LAW OF ADULTERY IN INDIA 2022 findoutabout.in

Table of Contents

INTRODUCTION

Adultery refers to having voluntary sexual relations with someone other than one’s own spouse. The word adultery has been derived from the Latin verb adulterium which means to corrupt. It is an act committed by a married spouse wherein the married spouse commits consensual sexual activity with a partner other than his spouse. It refers to extramarital sexual intercourse. Morally as well as legally, adultery is something that is not at all acceptable to society.

In Hinduism adultery is defined as the sexual intercourse between a married man and a woman who is not his wife, or between a married woman and a man who is not her husband. Marriage is considered a pious union of two souls and a sacred relationship in Hinduism. Thus the Hindu shastras consider adultery as a serious breach of Dharma.

The adultery law failed to consider the existence of women in the eyes of law and was regarded as the property of their husbands.

Is Adultery a Crime in India?

According to Section 497 of the Indian Penal Code, “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

At present adultery is not punishable under Section 497 of the Indian Penal Code however, it is a grounds for divorce. Initially, adultery was not an offence under the Code and it was the Second Law Commission that recommended that adultery be made an offence under the Code. Section 497 criminalized the sexual intercourse of a man with a married woman without the consent of her husband when such intercourse did not amount to rape. However, this section did not criminalize the sexual intercourse of a married man with an unmarried woman or a widow or where the husband of a married woman gives his consent.

In case of adultery, the husband cannot prosecute his unfaithful wife but can only prosecute the man with whom his wife has had sexual intercourse (adulterer). The wife of the man who has sexual intercourse with an unmarried woman cannot prosecute either her husband or the woman with whom he has had sexual intercourse (adulteress) as adultery can be committed by a man with a married woman only. The offence of adultery thus punishes only the unfaithful husband or the man with whom a married woman has sexual intercourse other than her husband but not the unfaithful wife.

History of Adultery Law in India

Adultery law, a pre-constitutional law, was enacted in 1860. Women at that time had no rights independent of their husbands and were treated as chattel or “property” of their husbands. Therefore, adultery was treated as a crime against the husband, since it was considered a “theft” of his property, for which he could prosecute the offender.

In 1837, the Law Commission of India did not include adultery as an offence in the first draft of the IPC.

Lord Macaulay, the principal initiator of the Indian penal code was against the possibility of considering such a section in the underlying framework and demanded it is kept outside the purview of the penal laws issued by the Indian Judicial Commission. He felt that such inclusion was unnecessary and baseless and that marital infidelity should be left to the community to be taken care of.

The Second Law Commission suspected something and recommended that keeping the offence out of the IPC would be inappropriate and that the man must be punished, again remembering the state of women in the country. It was included later on.

The offence of infidelity was mentioned under Chapter XX of IPC which deals with the Offences Relating to Marriage. This provision is designed to create a sense of security in women by restricting adultery to only unmarried women at the same time that men do not commit sexual with another woman.

the landmark case of Joseph Shine vs. Union of India in 2018

Joseph Shine, a non-resident Keralite, moved before a five-judge constitution bench under Article 32 of the Constitution of India challenging the adultery laws of India. Shine in the case had liberally quoted women rights activist Mary Wollstonecraft, and former UN secretary Kofi Anna to highlight his views on women’s rights and equality. However, the BJP members opposed the petition by putting forth that diluting adultery laws would impact the sanctity of marriages and would hurt marriage bonds.

In 2018, a five-judge SC bench unanimously struck down Section 497 of IPC after holding it to be violative of Articles 14, 15, and 21 of the Constitution of India.

Article 14 – Right to equality – Adultery only prosecuted men and women and hence, it was considered to be a violation of Article 14;
Article 15(1) – prohibits the State from discriminating on the grounds of sex – The law only considered the husbands as to the aggrieved party;
Article 21 – protection of life and personal liberty – Women were treated as the property of their husbands under this law, which is against their basic dignity.

The bench held adultery is more of a personal issue and does not fit under the definition of “Crime” since it would otherwise invade the extreme privacy of marriage. It is up to the husband and wife to decide what to do after adultery is committed, as it is a matter that should only be left to their discretion. Hence, declaring adultery as a crime would creep injustice into the system.

The SC has acknowledged the 150 years old law on adultery as unconstitutional. In the landmark judgment, the SC directly blows the archaic and patriarchal law in India. In the Joseph Shine case, the Apex Court clearly stated that the beauty of the Indian Constitution is that it includes ‘I’, ‘you’, and ‘we’.

The 42nd Law Commission Report has suggested substituting Section 497 of the Indian Penal Code with a reformed provision that states:
“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits adultery, and shall be punished with imprisonment or either description for a term which may extend to five years, or with fine, or with both.”

The Mailmath Committee on Criminal Justice Reforms has reiterated more or less the same argument that men and women need to be placed on the same footing as both are equal partners in the crime and equal treatment needs to be meted out to both genders.