Adultery, No Longer a Crime

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This article is written by Tanya Singh a 1st year student of Amity University, Chhattisgarh

WHAT IS ADULTERY?

Adultery is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Islam, and Judaism. A single act of sexual intercourse is generally sufficient to constitute adultery, and a more long-term sexual relationship is sometimes referred to as an affair.

Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century.

In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalizing adultery.

BEFORE ADULTERY VERDICT WHAT WERE THE LAWS:

Under section 497 of the 158- year- old IPC says:

“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 offence of rape, is guilty of the offence of adultery”

 ADULTERY VERDICT:

Section 497 of the Indian Penal Code was a section dealing with adultery. Only a man who had consensual sexual intercourse with the wife of another man without his consent could have been punished under this offence in India. The law became defunct on 27 September 2018 by a judgement of the Supreme Court of India. The Supreme Court called the law unconstitutional because it “treats a husband as the master.” However it is still a sufficient ground for divorce as ruled by the Supreme Court.

Section 497 read as follows:

Adultery.—

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 offence of rape, is guilty of the offence of 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 case the wife shall not be punishable as an abettor.

PETITION TO DECRIMINALIZE SECTION 497:

Because of this problematic interpretation, the Supreme Court in December 2017 decided to accept the public interest litigation in which it has been prayed that the Court strikes down or completely does away with Section 497 of the Indian Penal Code entirely.

It has been argued that the section violates two articles of the Constitution of India- Article 14 and Article 15.

Article 14 reads as follows: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 15 reads as follows: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

On accepting this petition, the Court in its initial observations noted that this was not the first petition challenging the section – debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus “creates a dent on the individual independent identity of the woman.”

The arguments by the party opposing this decriminalization- the Centre- states that the section “supports, safeguards and protects the institution of marriage… Stability of marriages is not an ideal to be scorned.” It further argues that if the petition is allowed, then “adulterous relations will have more free play than now.” As an alternative, it provides that the recommendations of the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee recommended that the wording of the section be changed to: “Whoever has sexual intercourse with the spouse of any other person is guilty of adultery…” to tackle the problem of gender bias which arises from the reading of the current section.

JUDGEMENT:

On 27th September 2018, a five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalizing adultery. It struck down Section 497 IPC on the grounds that it violates Articles 14, 15 and 21 of the Constitution. The Bench held that the section is an archaic and paternalistic law, which infringes upon a woman’s autonomy and dignity. The Bench also read down Section 198 of the Code of Criminal Procedure Code (CrPC). 198(2) CrPC specifies that only a husband can file charges for offences under Section 497.

The Bench overruled its judgments in Sowmithri Vishnu, Vishnu Revathi, and Y Abdul Aziz. These judgments had upheld Section 497 as constitutionally valid.

The Bench produced four separate concurring opinions. Chief Justice Deepak Misra wrote an opinion on behalf of Justice Khanwilkar and himself. Justice Nariman, Justice Chandrachud and Justice Malhotra wrote concurring opinions.

ANALYSIS:

the judgment is absolute to have a sweeping impact upon marriages in India, the adverse fallout cannot be neglected. In an exceedingly country beset with rising divorce rates and cases of marital infidelity, the decriminalization of Adultery can critically endanger the institution of marriage. Not solely will it run the chance of fostering extra-marital affairs, the emergence of divorce because the resolution can change state the break-up of marriages, resulting little kids within the lurch.

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