ADULTERY

ADULTERY- NO MORE OFFENCE

Marriage should be honoured by all, and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral. -Hebrews

Saumya Raj

“You are as good as dead because of the woman you have taken; she is a married woman.” 

Genesis

The chief Justice Dipak Mishra in the case Joseph shine vs. UOI remarked that the beauty of the constitution includes “three important questions i.e. what act must punish, who to punish and why. With the progressing society the I, me and you” and “Any law which dents individual dignity and equity of women in a civilised society invites the wrath of the constitution”

The scope of criminal law has been questioned time immemorial, this questioning seeks to answer and norms there are a need to modification of the laws time and again. Similarly, just like any other statute, criminal laws are also subject to modification by amendments. This is vital change required in changing times and changing values. 

Keeping the above in mind, we need to also address the continues conflict between individual freedom and larger societal good. The individual freedom being sexual freedom and the greater societal good being the sanctity of the marriage institute. Fear of disturbing the dynamic social equilibrium has long been detrimental to the progressive nature of law.  Therefore, to counter this fear and its detriments, controversial opinions need to be given a platform and a voice even if it’s at the cost of destroying the fabric of society.

ADULTERY

Adultery means voluntary sexual intercourse of a married person other than with his spouse.  In most culture, both the man and woman are equally punishable. Before decriminalization of Adultery, adultery was essentially described under Section 497 of the Indian Penal Code to be, “ whoever has sexual intercourse with the person who is an 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” ” In other words, if a woman namely “X” is married to a man “Y”, and “X” has an affair with a man “Z”, then “Y” can bring charges against “Z”, but “X” will not be guilty. 

AN ANALYSIS OF THE ACT OF ADULTERY AND THE LAW IN INDIA

The offence is only directed to the outsider who violated the sanctity of the matrimonial home when the outsider was a man. The matrimonial home sanctity may be violated by outsider, woman but she is not punishable. Wife should also sue the female partner, who seduces the husband. The offence of adultery in IPC permits the husband to prosecute the paramour of his wife without giving any corresponding right to the wife to prosecute the husband when he has extramarital relations. In fact adultery is nothing but a civil wrong and should be viewed as a breach of trust

WHY WOMEN ARE NOT PUNISHED FOR ADULTERY?

Adultery didn’t punish women but it’s in the code because at the time the enforced law was enacted polygamy was deep rooted within the society and ladies shared the eye of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of affection and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. 

There was discrimination between husband and wife. It all comes down to the fact that men would have complete control over women. The law having been misused and abused over long period.

ADULTERY IN DIFFERENT SOCIETIES AND RELIGION

The facts are so historic, that the judgements have its reverberations in the socio religious political areas. The bible says, “You have heard that it had been said, ‘You shall not commit adultery. But I tell you that anyone who looks at a lady lustfully has already committed adultery together with her in his heart.” Jesus on another occasion freeing the lady who committed adultery and put a message to the earth, “Go and sin no more.” Gospel says, “Your adulteries and lustful neighing, your shameless prostitution! I even have seen your detestable acts on the hills and within the fields. Woe to you, Jerusalem! How long will you be unclean?”

The Hindu philosophy Manusmriti says, “Those men who are hooked in to intercourse with the wives of other men, the king shall banish after having branded them with terror-inspiring punishments.” The verse thus undoubtedly elaborates; When the king finds that a particular man is hooked in to having intercourse with the wife of another person,—he should ‘brand’ him,—by separating his nose, as an example ,—by means of ‘terror-inspiring’—sharp-edged weapons,—and then ‘banish’ him.

The Quran even have an equivalent coercive approach towards adultery like that in Bible or Manusmriti. Quran reads; “The fornicates and therefore the fornicator, scourge you all of them (with) 100 stripes. And let not pity for them withhold you from enforcing the sentence of Allah, if you think in Allah and therefore the end of the day. And let a celebration of the Believers witness their punishment.” 

BEFORE DECRIMINALIZATION

Before the decriminalization, what we saw within the judiciary was essentially a conviction that the Adultery law protected the institution and sanctity of marriage, this attitude of the judiciary put social institutions above citizens.

The adultery law first came under challenge in 1951 within the Yusuf Aziz v. State of Bombay Petitioner contended that the adultery law violated the elemental right of equality guaranteed under Articles 14 and 15 of the Constitution.

The main argument was men are only responsible and not women, it had been also argued that adultery law gave a license to women to commit the crime.  That Section 497 was valid said by SC in 1954. It held that Section 497 didn’t provide a license to women to commit adultery. The judgment said that creating a special provision for ladies to flee culpability was constitutionally valid under Article 15(3) that permits such a law.

In Sowmithri Vishnu case, the Supreme Court held that ladies needn’t be included as an aggrieved party within the name of creating the law even handed. It also explained on why women shouldn’t be involved in prosecution within the cases of adultery. 

The Supreme Court held that bringing any woman within the adultery law under Section 497 would mean a crusade by a lady against another woman. The anomaly associated with adultery law remained unresolved.

DECRIMINALIZATION

In Joseph Shine v Union of India Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men by only holding them responsible for extra-marital relationships, while treating women like objects.

Married women aren’t a special case for the aim of prosecution for adultery. they’re not in any way situated differently than men,” his petition said.

SUPREME COURT’S REASONING

The judges called the section 497 archaic and said that it violates Article 14 which guarantees Right to equality before law “The state shall not deny to any person equality before the law or the equal protection of the law within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Section 497 discriminates on the basis on sex. 

It further violates article 21 which guarantees life and personal liberty “No person shall be deprived of his life or personal liberty except according to procedure established by law” as it does not maintain dignity of husband and wife and the privacy attached to a relationship between the two.

The Justice said, “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence. The Supreme Court held that Adultery will remain a ground for divorce.”

Justice DY Chandrachud said that it destroys women’s dignity under sec497. CHJI Mishra added that the husband is not the master of the wife.

CONCLUSION

There are different points of view. Some people think it is a good decision and some not. Today the personal laws are equal, operative, effective and efficient.  Our personal laws are sufficient to take care of adultery as a civil wrong. The need to amend the law on adultery in India has not been felt in a few years rather than jurists and lawyers have been pressing the need for amendment since decades. The courts have held that they cannot strike down a section on the ground that it is desirable to delete it. But the paper proposes amendment to and not a deletion of the section. So now, adultery is not a criminal offence. It is a civil offence and divorce petition can be filled in the court on the ground of adultery.

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