person other than his or her spouse after the marriage.

As per section 13(1) (i) of HMA both husband and wife are liable for the offense of adultery means if wife makes sexual relations with other than his husband then, husband can file case against his wife or if the husband makes sexual relation other than his wife then, wife can file case against her husband. One act of adultery is enough to constitute a matrimonial offence.

A single act of Adultery constitutes the ground. An attempt to commit adultery must be distinguished from adultery and will not have itself be a sufficient ground for judicial separation
Dennis v Dennis the court in this case asserted that “Adultery strictly speaking consists of sexual intercourse by one party to the marriage with some person other than the opposite party. Strictly speaking there has to be some sexual penetration though not necessarily a complete sexual act. Mere indecent behavior is not enough though intensity thereof would be a pointer or indicator as to whether the adultery took place at some other point of time”.

As per Hon'ble former CJI Mishra
Referring to other countries like China, South Korea, Japan where adultery is no longer a crime, CJI Mishra said, "Adultery can be ground for any civil wrong. There can't be any social license that destroys the matrimonial home, but adultery should not be a criminal offence." He also declared Adultery unconstitutional. Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage. Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abatement to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step.

And according to him Adultery is a symptom of broken marriage and not the reason of broken marriage.

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