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Decriminalization Of Adultery

Adultery means voluntary Sexual Intercourse by a man or woman with someone else's spouse other than their own. The Legal definition of Adultery may differ from country to country. The term Adultery is derived from the Latin word Adulterium which means sexual intercourse with a person other than one's spouse. The act of Sexual Intercourse with someone else's spouse without their consent is known as Adultery.

In many countries, the act of Adultery is criminalized whereas in a few countries the same act is no criminal offense, but the act of Adultery makes a ground for Divorce by the other spouse who was not involved in the act of such Adultery. Adultery is considered an immoral act as it violates the social norms of society. Generally, Adultery is condemned everywhere in the world and these types of immoral acts often attract punishment which may differ from country to country.

In India, for the last 162 years, Adultery was considered to be a crime but after the verdict of the landmark case of Joseph Shine v. Union of India[1] delivered by the Supreme Court of India in the year 2018 which decriminalized the offense of adultery i.e. under section 497 of IPC along with Section 198(2) of the Criminal Procedure Code, 1973 dealt with how a complainant can file charges for an offense committed under sections 497 and 498 of the Indian Penal Code, 1860. Now the act of Adultery merely remains a civil offense rather than a criminal offense.

The offense of Adultery was defined under sec 497 of the Indian Penal Code, 1860 which states as:
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 offense of rape, is guilty of the offense of adultery.

The punishment of such offense was punishable with imprisonment of either description for a term which may extend to five years, with a fine, or with both. The wife shall not be punishable as an abettor in such a case.

Section 497 of the Indian Penal Code, 1860 criminalized adultery by punishing the person who commits sexual intercourse with another person's wife without that person's consent or connivance.

Ingredients of Adultery [2]

To constitute the offense of adultery, the following must be established:

  1. Sexual intercourse between a married woman and a man who is not her husband;
  2. The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;
  3. Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;
  4. Sexual Intercourse with the married woman must take place without the consent or connivance of her husband.

Why only, Men?

In India, the offense of Adultery is only against a man and not a woman. Adultery is an act of sexual intercourse involving 2 people with each other's consent but still, the law of India criminalizes the act of only a man why so?

The Answer to this baisness is simple, at the time of enactment of the law that is before the constitution in the year of 1860 and before, polygamy was deep-rooted in the Indian society where a man used to have extra-marital affairs. Women were victims of such offenses as Adultery which was performed by men. Often women were deprived of the love and affection from their husbands that they used to seek from others. Therefore, the provision was enacted to prevent the man from having sexual relations with other married women.

Changing social conditions
In today's society, Polygamy is an offense and considered immoral and illegal in every religion except the religion of Islam. Today if a person marries anyone else other than his wife during the term of their marriage then he will be prosecuted for bigamy and not only that the second marriage will cease to exist and will be considered to be Void-ab-Initio i.e.

Void from the very beginning. Unlike in the past, wives are not deprived of the love and affection from their husbands and they can hardly maintain any extra-marital affairs with someone's wife. But still, exceptions are always there and for such exceptions, the legal remedy for women is always there which was lacking in the past.

Adultery as a ground for Divorce

In a marriage, adultery is considered to be an immoral and evil practice in the eyes of society. In a marital relationship if one spouse commits the act of adultery then it will become ground for divorce for the other spouse as marriage is all about love, affection, commitment, and loyalty. Loyalty plays a vital role in a marital relationship, Husband and Wife both should remain loyal to each other.

When any spouse commits the act of Adultery then that person is considered to be not loyal to the other spouse and the other spouse can file an application for divorce in the family court on the ground of the other spouse committing adultery [Section 13(1)(i) in The Hindu Marriage Act, 1955].

Joseph Shine v/s Union of India

A 5 judge bench of the Supreme Court on 27th September 2018 led by then chief justice of India Deepak Mishra with other four Supreme Court judges are Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar, and Justice Indu Malhotra held section 497 of Indian penal code and section 198(2) of Criminal procedural code to be unconstitutional.
Article 14 of the Constitution of India deals with the right to equality and section 497 of the Indian Penal Code, 1860 only penalizes men and not women, so section 497 is not in accordance with constitutional provisions and is considered to be manifestly arbitrary.

Article 21 of the Constitution of India deals with the protection of life and personal liberty and section 497 of the Indian Penal Code, 1860 treats a woman as personal property of the husband, it is considered unconstitutional as it goes against the dignity of the woman. Article 15(1) of the Constitution of India prohibits the State from discriminating on grounds only of sex. The offense of adultery is considered to be against the husband and not the wife. The provision is discriminatory and therefore, violates Article 15(1) of the Constitution of India.

Chief Justice Deepak Mishra said condemning section 497 of IPC, 1860 that "husband is not the master of a wife". He further observed that "any system treating a woman with indignity invites the wrath of the Constitution that is why adultery is no longer a crime".

Justice R.F. Nariman said "ancient notions of man being perpetrator and woman being victim no longer hold good". Under adultery law, only a man faces consequences and not a woman, it goes against article 14 of the Constitution of India, also against article 15 of the Constitution of India which says no discrimination on the ground of sex.

The bench also observed that these sections are wholly outdated and have outlived their purpose. Therefore, on 27th September 2018; section 497 of the Indian penal code and section 198(2) of the Criminal procedural code was struck down and declared unconstitutional by the highest court of India.

Decriminalization of Adultery is a historical decision by the Supreme Court of India. A law of discrimination that was violating various provisions of the constitution of India, which was still prevalent after the 70 years of independence, was ultimately scrapped. Repealing adultery from the penal code was a big step toward a progressive society.

The law of adultery was not only discriminating the punishment towards Man but also was depriving the dignity of women in our society. There is no doubt that adultery can be a ground for divorce which dissolves the marriage. According to me, Adultery as a civil wrong is enough, rather than posing it as criminal wrong.

  1. 2018 SCC OnLine SC 1676

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