Adultery, No More A Crime!

The patriarchy of the society was the origin of law of adultery. Adultery means voluntary sexual intercourse between a married person and someone who is not that person’s wife or husband. According to Section 497 of Indian Penal code (IPC) wife was not punishable for the act of adultery only husband was liable, even though wife is not liable for adultery, still law of adultery was gender bias in favour of the husband, reason was adultery was crime on the  instance of husband and the wife has no right to prosecute the husband for the act of adultery. Adultery is considered sin in almost all religion but the punishment prescribed in most of the religion text is both for husband and wife. In most of the religious text there is equality of punishment whereas section 497 of IPC only husband was liable. In various cases the constitutional validity of section 497of IPC was challenged on account of it’s discriminatory nature but Court upheld the validity of the section by saying “it was in favour of matrimonial ties and social morality”.  The court, finally in the case of Joseph Shine versus Union of India[1] delivered on 27th  September 2018 declared section 497 as unconstitutional by virtue of being discriminatory against women . Keeping equality, privacy and constitutional morality etc in consideration Supreme Court(SC) declared section 497 of IPC as unconstitutional. The Court said “husband is not the master of the wife”. The court made adultery only a ground of divorce.  With the advancement of society striking down of section 497 of IPC is a positive sign towards the social development. The court also emphases that whenever there is conflict between social morality and constitutional morality, constitutional morality will prevail over the social morality.

The word adultery has been derived from the Latin word ‘adulterium’. Adultery means voluntary sexual intercourse between a married woman and someone other than her husband or between a married man and someone other than her wife. Sexual intercourse with anyone who is not a partner by marriage is adultery .

According to section 497 Indian Penal code (IPC) Adultery is.—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 offense of 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 case the wife shall not be punishable as an abettor. A  sexual relationship between a married or unmarried man and an unmarried woman  or a divorcee or a widow does not come within the ambit of adultery.

Almost every religion condemns ‘adultery’ and treat it as a sin so does the society. Hindu law also consider adultery as a sin. Marriage in Hindu law is considered as a sacramental union not only for this life but afterword also. According to Manu smrti: “I hold your hand for saubhagya (good luck ) that you may grow old with your husband, you are given to me by just, the creator, the wise and the learned person”.[2] Adultery is considered as breach of sacred commitment. According to Vishnu Purana “A man should not think incontinently of another’s wife, much less address her to that end; for such a man will be reborn in a future life as a creeping insect. He who commits adultery is punished both here and hereafter; for his days in this world are cut short, and when dead he falls into hell”[3]. In Islam a marriage is considered as sacred contract between the parties. In Islam all sexual intercourse outside the bound of marriage zina are sinful. The Prophet (peace and blessings be upon him) said, “O mankind! Beware of fornication/adultery for it entails six dire consequences: three of them relating to this world and three to the next world. As for the three that are related to this world, they are the following: it removes the glow of one’s face, brings poverty, and reduces the life-span. As for its dire consequences in the next world they are: it brings down the wrath of Allah upon the person, subjects him to terrible reckoning, and finally casts him in hell-fire”[4]. According to Christianity “But a man who commits adultery lacks judgment; whoever does so destroys himself”[5].

Read: Right Of Anonymity Of The Victims Of Sexual Offences

Lord Maculay did not put the adultery as a crime in his first draft on the IPC. But the law commissioners in their second report after overviewing the status of women in India made adultery an offence and made husband liable for adultery. Even though section 497 of IPC made only the husband liable for adultery but still it is gender bias in favour of husband. Firstly, whether the act adultery is a crime or not is depend upon the instance of husband, if the act of adultery is committed with the consent of husband than it is not a crime or when it is committed without the consent of husband then it is crime and punishable. Secondly, section 198 of Criminal Procedure Code (CrPc) mandate a  court not to take cognizance of adultery unless the “aggrieved” husband makes a complaint. Section 198 of CrPc: “Prosecution for offence against marriage – (1) No court shall take cognizance of an offence punishable under Chapter XX of the IPC (45 of 1860) except upon a complaint made by some person aggrieved by the offence: (2) for the purpose of sub-section (1) no person other than the husband shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said code. Thirdly, according to section 497 of IPC read with section 198 of CrPc wife has no right to sue husband for committing adultery. Section 497 treats wife as chattel and considers husband as the master of the wife.

In Yousuf Abdul Aziz v state[6], Mr Abdul Aziz charged with adultery contended before the court that section 497 of the IPC is unconstitutional as it violates fundamental rights: Right to equality under Article 14[7] and 15[8] of the constitution of India, as it made only the husband liable for the act of adultery. The Bombay HC after viewing the social conditions of women and historical background of section 497 of IPC upheld the constitutional validity of the section 497 of IPC . Abdual Aziz aplealed in the Supreme court. SC too upheld the constitutional validity of the section 497 of IPC[9].

After Abdul constitutional validity of the section 497 of IPC was challenged in Sowmithri vishnu v. Union of India[10], In this case with the provision of section 497 of IPC which made only husband liable for adultery, the provision which refrain the wife from prosecuting the husband who has committed the adultery was also challenged. The SC held that section 497 of IPC does not violate article 14 and 15 of the constitution, by the provision of article 15(3)[11] the government has power to make laws in favour of women . Answering the second question the court held that absence of a provision mandating hearing of adulterous wife in Section 497 does not make the section unconstitutional.

The SC recently took a tremendous step towards equality by striking down section 497 of IPC and declared it as unconstitutional. In Joseph Shine v UOI[12] the court said “when parties to a marriage lose their moral commitment to the relationship, it creates a dent in the marriage and it will depend upon the parties how to deal with the situation. Some may exonerate and live tougher and some may seek divorce. A punishment is unlikely to establish commitment,”. The SC said that section 497 violated the right to equality as it punishes only the man while exonerating the ‘partner in crime’, the married women who could not be punished for being the abettor. The section also treated the woman, with whom the married man had sexual intercourse, as a chattel of her husband as it was not an offence of adultery if the husband consented or connived for his wife‘s adulterous relationship.

Justice Depak Mishra as he then was speaking for himself and Justice khanwilkar said, “Adultery in certain situations, may not be the cause of an unhappy marriage. It can be the result if adultery is treated as an offence and punishment is provided it would tantamount to punishing people who are unhappy in marital relationships”. Justice Mahalotra said, “it would be unrealistic to proceed on the basis that even in a consensual sexual relationship a married woman, who knowingly and voluntarily enters into a sexual relationship with another married nan, is a ‘victim’ and the male offender is the ‘seducer’.” “ The autonomy of an individual to make his or her choices with respect to his or her sexuality in the most intimate spaces of life should be protected from public censures through criminal sanction. The autonomy of the individual to take such decision which are purely personal would be repugnant to any interference by the state to take action purportedly in the ‘best interest’ of the individual. Justice Chadranchud said “ In so far as two individuals engage in sexual acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with”. Rejecting argument that IPC section was intended to protect marriages the court said that, Firstly, “ adultery may also be the result of unhappy marriage and making it punishable was unlikely to bring commitment back between the partied”. Secondly, “ the sanctity  of marriage can be a utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow also if the husband consent of conveyance at such sexual intercourse the offence is not committed thereby showing that it is not sanctity of marriage which is sought to be protected and preserved but a property right of a husband”.

Abolition of section 497 od IPC is need of the time, with the advancement of the society laws need to be changed striking down the discriminatory law by Supreme Court is a positive step towards the social development. The section 497 IPC is based upon the social morality in Joseph shine versus Union of India[13] court said “if there is a conflict between the social morality and constitution morality then constitution morality will prevail over social morality”. With this verdict, India joins a list of countries including Japan, China, Australia, France and Germany etc. Striking down of adultery is welcomed by all except the few who consider it as a licence of adultery. Section 497 of IPC deprives women from their right of privacy and adultery. A women cannot asked to think as a man or according to the society. The court by striking down section 497 of IPC clear that denying sexual autonomy to any gender is unconstitutional and unacceptable.

[1] (2018) 1 SCC (CRI) 470 WP (Cr) no.194 of 2017

[2] Manu Smrti , VII, 227

[3] Vishnu purana 3:11

[4]  Al Bathaqui

[5] NIV , Proverbs 6:32

[6] AIR 1951 BOM 470

[7] The state shall not deny to any person equality before the law and equal protection of law .

[8] Prohibits the state fir making any discrimination on grounds only of sex

[9] Yousuf Abdul Aziz v. State of Bombay , 1954, SCR 930

[10] 1985 Supp SCC 137

[11] (3) Nothing in this article shall prevent the State from making any special provision for women and children

[12] (2018) 1 SCC (CRI) 470 WP (Cr) no.194 of 2017

[13] (2018) 1 SCC (CRI) 470 WP (Cr) no.194 of 2017

Aayushi Bana

Aayushi Bana, Content Writer, Law Corner Student of 7th Semester, Jamia Millia Islamia, New Delhi

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