Adultery is referred to as extramarital sexual intercourse that is considered questionable and objectionable on social, religious, and moral grounds. Many cultures all around the globe considered adultery to be a very heinous and disgusting act and such acts often attracted severe penalty. In simpler words, adultery is the sexual act between a married person and someone who is not the said person’s spouse. Adultery used to be a crime in India until recently.
The concerned section of the Indian Penal Code for adultery was Section 497. Only a man who had consensual sexual relations with another man’s wife without his consent should have been prosecuted for this crime in India. This judgment was rendered by the Supreme Court of India on 27 September 2018. The Supreme Court declared the law unconstitutional because it treats a husband as the ‘sole lord‘. However, adultery is still a ground for divorce.
The Code
Section 497 of the Indian Penal Code talks of Adultery. The section reads as ‘Anyone who has sexual intercourse with a person who knows or has cause to suspect that he is the wife of another man, without the permission or connivance of that man, such sexual intercourse that does not constitute an offence of rape, is guilty of adultery. Under that case, the wife shall not be punished as an abettor.‘
Shashikala got married to Vijay Kumar who was Subedar in the Indian Army. They were blessed with a daughter after 3 years of their marriage. Vijay left his wife and son with his parents to serve the Indian Army. After 7 months Vijay returned back to his home to meet his wife and son. When he entered his house, he saw his wife his neighbor in a compromising situation. On seeing his wife in such a condition, he got infuriated and filed FIR against Rohan for adultery. Decide?
1. Rohan will not be liable for adultery
2. Rohan will not be liable for adultery as the requirement of having sexual intercourse is not fulfilled for the prosecution of the adultery.
3. Rohan will be liable for adultery as he was seen in a compromising situation.
4. None of the above.
Answer:
Rohan will not be held liable for adultery because Vijay Kumar has not seen him having sexual intercourse with his wife. Sexual intercourse with a married woman without the consent of her husband is the minimum requirement for prosecuting Rohan for adultery.
Petition to decriminalize Section 497
According to the definition of adultery, it was interpreted that the wife is the property of the husband and that husband is the ‘sole lord’. Because of this interpretation which proved to be problematic, the Supreme Court in December 2017 agreed to consider the Public Interest Litigation in which it was demanded that the court must revoke or fully abolish Section 497 of the Indian Penal Code. It was argued that the section contradicts two articles (Article 14 and 15) of the Indian Constitution.
Article 14
The State shall not deprive any individual equality before the law or equal protection of the law within the territories of India.
Article 15
The State shall not discriminate against any person solely on the basis of religion, caste, race, sex, place of birth or any of them.
On approving this petition, the Court observed in its initial observations that this was not the first petition challenging the section-debates, and cases on this matter have been ongoing since 1954, making it necessary for the court to determine on this issue without much ado. Not to forget rules are meant to be gender-neutral. In this situation, though, it clearly makes a woman a victim and thereby “creates a dent on the individual, autonomous identity of a woman.
Judgment
On 1 August 2018, the Court started to hear the claims on this appeal. The Court had clarified that if the party opposing this provision will clearly show that it infringes Article 14 of the Constitution of India, the section will be repealed.
On 27 September 2018, a five-judge bench of the Supreme Court ruled that Section 497 should be repealed and should no longer be a crime in India.
While reading the judgment it was observed by Chief Justice Dipak Misra that adultery cannot be considered as a crime, but can be considered as a ground for divorce.
The petition in the said case was filed by Joseph Shrine, an NRI from Kerala. It questioned the constitutionality of the crime under Section 497 of the IPC, read in accordance with Section 198(2) of the CrPC. Section 497 of the Indian Penal Code criminalized adultery by putting blame on a man who engages in sexual relations with another man’s wife. The maximum punishment observed for adultery was imprisonment for five years. Women, and consenting parties, have been excluded from prosecution. Consequently, a married woman cannot make a case under Section 497 IPC if her husband engages in sexual intercourse with an unmarried woman.
Section 497 was illegal as the very reason for criminalizing adultery was the belief that a wife is deemed to be the property of her husband and that she cannot have a relationship outside her marriage. However, the same limitations did not apply in the case of the husband. Section 497 breaches both the right to privacy as well as the liberty of women by discriminating against married women and promoting gender stereotypes.
On 27 September 2018, 5 Judge Bench of the Supreme Court unanimously observed that Section 497 of the Indian Penal Code violated article 14, 15, and 21 of the Indian Constitution.