Decriminalization of Adultery and its Aftermath

Adultery, according to a layman, refers to an act in which a married person indulges himself/herself in a sexual relationship with another person who is not recognized as their spouse by the law. Under the Indian Penal Code, Adultery is defined as “Whoever has sexual intercourse with a person who is and whom he knows or has a 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. However, in such a case the wife shall not be punishable as an abettor.”

In 2018, the then Chief Justice of India Dipak Misra led a constitutional bench that scrapped the 158-year law, Section 497 of the India Penal Code that dealt with adultery, stating that it was unconstitutional. The five-judge bench had unanimously quashed the arbitrary, discriminatory, patriarchal, and archaic penal provision of Adultery while citing that it is violative of the right to dignity of a woman by saying as it. Until then, Section 497 of the Indian Penal Code gave a maximum sentence of five years to anyone who had sex with a married woman, “without the consent or connivance” of her husband. However, the married woman was exempt from punishment, though her partner was not. On the other hand, the partners of adulterous married men did not face equal consequences under the law.

“It’s time to say that (a) husband is not the master of (his) wife,” stated the Chief Justice of India, Dipak Misra in the judgment. The bench further held that Section 497 treats a married woman as the commodity of her husband.

Background and Evolution

The law came into existence in the 1860s, at a time when our country was highly influenced by the Britishers. The observations of the Law of Adultery date back to the Hammurabi code, in which the seventh commandment embraced adultery. Henry VIII of England used it in order to get rid of Catherine Howard, his wife.

Adultery is an extramarital affair that can never be accepted as ethical conduct. It is an extramarital affair which on social, moral, religious, and legal grounds, is considered to be incorrect. Such a relationship would always be considered as a faulty relationship because it is against the societal norms and it also questions the morality of the society as a whole. It had a broader application in history, contrary to its present nature, and this can be said because it referred only to the commission of adultery between a man, either married or unmarried, and a married woman, but also between a man married and a woman unmarried. Consideration of marriage as a sacred institution and punishment for the abuse of the same was the onus of adultery. Historically, many cultures have treated adultery as a serious offense, and so even extreme penalties have been inflicted, including capital punishment, mutilation, torture, etc.

Coming to the religious aspects, the Hindus and Christians believe marriage as a sacred bond, and the crime of adultery is unforgivable in the eyes of God; Hinduism considers adultery as a breach of Dharma. On the other hand, the Holy Quran says, “those who commit adultery both men and women should be given 100 lashes”.

The first draft of the Indian Penal Code released by the Law Commission of India in 1837 did not include “adultery” as an offense. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties and not a criminal offense. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission in Joseph Shine vs. Union of India.

Adultery Law in India

The 158-year-old adultery law did not recognize the will of the woman, unlike the country’s sexual harassment laws, which hinge on the woman’s consent. Though women could not be prosecuted under the provision, even if the wife was a willing participant in the act, a husband could sue a man who had sexual relations with his wife. On the other hand, if a husband has an affair, the wife cannot similarly prosecute him or the woman he cheated on her with.

As one merged with that of an individual, the adultery law that existed in India assumed the status of women. A man who was accused of having committed adultery with a married woman was punished by the statute, while vice versa was not applicable to women. Women were believed to be innocent victims, so they were not prosecuted for the crime of adultery. In the eyes of the law, she had no separate life and was treated as her husband’s property. The legislation was justified on the grounds that marriage is a pristine institution allegedly infringed by a sacred man and thus only by the one who was punishable. The colonial-era legislation was endorsed by the Narendra Modi government on the grounds that it protected the sanctity of marriage and supported the public good.

Later, the then Chief Justice of India, Dipak Misra had during the hearing of the petition challenging the constitutionality of Section 497 of IPC, asked “Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy (divorce law) available to the other. Where is the question of ‘public good’ in a broken marriage?”

In 1985, the supreme court said, “It is commonly accepted that it is the man who is the seducer and not the woman,” and that making the law gender-neutral would allow for “a crusade by a woman against a woman.”

Previous judgments

Yusuf Abdul Aziz vs. State of Bombay (1954) – In this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article 14 and Article 15, by saying a wife cannot be a culprit even as an abettor. The 3-judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). And Article 14 is a general provision and has to be read with other Articles and sex is just classification, so by combining both it is valid.
Sowmithri Vishnu vs. Union of India & Anr. (1985) – In this case, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not provide the right to a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3-judge bench in this case also upheld the validity by stating that extending the ambit of offense should be done by the legislature and not by courts. The offense of breaking a family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men can commit such an offense.
V. Revathi vs. Union of India (1988) – In this case, the court upheld the constitutional validity of Section 497 read with Section 198 by stating that this provision disables both wife and husband from punishing each other for adultery hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus, it is reverse discrimination in ‘favor’ of her rather than ‘against’ her.
W. Kalyani vs. State through Inspector of Police and another (2012) – The constitutionality of Section 497 did not arise in this case but it says that the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offense.

Challenging Section 497 of the Indian Penal Code

In December 2017, Joseph Shine, a 41-year-old Indian businessman living in Italy moved the Supreme Court of India in a Public Interest Litigation under Section 32 of the Indian Constitution, seeking to strike down the Adultery law. He argued that section 497 of IPC read with Section 198 of the Criminal Procedure Code, being violative of Article 14, 15, and 21 while citing that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects. This was at first a PIL filed against adultery.

The petitioner contended that the provision criminalizes adultery on classification based on sex alone which has no rational nexus to object to being achieved. The consent of the wife is immaterial. Hence violative of Article 14 of the constitution. He further argued that the provision is based on the notion that a woman is the property of the husband. The provision says if the husband gives consent or connive then adultery is not committed. While contending that the provision is unconstitutional as it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination, the petitioner stated that it is violative of Article 21.

The petition was referred to a five-judge Constitution Bench by a three-judge bench, led by India’s Chief Justice Dipak Misra, accepting that the law does seem to be archaic. The court had observed that the law appeared to be focused on some “societal presumptions” while hearing the case previously.

The following issues were raised:

Whether the provision for adultery is arbitrary and discriminatory under Article 14?
Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article15?
Whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-determination?
Whether criminalizing adultery is intrusion by the law in the private realm of an individual?

Subsequently, in four separate but concurring judgments, the apex court struck down the law and declared that the husband cannot be the master of his wife. Below are the crucial points made in the judgment:

Section 497 is arbitrary: It has been pointed out in the judgment that the essence of Section 497 is subjective. For one the ‘sanctity of marriage’ is not maintained, since a husband can give consent to let his wife have an affair with someone else. Rather the judgment points out it helps to retain a husband’s ‘proprietary rights’ over his wife. In addition, against her husband or his lover, the wife cannot file a lawsuit. There are no provisions for dealing with an unmarried woman or a widow having an affair with a married man.
Women can’t be held captive by societal expectations: Further, the judgment explicitly states, “It is not possible to ask a woman to think as a man or as society wants.” Such a thought is abominable because it slaughters her core identity.” In a society like India, the role and expectations of women are deeply rooted in society.” It is, therefore, ground-breaking for the Supreme Court to remember that women cannot be compelled to behave according to the will of society.
A husband does not own his wife: The judgment adds, “And, it is time to say that a husband is not the master. Equality is the governing parameter.” Activists had slammed Section 497, saying it was totally “male-friendly” and that as long as it existed, it perpetuated the idea the wife was the husband’s property.Historically, it was considered to be the “highest possible invasion of property,” equivalent to stealing, because adultery interfered with the “husband’s exclusive assets.” It is clear from a reading of Section 497 that women are considered as subordinate to men inasmuch as it states that there is no offense when there is connivance or consent from the man. The woman is treated like a chattel by this. It treats her as man’s property and totally subservient to the master’s will. It represents the social superiority that was prevailing when the criminal provision, Joseph Shine v. Union of India, was drafted.
Section 497 is against Article 14 and 15 of the Indian Constitution: Article 14 guarantees equality to every citizen in India and Article 15 states that no one can be discriminated on the basis of religion, race, caste, sex, etc. The court observed that the very nature of Section 497 was in contravention to this as it saw women as subordinates of men, and hence went against the Constitution of India.
Why should adultery be a criminal offense: The judgment makes it amply clear that the legislation invaded an extremely private domain, that of marital life, by criminalizing the act. According to Article 21 of the Constitution, integrity and personal liberty are granted to all but by rendering adultery a criminal offense, dignity, and privacy are stripped of individuals. Justice Indu Malhotra wrote in her judgment, “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure,” thus asking whether it is a criminal offense at all. She added that it did not deserve to be listed as a criminal offense because adultery was a moral wrong, and not a societal wrong that influenced the lives of hundreds of others.
Violation of dignity of woman and Article 21 – Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21, Joseph Shine vs. Union of India

However, Adultery is still a ground for Divorce in India. Personal family laws have remedies provided under which your marriage has been solemnized. The Punjab and Haryana High Court had in 2019 observed that adultery as a ground for divorce cannot be considered without impleading the alleged adulterer.

Personal Family Laws with Regards to Adultery

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954

Divorce – Section 13(1)(i) of the Hindu Marriage Act and Section 27(1)(a) of the Special Marriage Act have mentioned in a very precise manner, that any marriage may be dissolved by a decree of divorce on the filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you.
Judicial Separation – You may file a petition in court to obtain a decree of judicial separation on the grounds of adultery committed by your husband or wife if you do not want a divorce. You will no longer be bound to cohabit with your partner after receiving the decree. This will give you time to think about the scenario and decide whether you want a divorce or not. You or your spouse can file a petition for dissolution of the marriage if you fail to cohabit with your spouse within a period of one year.

However, it is not possible to use anything short of sexual intimacy as a reason for divorce or judicial separation. In the case of Dastane vs. Dastane, unlike the role of the law in the past, where adultery had to be proven beyond a reasonable doubt, the Supreme Court held that evidence beyond a reasonable doubt is only applicable in criminal cases, not in civil cases, and especially not in cases relating to marriage. In the suit against your spouse, always implead the adulterer as a co-respondent. Failure to do so can become a cause for the dismissal of your suit.

Muslim Personal Laws

A Muslim husband can divorce his wife at his will, without providing any reason for such divorce if the wife is involved in cheating.
On the other hand, if a husband has delegated the power to divorce, the wife may use such power to divorce him. This is known as talaq-i-tafweez. In any other case, the wife can file a petition for divorce in the court of law under Section 2 (viii) (b) of the Dissolution of Muslim Marriage Act, 1939.

Christian Law

Divorce – Divorce for Christians in India is regulated by the Divorce Act, 1869. Section 10(1)(i) of the act reads: “Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.”

However, under Section 11 of the Act, it is a requisite that the adulterer must be impleaded as a co-respondent in the suit, unless

The respondent is leading the life of a prostitute and the petitioner does not know with whom the adultery has been committed.

The petitioner is not aware of the name of the adulterer though efforts have been made.

The adulterer is dead.

Judicial Separation – One can alternatively, file a petition of judicial separation under Section 22 of the Divorce Act, on the ground of adultery committed by your spouse.

Parsi Law

Divorce – The statutory provisions for marriage and divorce of Parsis have been provided for by the Parsi Marriage and Divorce Act, 1936. As per Section 32(d) of the Act, adultery is a ground for divorce, if a suit for divorce is filed within a period of two years after the plaintiff came to know of the fact.
Judicial Separation – Section 34(d) of the Act makes all the grounds for divorce, grounds for judicial separation as well. Therefore, adultery is a ground for judicial separation under the Parsi Law.

Adultery under the Code of Criminal Procedure, 1973

Under the Code of Criminal Procedure, a wife is not entitled to get maintenance from the husband if she lives in adultery. If an order has been passed to pay maintenance and later proof is presented of her living in adultery, such order shall be canceled by the magistrate. However, it is pertinent to note that living in adultery is different than merely committing adultery once.

If a person entices your wife away from you, with an intent to commit adultery with her and then commits adultery with her, he may be separately charged with, and convicted of, offenses under sections 498 and 497 of the Indian Penal Code.

Conclusion

Where the current discussion on the Supreme Court’s decision takes us to is yet to be seen. While the Supreme Court has argued that the law unfairly considers women as property of men and goes against fundamental rights, adultery is still a legal ground for divorce. It can also be seen as something which places a fair restriction on sexual autonomy, which means that there are legitimate restrictions on sexual autonomy. Therefore, it can be inferred that if one of the two spouses violates the sanctity of marriage, the legal system does not control which one should sleep with, but rather regulate the separation process. In addition, the criminalization of broken faith in a marriage does not lead to a couple returning to a blissful way of life, nor does it alter society’s social conduct.

This article is written by M Nikitha. The author can be contacted via email at nikitha@bnblegal.com

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