The word 'Adultery' is derived from the Latin word 'ADULTERIUM' which means extra marital sex and is considered objectionable on the basis of social, religious, moral and legal grounds. Adultery refers to "an act committed by a married spouse wherein the married spouse commits sexual activity with another person other than his/her spouse."
According to Section 497 of Indian Penal Code, 1860, Adultery refers to “whoever has sexual intercourse with a person who is and whom he knows 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 the adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such a case the wife shall not be punishable as an abettor.”
It is necessary to create an institution which, from the very beginning, does not seek to maintain the sanctity of marriage, but seeks to protect the institution’s structure.
It was asserted in the case of “V. Revathi v. Union of India” that the man was a seducer, not a feminist. It was essentially claimed that Section 497 would not include the wife with the right to sue the husband who committed adultery with another wife. In its attempt to imprison only the ‘outsiders’ of marriage, the above-mentioned statute hits and the group often claims that it punishes the stranger who enters into a marital home and threatens the sacredness of marriage.
Adultery is categorized into two types:
Single- If the relationship is between a married person and an unmarried person.
Double- If both the partners involved are married to someone else.
HISTORICAL BACKGROUND OF ADULTERY-
In ancient India, events relating to husbands having secret relationships with other women and wives adultery after their husband were not uncommon. Adultery was never favored by Hinduism; it was founded as a mortal sin. Marriage is a pious and spiritual relationship, according to Hindus, and the institution of marriage should be maintained all the time.
Hindu law, for both religious and social purposes, is very stringent against adultery. The ancient Hindu law also separated married women’s partnerships from those who are single, and the former attracted harsher punishment. There were also numerous acts concerning different castes of women in the treatment of adultery. The Ancient Hindu Community was not free from the Adultery Hurdle. There were several tales of Hindu myths in which God himself indulged in adulterous thoughts and acts. For example, because of the mere accusation of adultery, Lord Rama banished his wife into the forest. Chapters on the crime of adultery is set down in the manuscript. The book discusses why cheating exists, how to secure it, and the ruthless retribution for those in such relationships who are caught. This sin was punished by death centuries ago, either by public stoning, hanging, or even worse.
Lord Macaulay did not approve adultery/infidelity as a clause of IPC when the Indian Penal Code was drafted, but in the second report the presidents disagreed with Macaulian’s views of adultery and put strong emphasis on his marks and concluded that committing adultery was a heinous crime and that the perpetrator must be responsible for punishment. Section 497 was then founded in the Indian Penal Code.
It is still critical to note that indeed after the declaration of adultery as a ground for divorce, it was still criminalized under Section 497 of Indian Penal Code. It was for this reason that criminalization of adultery was questioned from time to time by numerous women rights activists and attorneys. Yusuf Azizvs State of Bombay was the first case in which the provisions of adultery were challenged in 1951. It was challenged for being violative of Fundamental Rights under Articles 14 and 15 of the Constitution of India. The pleaders contended that Section 497 of Indian Penal Code discriminated against men by not penalizing women in an adulterous relationship. The court held that Section 497 of Indian Penal Code is naturally valid under Article 15(3) of the Indian Constitution. The court asserted that the explanation behind introducing adultery law was that in utmost cases, it’s the woman who’s the victim and hence, cannot be a perpetrator. However, the irony in the case was that although the court considered women as the victims in cases of adultery, they didn’t give them the right to file a complaint.
IS ADULTERY PUNISHABLE?
Earlier adultery was considered as a punishable offense under Indian Penal Code with 5 years of imprisonment, or fine or both. The provisions of punishment were only applicable on a man who had sexual intercourse with another woman other than his spouse, while a wife or another woman who had sexual intercourse or extra marital affairs with a man other than her husband could not be punished. However in the present scenario adultery is not considered as a crime and is not punishable per se.
HOW LAW OF ADULTERY HAS CHANGED?
On 27 September 2018, the Supreme Court’s five-judge Constitution bench unanimously ruled to revoke Section 497 and that is no longer a crime in India.
Chief Justice DipakMisra said when reading the decision, “it (adultery) cannot be a criminal offence,” but it can be a reason for civil problems such as divorce.
Joseph Shine, a non-resident of Keralite, filed public interest lawsuits pursuant to Article 32 of the Constitution in October 2017. The petition questioned the constitutionality of the crime of adultery read in Section 198(2) of the CrPC pursuant to Section 497 of the IPC. Furthermore, when her husband engaged in sexual relations with an unmarried woman, a married woman could not file a lawsuit under Section 497 IPC. This was in view of CrPC Section 198(2), which specified how a criminal would pursue charges under IPC Sections 497 and 498 for offences committed.
Section 497 was illegal as the very reason for criminalizing adultery was the hypothesis that a wife is treated as the husband’s property and is forbidden to have affairs beyond marriage. However, in the case of the husband, the same limitations were not applicable. Section 497 breaches woman’s right to privacy and equality by discriminating and perpetrating gender toward married women.
On 27.09.2018, Section 497 of the Indian Penal Code was unanimously struck by the 5 Judge Bench of the Supreme Court as breaching Articles 14.
RECENT DEVELOPMENTS:
Adultery contributed to an unbecoming conduct and a violation of discipline under certain three Acts. These special laws placed limitations on the human rights of workers working in a special situation involving the utmost discipline. The three laws were covered by Article 33 of the Constitution, which allowed the government to change the basic rights of the members of the armed forces. “Instability” was created by the 2018 verdict. It allowed the decision to cover a worker charged with pursuing an adulterous or illegal relationship.
“In cases of adultery, and where there is an allegation against the defendant, a claim may be made that we are circumventing the statute and what could not be achieved expressly by these Actions is done directly,” said the Ministry.
DECRIMINALIZATION OF ADULTERY-
JOSEPH SHINE VS UNION OF INDIA:
FACTS OF THE CASE:
In this case Joseph shine, a non-resident of Kerala, filed a Public Interest Litigation under Section 32 of Constitution of India where he challenged the constitutionality of the offence of adultery under Section 497 of Indian Penal Code and Section 198(2) of Criminal Procedure Code.
HELD:
The five judge bench of the Supreme Court mutually struck down Section 497 of Indian Penal Code and Section 198(2) of Criminal Procedure Code stating that it is violating Article 14, 15(1) and 21 of the Constitution of India.
JUDGMENT:
The court held that Article 14 of the Constitution of India deals with Right to Equality but it is violating Section 497 and 198(2) as it only penalizes men and not women.
Similarly, Article 15(1) states that there should be no discrimination on the grounds of sex. In this case the law only considers the husband as the aggrieved party if the wife has committed an offense of adultery but the law doesn't consider the wife as the aggrieved party if the husband has committed an offense of adultery.
Also Section 21 of Constitution of India deals with the protection of life and personal liberty but Section 497 of Indian Penal Code treats women as the personal property of the husband and goes against the basic dignity of the women.
CONCLUSION:
Adultery is no longer considered as a criminal offense but a reasonable ground for divorce. Therefore, if either party commits an offense of adultery then the other party has the right to terminate the marriage. However, it is important to note that the burden of proof lies with the party who has accused the other party for the adulterous act and therefore he or she should have all the relevant evidence to prove the offense of adultery committed by other party in front of the court of law in order to terminate the marriage.
BIBLIOGRAPHY
Citation - 3 SCC 39, AIR 2018 SC 4898
Written By,
IshikaFatnani,
Intern, Chanchlani Law World
Comments