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Caught in the Act – What every Spouse should know about Adultery?

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Shaurya Mishra
Adultery

The word “adultery” has been woven through generations in the fabric of human relationships; its origins are found in the Latin verb ‘adulterium’, which means “to corrupt.” Adultery is typically defined as when a married man has extramarital affairs with another married woman. However, the definition of adultery has changed significantly throughout time due to shifting social perceptions. The modern world, moulded by improved communication and widespread media, has opened up discourses about adultery, especially in cities where the number of extramarital affairs is rising and often results in the dissolution of sacrosanct marriages.

An institution as sacred as marriage is put at risk when one spouse breaks the solemn vows, shattering the love and trust that form the foundation of the partnership. This behaviour, which is often associated with sexual immorality, desire, and vulgarity, has a special position in the context of interpersonal interactions. Adultery is defined as a situation in which two people voluntarily engage in a sexual relationship outside of marriage, as opposed to non-consensual crimes such as rape.

While adultery has historically been most often associated with married women, it may now refer to a variety of situations. Two main types of adultery are single adultery, which involves a married person and an unmarried person, and double adultery, which involves two married people who are not married to each other.

Adultery has ramifications that go beyond interpersonal relationships; it undermines loyalty and brings about unimaginable suffering for everyone involved. Legal systems across the globe have attempted to combat adultery by punitive measures. However, the definitions of such actions differ between countries due to the seriousness of this violation. Notably, a 158-year-old provision (Section 497 of the Indian Penal Code) that criminalised adultery was overturned in a historic ruling rendered by the Supreme Court of India in the case of Joseph Shine v. Union of India in 2018.

This ruling revised the standards of fairness and equity in situations involving extramarital relationships. It was based on the argument that the law had become biased, outdated, and unreasonable. This article delves into the historical evolution of adultery laws, the controversies surrounding them, and the transformative legal reforms that have shaped the contemporary understanding of this complex and emotionally charged aspect of human relationships.

Evolution of Adultery Laws

Adultery

India’s laws against adultery date back to 1860, when the Indian Penal Code, a legal framework that predated the constitution, was created. In this bygone era, women possessed barely any rights in comparison to their husbands and were seen as mere property, representing a centuries-old notion that they were their husbands’ “property”. In this case, adultery was considered a crime against the spouse, similar to stealing something from him, giving him the right to file charges against the alleged perpetrator.

It’s interesting to note that there was a difficult road ahead before adultery was made a crime under the IPC. The Law Commission of India removed adultery from the list of offenses in the first draft of the Indian Penal Code in 1837. An important figure in the creation of the Indian Penal Code, Lord Macaulay, was adamantly against the inclusion of such a provision in the legislation. His position was a reflection of his conviction that marital adultery should be handled by the society rather than falling within the jurisdiction of the law.

However, the Second Law Commission saw things differently. They felt that it was improper to remove the crime of adultery from the Indian Penal Code, given the standing of women in the nation. They contended that harsh measures were required, given the precarious position of women in a society devoid of agency and protection. As a result, adultery was included in the IPC, although under Chapter XX, which deals with offenses related to marriage. This legislative measure was designed to provide women with a feeling of security and was purposefully positioned within the heading of marital crimes under Section 497. This particular portion made adultery illegal and granted the right of a husband to report another man for engaging in physical contact with his wife without his permission.

Legal Challenges and Controversies surrounding Adultery

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Due to its discriminatory nature, Section 497 was criticised for only punishing males and not women. The legality of this clause has been questioned by the Supreme Court of India in a number of rulings. The development of adultery laws in India has been significantly impacted by significant court rulings that have addressed the difficult balancing act between individual freedoms, gender parity, and the maintenance of marital integrity. 

Yusuf Aziz v. State of Bombay (1954)

The legal scrutiny of adultery laws began in earnest with the case of Yusuf Aziz v. State of Bombay in 1951. The petitioners contested Section 497’s validity, arguing that it infringed upon their fundamental rights as guaranteed by Articles 14 and 15 of the Constitution. Their main contention was that Section 497 did not punish women who were in adulterous relationships, so exhibiting gender prejudice.

Citing Article 15(3) of the Indian Constitution, the court maintained the legality of Section 497 in its ruling. The court argued that the adultery statute was designed primarily to protect women, who are often the victims of such crimes. Ironically, however, the ruling acknowledged women as victims but denied them the ability to file a complaint under the same provision.

Sowmithri Vishnu v. Union of India (1985)

Uncertainty continued after the Yusuf Aziz ruling, giving rise to other court cases like Sowmithri Vishnu v. Union of India in 1985. In this case, the Supreme Court struggled to maintain the sacredness of marriage while guaranteeing gender-neutral applicability. The court decided that in situations of adultery, neither the husband nor the wife should be allowed to file charges against one another in an effort to preserve the institution of marriage.

It’s interesting to note that the court upheld the Indian Penal Code’s punishment of adultery and introduced differences depending on the non-marital partner’s gender. Whereas an unmarried male who interacted with a married woman was subject to Section 497 penalty, an unmarried woman who was associated with a married man was not liable.

V. Revathy v. Union of India (1988)

In the above case, the court reinforced the social underpinnings of the adultery law. According to the court, the goal of not prosecuting women in adultery cases was to protect marital integrity; hence, the legislation was portrayed as a “shield rather than a sword.” The reasoning for the adultery statute was to give spouses a chance to make amends, representing it as a tool for promoting cultural stability.

Decriminalisation of Adultery

Coming under the lens of heavy scrutiny in a 2018 landmark judgement, Joseph Shine v Union of India, Section 497 was heavily criticised, mainly for its gender prejudice and outdated views on marriage. The criticisms were hinged on a number of legal issues:

Discrimination based on gender: The most obvious critique is on how gender-specific the law is. Adultery is punishable solely by a male, according to Section 497, whereas women are entirely immune from legal action. This gender imbalance is a throwback to a time when wives were seen as their husbands’ property, reflecting a pervasive cultural belief that women are men’s property.

Victimhood and Agency: Under existing legislation, in situations of adultery, only married men may be identified as the victim, accused, or guilty. Because of this one-sided framing, women are denied agency and are seen as passive objects who cannot commit adultery or report it. This strategy weakens women’s agency and autonomy in married relationships while upholding conventional gender norms.

Marriage as Capital: The adultery legislation, which focuses on defending the husband’s alleged interests, strengthens the idea that marriage is a kind of ownership. According to the legal system, a man might legally claim ownership of his wife, and it was illegal to violate this presumption.

Limited Scope of Prosecution: According to how the law was understood, a wife could not bring charges against her unfaithful husband or the woman he had an extramarital affair with. Due to the lack of legal remedy for women in situations of spousal infidelity, this restriction served further to entrench the uneven power dynamics within married partnerships.

Obsolescence & Lack of Equitability: The landmark ruling in Joseph Shine v. Union of India brought to light the law’s inevitable obsolescence and abolition. The Supreme Court observed that while the statute seemed to be pro-women, it was really gravely and ostensibly anti-women. The court criticised the outdated character of the legislation and stressed the equal responsibilities of each spouse in a marriage.

Beyond the legal sphere, morality and social values were also included in the critique. The justification of Section 497 by the Union home ministry, which was based on the 1985 Sowmithri Vishnu v. Union of India case, came under fire from critics who said that the legislation undermined the changing dynamics of contemporary marriages by maintaining an archaic and restricted class of adulterous relationships that were criminal. The adultery legislation was criticised mostly for its gendered prejudice and for not acknowledging women as parties who had been wronged in adultery cases. This led to the law’s review and eventual repeal in the Joseph Shine case.

Adultery as a ground for Divorce

Domestic Abuse

The landmark decision by the Supreme Court of India in the Joseph Shine’s case marked a pivotal shift in the legal treatment of adultery. With the striking down of Section 497 of the Indian Penal Code, adultery ceased to be a criminal offence, aligning with a progressive trajectory that prioritises individual autonomy and the right to privacy in personal relationships. Section 497 was repealed because it was acknowledged to have a negative effect on women’s basic dignity and to reinforce gender stereotypes.

Adultery has not vanished from the legal system; on the contrary, it is now a valid reason to file for divorce in India. Adultery is today seen as a betrayal of trust and a breach of marital vows, acknowledging the dual character of marriage as both a sacrament and a legal contract. Around the world personal laws, including those in India, condemn adultery and enable spouses to pursue legal remedies including judicial separation or divorce.

According to Hindu Marriage Act of 1955, Section 13(1), adultery is a ground for divorce. In order to bring such a legal action, the petitioner must prove that the marriage really took place and provide proof of the respondent’s willing involvement in sexual activity with a different individual.

Although adultery was always seen as sinful, it was not a valid reason for divorce until the Marriage Laws Amendment Act of 1976 was passed. With this crucial provision, which made adultery a clear basis for judicial separation under Section 10 of the Hindu Marriage Act, 1955, Hindu personal laws underwent a sea change. In the context of judicial separation, the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi serves as an example of the legal ramifications of adultery. The petitioner’s appeal was supported by evidence of the wife’s repeated trips to the co-respondent’s home, compromising circumstances, and negligence of her responsibilities. Based on the offered evidence, the court decided to grant the petitioner judicial separation due to adultery.

Conclusion

In the journey from the criminalisation of adultery to its recognition as a legitimate ground for seeking dissolution of marriage, the legal landscape in India has undergone a profound metamorphosis. The annulment of Section 497 of the Indian Penal Code marked a turning point, emphasising a progressive alignment of legal principles with contemporary notions of individual rights and autonomy. The dismantling of the criminal stigma attached to adultery represents more than a mere change in statutory language; it symbolises a societal commitment to re-evaluate long-standing norms and foster a legal environment that mirrors the evolving dynamics of relationships. 

As we navigate the intricacies of these legal transformations, it becomes apparent that the ripple effects extend beyond statutes and courtrooms. The recognition of adultery as a valid reason for the dissolution of marriage is a testament to the acknowledgement of individuals’ right to self-determination within the institution of marriage. 

Very recently, the Parliament Standing Committee on Home Affairs came up with the proposal that adultery should be re-inculcated as a marital crime within the new framework of the Bharatiya Nyaya Sanhita Act, 2023, but in a gender-neutral manner. The recommendation points to a more balanced strategy that does not adhere to the past gender prejudice. Although it aligns with egalitarian standards, it raises questions about prying into personal life. Most of the nations have decriminalised adultery, keeping only civil remedies for marital disputes. The idea emphasises how intricately legal, social, and moral factors interact, making careful legal research and public discussion necessary to weigh the possible advantages and disadvantages.

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