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(De)Criminalization of Adultery in India

Adultery

De-criminalisation of adultery is a significant step towards attaining gender-justice. The Apex Court of India in its landmark verdict has struck down the legitimacy of Section-497 of the Indian Penal Code, 1860. This historic verdict of the Hon’ble Supreme Court will give certain types of freedom to women in the patriarchal society. Before it, women were considered merely as a chattel of men. This archaic law of adultery treated the husband as the master of his wife. 

Also, from the various previous judgments of the Supreme Court in this regard, it appears that Section-497 of IPC, 1860 is not contradictory to Article-21 of the Constitution of India. But the recent verdict by the 5-judge bench of the Supreme Court shows that it has acknowledged the changing nature of society and old archaic colonial law as outdated and thus, has declared it unlawful and decriminalized it. 

Why is Adultery a Law in India?

Section-497 states that – 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 rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor

Adultery is a matrimonial offense. It is a crime against the husband committed by a third party concerning his wife. It should be noted here that, it is an offense only if sexual intercourse has taken place without the connivance of the husband. Further, a married man having sexual intercourse with a woman who is not married, a widow or a divorced woman commits no offense as such under this Section. 

The act of adultery is a non-cognizable offense i.e., arrest can’t be made without an arrest warrant. Further, it is a compoundable offense. It is compoundable against the husband of the woman against whom adultery has been committed. Also, it is a bailable offense so, bail can be awarded to the accused by the competent authority under law. 

How is Section-497 of IPC Discriminatory? 

Adultery

A close glance at the language inscribed in Section-497 as mentioned above implies that the fulcrum of the crime is quelled once the connivance of the woman’s husband is established. This provision mentioned under the Section creates an indentation on the individual identity and liberty of a woman. This tantamount to the inferiority of women

The provision of law seems to violate the Right to Equality under Article-14 as well as under Article 15 i.e., “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” of the Indian Constitution as it is discriminatory based on ‘sex’. This gender discrimination dimension under Section-497 of the Indian Penal Code 1860 makes it “a criminal offense for a man to have a sexual relationship with a married woman”. It puts a criminal sanction against a man for having sexual intercourse with someone else’s wife without her husband’s connivance whereas it grants full exemption from any such liability to the woman involved. 

Here, contention arises that, the act is carried out by the consent of both the adults, yet only one of the parties i.e., only male is prosecutable while women enjoy absolute immunity. The rationale behind not punishing women was the nature of society and the sacrosanctity of the women. 

Further, this seems to be discriminatory because there exists a disparity of rights under Section-198(2) of the Cr.P.C. It denies the right of the wife to prosecute her adulterous husband, limiting this power only to the husband of the woman involved in the act of adultery, only remedy that wife could seek was divorce, so, only the husband of woman involved in such offense enjoys the right to prosecute whereas wife of husband involved has no resort to take any such measures other than divorce. 

If we have to sum this up as to why it is discriminatory, it can be said that women can neither file a suit against their husband for the offense of adultery, nor can she be prosecuted for it. So, this cut gender discrimination in both ways i.e., it is discriminatory against women as well as men. 

How Section-497 treats women as Chattel Of Men?

The provision of law under Section- 497 was that of the colonial era. It was first drafted by Lord Macauley in 1860. The provision was based on the erroneous presumption that, “women are the property of men” and only the husband has the sole right over the body of his wife. Further, it mentioned that if the consensus of the husband is established then, the act of adultery ceases to be an offense. So, it seems that the rationale behind the law was not to criminalize sexual relations outside marriage but rather to put a bar on any such sexual relation by the wife without the connivance of her “owner” i.e., husband. 

Hence, it could be said that it is a crime not against marriage but the husband himself. This depicts that how the provision mentioned under Section-497 treats a woman like a “man’s chattel”. 

Adultery is no longer a Criminal Offence in India

 The act of adultery is no longer an offense in India now. The Apex Court of India has struck down Section-497 of IPC, 1860 in its verdict in Joseph Shine vs. Union of India along with Section 198(2) of the Code of Criminal Procedure

Before the decriminalization of adultery by the Apex Court in its historic judgment, various other cases came up for reconsideration before the Court. The law of adultery was first challenged in the case of Yusuf Aziz vs. State of Bombay in the year 1951. Petitioner argued that it is an infringement of fundamental rights guaranteed under Article-14 and Article-15 of the Constitution of India. The Supreme Court said in its judgment that Section 497 is commonly accepted. It observed that “It is the man who acts as a seducer and not the woman”. Further, the Court ruled that “woman is only a victim of adultery and not a perpetrator of a crime”. 

The Supreme Court of India in the Sowmithri Vishnu vs. Union of India case held that Section-497 is not discriminatory between man and woman. It is not violative of fundamental rights under Article-14 and Article-15 of the Constitution. The Court held that “husband and wife are not allowed to prosecute each other for the offense of adultery in order to protect the sanctity of marriage.”

Further, in the case of V. Revathi vs. Union of India case, the Apex Court ruled that “keeping women out of the prosecution of adultery promoted social good. It offered a chance to them to keep the relation intact.” The Court further said that “adultery law is a shield rather than a sword.”

The validity of Section-497 was challenged before Supreme Court in each of the above cases, but each time Supreme Court upheld its validity and refused to quash the provisions, saying the man involved in adultery is ‘seducer’ while the woman is ‘victim’. Besides the above cases, the Law Commission of India in its 42nd Report and Malimath Committee Report (2003) recommended an amendment to the adultery law.  Both the reports recommended making the law under Section-497 gender-neutral. 

Key Analysis of the Verdict in Joseph Shine Case

Extramarital Affair

A writ petition under Article-32 was filed in the Supreme Court by petitioner Joseph Shine a non-resident Keralite, challenging the constitutional validity of Section-497 of the Indian Penal Code read with Section-198 of Cr.P.C. on account of violation of fundamental rights under Articles 14, 15, and 21. It was argued by the petitioners that provision under the law is arbitrary and discriminatory on account of gender. It attacks the person’s right to privacy. The sexual relationship in our society is generally considered to be a private matter so, the provision under Section-497 that it would be an offense if the sexual relationship has been established without the consent of the husband denies the privacy protection. 

The respondent, on the other hand, contended the validity of Section- 497 on the ground that adultery is an offense that breaks down the institution of marriage and family relations so, deterrence should be there to protect the institution of marriage. They further said that discrimination by the provision is backed by Article-15 (3) of the Constitution of India, which provides the right to the state for making special laws for women and children. On the ground of this, they argued the Court to cut out the portion found unconstitutional but to retain the other provisions. 

After listening to the arguments from both sides, the 5-judge bench of the Supreme Court comprising of Justice Deepak Mishra, Justice R.F. Nariman, Justice Indu  Malhotra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud held that  Section- 497 of Indian Penal Code, 1860 is unconstitutional. The Court struck down the provision of law on the ground of arbitrariness and archaic nature. Further, it ruled that the husband is not the master of his wife

Justice R.F. Nariman stated that the “ancient notion of a woman being victim and man being perpetrator no longer holds good.” His statement was based on the assumption that society is changing over time. Under adultery law, a man is solely convicted for the act while the woman is not convicted, this clearly goes against the right to equality which is guaranteed as a fundamental right under Article-14 of the Indian Constitution. 

Justice D.Y, Chandrachud said that “control sexuality of women hit her dignity and autonomy.” He further said that when a man and a woman marry, woman, being the wife has not given her sexual freedom on her sexuality, so she can explore sexuality outside her marriage, but section-497 of IPC, 1860 deprives her control over her sexuality, thus it goes against the concept of privacy and dignity under Article-21 of the Constitution.

 Adultery is no more a criminal offense. However, it was further said that adultery would still be a civil wrong. It can be a ground for divorce i.e., ground for the judicial separation of husband-wife. 

Conclusion

This is a modern society of the 21st century where our focus is to end gender-based discrimination and to achieve parity in all spheres of life. The decision of the Apex Court to declare the old archaic law as unconstitutional is one such move in that direction. Now the nature of society is changing with time. Women are no longer behind the shadow of men. They are capable of making their own decisions and they could no longer be treated as a puppet in someone’s hand. 

The provision of Section-497 was biased. Legally, it is important to ensure the gender-neutral language in our legislation, and also, there is a need to ensure that both sexes are equally protected. This is a historic verdict by the Supreme Court of India to decriminalize the act of adultery and it would prove to be a milestone in achieving gender equality in society.


Editor’s Note
The recent judgment of the Supreme Court of India that struck down the provision that criminalized the act of adultery created a stir amongst the people of the nation. This article explains what the law of adultery was in India before this judgment and how was it discriminatory.

Further, the author enlists various judgments passed previously by the Supreme Court of India in this regard and has lastly given an analysis of the landmark judgment that decriminalized adultery. The author has concluded by saying that with the changing nature of our society, it is very crucial to have legislations that are gender-neutral in nature to ensure gender parity in all spheres of life.

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