Adultery- As Construed By Its Latest Judgement
This Blog is written by Aastha Sarda from ILS Law College, Pune. Edited by Ritika Sharma.
Ever since it has been incorporated in the Indian Penal Code, the issue of ‘Adultery’ has always been a topic of controversy. The chairman of the First Law Commission of British India (established under the Charter Act of 1833), Lord Macaulay, was of the opinion that the marital infidelity or the acts of adultery between the parties are private matters which do not do any public harm and therefore the law should not interfere and restrict it to a criminal offence. Having a contradicting opinion, other members were of the view that the existing remedy for adultery under common law would be insufficient for the poor natives who would have no recourse against the paramour of their wife and hence it was added to the IPC under Section – 497.
The court took a lenient view on it until the case of Joseph Shine v. Union of India was filed in 2017. The petitioner, in the said case, a non-resident Keralite owing to the loss old his close friend who committed suicide after a woman colleague made a false rape complaint against him, he (the petitioner) got triggered subsequent to which he filed a public interest litigation under Article – 32 of the Indian Constitution challenging the validity of Section – 497 of the Indian Penal Code (IPC), 1860. The petitioner wanted to rescue the Indian men from being penalized for extra marital affairs by vindictive women or their husbands. He wanted the Indian Government to look into the unjustness and discriminatory nature of Section – 497 of IPC and Section – 198(2) of Code of Criminal Procedure (CrPC) by scrutinizing them. And to his optimism, the Supreme Court on 27th September, 2018 struck down the 158-year-old law of the colonial era which dented into the individuality of both men and women in India.
SIGNIFICANCE OF THIS DEVELOPMENT
The definition of adultery as per the law itself pronounces the injustice meted out to men and women equally in the longest possible span of 158 years after this law was passed in 1860 by the law commission formed in 1834. The section has always been unfair and discriminatory and should have been decriminalized way back as it not only violated the Fundamental Rights of citizens but also it questioned the individuality of men and women. The petitioner thus had the “locus standi” to file the instant Writ Petition challenging the said provisions before the Hon’ble Court under Article – 32 of the Indian Constitution.
Right to privacy, invariably also includes right to sexual privacy. In the case of Bowers v. Hardwick, Justice Blackman said in his dissent that “depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation’s history than tolerance of non-conformity could ever do.” Therefore, there is no good reason to criminalize sexual intercourse between two adults.
Although adultery is no more a criminal offence in India but it continues to be a ground for seeking divorce in a civil court.
In the judgement, the then Chief Justice of India, Dipak Misra said, “Husband is not the matter of wife. Women should be treated with equality along with men. “According to Judge Rohinton Nariman ancient notions of man being perpetrator and woman being victim can no longer be held good. Justice DY Chandrachud said the law, “perpetrates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes.” He also said the law sought to, “control sexuality of woman (and) hits the autonomy and dignity of woman.” Finally, Justice Indu Malhotra stated that section 497 forces women to live under the shadow of their husbands and hence should be abolished. Also, it institutionalises discrimination and hence should be disbanded. She further added that a state could not interfere by punishing a man alone, which in itself is discrimination.
Hence, the five-judge bench in four separate but concurring judgements said that the law on adultery was unconstitutional and fell afoul of Article – 21 (Right to life and personal liberty) and Article – 14 (Right to equality.) In addition to this, Section – 198(1) and 198(2) of the CrPC which allows a husband to bring charges against the man with whom his wife committed adultery, were declared unconstitutional by the apex court.
With the striking off Section – 497 of IPC, by the apex court, it assured the women of India that no one can come in their way of dignity and empowerment.
People favouring the judgement were of the view that adultery was rightly decriminalised as it was not gender neutral. If two adults want to get into consensual sex, it is no one’s concern to stop them from doing so.
While the judgement is bound to have a far-reaching impact upon marriages in India, the adverse fallout cannot be ignored. Critics are of the view that India being a country with rising number of divorce rates and cases of marital infidelity, the decriminalisation of adultery will critically endanger the institution of marriage. Moreover, the people opposing the judgement also argue that the decision not only runs the risk of fostering relationships outside marriage but also the emergence of divorce as the way out will catalyse the break-up of marriages, leaving little children in the lurch.
There have been cases where S. 497 was challenged or was recommended for review but not much was done to decriminalise S. 497 and S. 498 of IPC and the respective CrPC provisions. Few cases are listed below-
In Yusuf Abdul Aziz v. The State of Bombay (1954), it was held by the court that the immunity given to women from being prosecuted under S. 497 of IPC was not discriminatory in nature and was valid under Article – 15(3) of the Indian Constitution. In this judgement it was said that the section does not offend articles 14 and 15 of the Constitution of India.
In the case of V Revathi v. Union of India, in 1988, it was held that not including women in prosecution of adultery cases promoted “social-good” and in fact offered a chance to the couple to “make up” and preserve the sanctity of the marriage. It also asserted that adultery law was a “shield rather than a sword” and the court ruled that it was right to restrict women to be a part of adultery and to keep it a man against man crime.
In 1985, the Supreme Court in case of Sowmithri Vishnu v. Union of India stated that men were not allowed to prosecute their wives for the offence of adultery for protecting the sanctity of marriage and for the same reason women could not be allowed to prosecute their husband. The court also rejected the idea of considering unmarried women in the law as it would lead to crusade by a woman and hence the ambiguity regarding the adultery law remained unresolved.
India is trying to create a just and fair society by bringing in effective changes from time to time. All these cases always prove to be significant in decisions to be taken ahead with respect to the Indian laws.
A five-judge bench in the case of Joseph Shine v. Union of India clearly declared Section 497 of IPC as unconstitutional which states that:
“497. 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.”
Adultery entailed imprisonment for a term which may extend up to five years, or fine, or both.
On analysis of the definition of adultery it can be observed that the phrase ‘wife of another man’ gives an impression that a married man having sexual intercourse with an unmarried woman will not be guilty of committing adultery and thus shows gender discrimination. The chapter titled ‘offence relating to marriage’ recognised the offence of adultery because the offence hits the very root of the social institution of marriage destroying the sanctity of the marital relationship and to preserve this sanctity is a collective duty of both husband and wife.
But the section gives an idea that if the husband of the woman, with whom the person convicted of adultery and had sexual intercourse, had given his wife his consent to have extramarital relationship with a third man will not harm the sanctity of their marriage, which is not correct.
In relation to the offence of adultery S. 198(2) of the CrPC expressly states that:
“No person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code.”
According to this section, the aggrieved is the husband, implying that the wife cannot have an extramarital relationship and that she is merely a chattel or property of man. But wives whose husbands commit adultery without being penalised are equally aggrieved but the law has no remedy for it.
Considering such factors, the Supreme Court unanimously struck down section 497 of the IPC that makes adultery a punishable offence for men. All the five judges were of the opinion that the law was archaic, arbitrary and unconstitutional.
Although the Supreme Court has asserted that the law wrongfully treats women as property of men and goes against fundamental rights, it is still to be seen that where the present debate on the opinion of the Supreme Court leads us to. Owing to the fact that adultery still remains as a valid ground for divorce in India, it can be concluded that the legal system should neither interfere nor regulate whom one should have sexual relationships with but rather regulate the process of separation in case one of the two partners violate the sanctity of marriage. It is also true that ethical values and morals one possesses play more important role in any relation that law. Hence, self-regulation is more significant than legal regulation.