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CRITICAL ANALYSIS OF ADULTERY LAW IN INDIA

INTRODUCTION

“Autonomy is intrinsic in dignified human existence and section 497 denudes women from making choices and holds adultery as a relic of the past.”

– Justice DY Chandrachud.


Adultery is an act committed by a married spouse, the concept of a wife corrupting the marital bond with her husband by having extramarital affairs, outside the marriage, is termed Adultery.

This law did not allow married women to file a complaint against their husbands having a sexual relationship with other women.

The offense of adultery is decriminalized in 2018, because of gender biases and code that violates the Articles 14, 15, and 21 of the constitution thus being held to be unconstitutional. The 158-year-old colonial-era law was struck down by India’s top court that ruled adultery is no longer a crime, which treated women as male property.

Adultery law is pre-constitutional law which was framed in 1860 when women have no rights and voice against unfair laws. And men consider women their property when a property is harmed or destroyed the offender gets punished for that offense. Women's contribution to society was limited. They are controlled by men and most men misuse their powers to prove that they’re physically, economically, financially, mentally and socially strong and have the license to victimize women the way they want. These ancient laws don’t consider women equal to men and discriminate against their rights. Women are considered inferior to men in Indian society. Because of this type of inferiority, they have to face various issues and problems in their life.

This offense is well explained in section 497 Indian penal code (1860), which was framed by the Britishers and was the time when women consider the property of men, without his permission she can’t act. And section 497 Adultery offense is a clear reflection of gender biases in Indian law. Many cultures consider adultery a very serious crime, some subject punishments, and penalties for a woman and sometimes for men also. It also mentions in Manusmriti, “for those who are addicted to intercourse with other men’s wives by the punishment which causes terror and followed by banishment”.

In today's age, Adultery is considered a valid ground for divorce. Adultery is often seen as a breach of trust or false commitment in marriage and often results in divorce.


HISTORICAL BACKGROUND OF ADULTERY

In Hindu Puranas the most classical case of adultery was Ahalya, where she was duped by Indra and drawn into an illicit relationship because of that she was burnt. Hinduism doesn’t favor extramarital relationships and their consequences worsen, people who are involved in adultery have to deal with a lot of social ridicule and public disgrace, particularly in rural areas. According to Hindu traditions and ethics marriage is not meant for sexual enjoyment but means to raise a family and ensure the social order of society. The culture and tradition of India are considered old and great all over the world where people worship the female goddess and saint, it is also famous for the largest democracy in the world. Women's backwardness is very clear since ancient times because of society and their restrictions against women, where they took so long to speak for themself and the 150-year-old law was unconstitutional because of their voice.

According to Manusmriti "An intended sexual contact between two people of the opposite gender who are not married to each other under a law.” It also considers marriage as not just a social contract between men and women it involves God as well and the couple should be devoted to each other.

In the Indian penal code chapter XX under section. 497 deals with Adultery offenses and on the recommendation of the Law Commission, it was added to the code. The law commission of India did not include adultery as an offense in the first draft of the Indian penal code in the year 1837. The principal initiator Lord Macaulay of the Indian penal code was against the possibility of considering such a section in the framework of the Penal code. Felt that it is unnecessary and baseless to mention that marital infidelity should be left to the community to be taken care of.

But the second law commission recommended that keeping the offense of adultery out of IPC would be inappropriate and men should be punished for such marital infidelity offenses. Later it was added to the Indian penal code of 1860. The existing laws for the punishment of adultery were considered to be altogether inefficacious for preventing the injured husband from taking the matter into his own Hands. The law commission considered that by not treating adultery as a criminal offense, it may give sanction to immorality.


In their view – “Nobody proposes that adultery should be punished with severity at all proportioned to the misery which it produces in cases where there is strong affection and a quick sensibility to family honor. We apprehend that among the higher classes in this country nothing short of death would be considered as an expiation for such a wrong. In such a state of society, we think it far better that the law should inflict no punishment than that it should inflict a punishment which would be regarded as absurdly and immorally lenient."


ADULTERY LAW IN INDIA

According to Indian law, a woman cannot be punished for adultery, only a man has been punished for sexual intercourse with the wife of another man without his consent.

Section: 497. Adultery (under chapter XX Indian penal code 1860) [1]

“Whoever has sexual intercourse with a person who is 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 the fine, or with both. In such a case, the wife shall not be punishable as an abettor.”

This section defines and punishes adultery. It describes that whosoever has sexual intercourse with the person who is known or believe to be the wife of another man, without the consent of that man, such sexual intercourse is not amounting to rape, is guilty of the offence of adultery and shall be punished with simple or rigorous imprisonment for a term extending up to five years or with the fine or both. In such a situation, the wife shall not be punishable as an abettor.

This is an offense against marriage, which is committed by a third person against a husband in respect of his wife. A married man having sexual intercourse with – An Unmarried woman, a widow, A Married Woman whose husband consent to it, or a divorced woman. The offender doesn't need to know the victim's husband’s identity because the section only says that the victim must be a married woman and the offender must either know or have reason to believe that she is the wife of another man.

Section 198 (1) of The Code of Criminal Procedure 1973 says that no court shall take cognizance of an offense punishable under chapter XX of The Penal Code except upon a complaint made by some person aggrieved by the offense, while section 198 (2) of this code states clearly that for subsection (1), no person other than the husband of the women shall be deemed to be aggrieved by any offense punishable under section 497 or section 498 of the Indian Penal Code, provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offense was committed may, with the leave of the court, make a complaint on his behalf.

Chaman Lal Monga V. Haji Sabir Ali [2], where a married woman had left the house of her husband and was found in the company of the respondent in a room in the dead of night and there was only one cot in the room and two were found naked at the time, it was held that the circumstances established an offense under section 497 by the respondent.

Bhandu V. Chetram,[3] the prosecution must establish beyond doubt by cogent evidence. Customary rites and performances of ceremonies show that a man and a woman were married by the law, and their mere living together as husband and wife would not prove that they were husband and wife.

Shanker Tulshiram V. Emp. [4], The Bombay High Court held that Adultery is not a continuing offense, and every fresh act of adultery means a fresh conviction.


STRIKING DOWN ADULTERY LAW IN INDIA

In Sowmithri Vishnu V. Union of India [5], the supreme court seized on the question of the constitutionality of section 497 of the Indian penal code. It affirmed its earlier view in Yusuf Abdul Aziz V. State [6] that this section is not unconstitutional. The court observed that section 497 does not violate Article 14 on the ground that it makes an irrational classification between man and woman in that it confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband had committed adultery, and that it does not confer any right on the wife to prosecute the husband has a free license under the law to have an extramarital relationship with an unmarried woman. It does not offend Articles 14 & 15 on the ground that the wife with whom adultery is committed is saved from the punishment and not punished as an abettor. Section 497 does not violate Article 21 either because even though it is true that this section does not have a specific provision that the married woman should be heard but that does not justify the proposition that the woman has no right to be heard even when she requests that she be heard.

But in Joseph Shine V. Union of India [7], The supreme court overruled its judgment in Sowmithri Vishnu V. Union of India. It was held that the offense of adultery under section 497 of the Indian penal code is violative of articles 14,15 and 21 of the constitution, and thus unconstitutional. In December 2017, Joseph Shine filed a petition challenging the validity of section 497. The three-judge bench, headed by the then chief justice of India, Dipak Mishra, had referred the petition to a five-judge constitution bench which comprised Dipak Mishra, and justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra admitting that the law seems to be archaic. The bench held adultery is more of a personal issue and does not fit in the definition of crime. It is up to the husband and wife to decide what to do after adultery is committed, as it is a matter that should only be left to their discretion.

The adultery law does not treat a woman as an abettor but protects a woman and simultaneously it does not enable the wife to file any criminal prosecution against the husband. The law deserves to be struck down, over time. Article 14 springs into action and interdicts such law as being manifestly arbitrary. A law which deprives women of the right to prosecute is not gender-neutral. This provision is discriminatory against women, and violative of article 14 of the constitution. The provision discriminates between a married man and a married woman to her detriment on the ground of sex and violates Article 15 of the constitution. Such a provision cannot be considered beneficial legislation covered by Article 15. The sexuality of a woman is part of her inviolable core, neither the state nor the institution of marriage can disparage it.

This regard is basic to human identity.

Section 198 of the code of criminal procedure, 1973 [8] is blatantly discriminatory because it is the husband alone who can file a complaint against another man for adultery. A wrong punishable with criminal sanctions must be a public wrong against society as a whole and not merely an act committed against an individual victim. Hence, this section is violative of the right to pursue a meaningful life within the fold of articles 14 & 21.


CONCLUSION

The supreme court has acknowledged the 150-year-old law on adultery as unconstitutional, which treats the husband as the master of his wife. The chief justice of India declares, The Adultery law is arbitrary and offends the dignity of a woman. In recent judgments adultery law directly blows the patriarchal law in our country.

The supreme court in joseph shine's case has laid down the true interpretation of the constitution and explained that it was based on "I, YOU & WE”. A woman cannot victimize and consider a man’s property in the modern progressive world. It further lays down that when there is the consent of a man to develop a relationship outside the marriage then there is no offense. Although the supreme court has put forth its view that the law wrongly treats women as the property of men and goes against their fundamental rights, adultery is still a valid ground for divorce.

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  1. Indian penal code 1860 section. 497 https://legislative.gov.in/sites/default/files/A1860-45.pdf

  2. 1973 Cr LJ 1249 (Del.)

  3. 1977 Cr LJ 134 (MP)

  4. (1928) 30 Bom LR 1435

  5. AIR 1985 SC 1618

  6. 1954 Cr LJ 886 (SC)

  7. AIR 2018 SC 4898

  8. The code of criminal procedure 1973 https://legislative.gov.in/sites/default/files/A1908-05.pdf


This article is written by Ritu Sharma of S.S.Jain Subodh Law College Jaipur Rajasthan.