With the earth’s formation, many creatures with different species started to evolve on this planet. But Homo sapiens, that is, Humans are the most abundant species with bipedalism and a complicated brain system.
And with the help of those unique features, humans were able to develop and enable themselves to live in a social structure with the cooperation of each other. And because of those social interactions, the concept of marriage and building a family came into existence. Marriage is considered to be the foundation of society. Now in today’s world where we are living, marriage is considered to be the “union of two people.” But the concept of union is not just limited to this, it is a life-long commitment and is regulated by beliefs, attitudes, and the rights and duties of the partners to each other. Marriage is not just about happy times but also ups and downs, and sometimes has unforgivable mistakes, adultery is one of them.
Adultery in a simple manner and language means an act where a married person has consensual sexual intercourse or some sexual relationship with someone other than that person's current spouse or partner. Today, although the definition of "adultery" finds various expressions in different legal systems, the common theme is sexual activity between persons when one of both is married to someone else.
Looking into adultery from a religious perspective, it is considered a grievous crime and has been strictly censored and severely punishable. No other sin or crime is considered to be as sinful as adultery because it is believed to be a sin against God and against the goal of life.
Hinduism considers marriage as a sacred and highly sanctified relationship. According to Hinduism, Adultery is sexual intercourse between a married man and a woman not his wife, or between a married woman and a man not her husband. In Hindu shastras, adultery is considered as a serious breach of dharma and is punishable.
Adultery is firmly banned by Christianity. Christianity considers committing an adulterous act as equivalent to murder and the adulterer becomes a transgressor of the law if he commits adultery. Christians regard marriage as highly sacred and take adultery as an impure and immoral offense.
Zina the Arabic word is for both premarital and extramarital sex that is adultery in Islam. It is considered to be one of the most heinous and deadliest of sins. Islam prohibits Zina, as their Almighty, Allah commands it in explicit and unequivocal. Zina is considered a great sin in Islam, whether it is before marriage or after marriage.
Buddhists attitude towards sexual intercourse is that it should be taken as a part of a loving relationship not a lustful relationship. Buddhism taught them not to engage in adultery, as being unfaithful to a partner can cause suffering, and promiscuity, which can be seen as a negative expression of craving after sexual stimulation.
When we look back into our history we see that adultery has been subject to severe punishments like the death penalty and strong grounds for divorce under fault-based divorce laws. And even in some places the death penalty for adultery has been carried out by stoning. The Code of Hammurabi (18th century BC) in Babylonia provided punishment of death by drowning for adultery. In ancient Greece and in Roman law, an offending female spouse could be killed, but men were not severely punished.
As committing adultery is considered a grave crime, some are subject to severe punishment.
It is pronounced that different countries have various Adultery laws that deal with extramarital sexual relationships and bring justice to the victim. Adultery is scrutinized as a severe and grievous crime from different angles and perspectives but it staggers that there are hardly any strict laws or punishment for the crime in today’s society. Many countries don’t even consider it a crime, there Adultery doesn’t possess a criminal status but in jurisdictions that have decriminalized adultery may still have legal consequences, particularly with fault-based divorce laws, factor in the property settlement, the custody of children, the denial of alimony, etc.
The majority of the countries in the world have decriminalized adultery but there are countries that still hold adultery as a criminal offense including Afghanistan, Bangladesh, Indonesia, Iran, the Maldives, Nepal, Pakistan, the Philippines, United Arab Emirates, some states of the US, Algeria, Democratic Republic of Congo, Egypt and Morocco.
In our country India, adultery was considered as a crime prior to the judgment in the Joseph Shine case in September 2018. Before that the law for adultery that is Section 497 of IPC that was enacted in 1860 states, “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 offence of rape, is guilty of the offence 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.” However, adultery was not provided as a ground for divorce until the enactment of the Hindu Marriage Act in 1955.
Though the law criminalized only men, it’s equally anti-women because it further violated a woman’s dignity by preventing her from exercising her freedom and making choices for herself. The law treated a woman as the property of her husband, and criminalized adultery through patriarchal control over their bodies.
It denies women the right to her body in the form of agency, autonomy and independence; and the object of desire and sexual autonomy.
Therefore, it violated the fundamental rights to equality, non-discrimination, privacy, dignity and autonomy guaranteed under Articles 14, 15 and 21 of the constitution.
In Joseph Shine vs UOI, the supreme court bench decriminalized adultery and held section 497 of IPC,1806 unconstitutional as it violates Article 14,15 and 21 of the Constitution. Under 497 of IPC,1806 a man who had sex with a married woman without getting her husband’s consent was punished. This very offence was limited to adultery committed with a married woman and the male offender was only made liable. In Joseph Shine case the Supreme court said that treating adultery as an offence would lead the state to enter into a private realm and if it is treated as a crime, there would be an immense intrusion into extreme privacy of the matrimonial sphere so it is better to be left as a ground for divorce.
This article is written by Prapti Prajeeta Mahanta of Symbiosis Law School, Nagpur.