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Adultery

Updated: Jan 8, 2022

Written by: Krishan Kumar Garg


Introduction


Adultery could be defined as voluntary intercourse of a married person with third person, third person should not be spouse.[1] In India it was a criminal act and defined under section 497 of Indian Penal Code. Adultery is considered to be socially wrongdoing and a criminal act. In most of countries both men and women are made liable under Adultery but in India only men were made liable. So, in series of cases the court decriminalized Adultery.


Prosecution of Adultery in India


Under 497 of IPC any person who have intercourse with a married women or have reason to believe that the women are married and without the consent or connivance of husband of the women, is said to have committed Adultery. Section 198 (2) of CRPC states that husband or caretaker of wife if husband is not present is aggrieved party in case of adultery and only husband or caretaker of wife if husband is not present can file the complaint against the person who had intercourse with his wife.


Analysis of Prosecution


After having a look into Section 497 of IPC and 198 (2) of CRPC we can conclude that women cannot be prosecuted for adultery and could not be made liable under adultery and also wife cannot criminally prosecute husband if he is having affair with some other women. So, it could be said that women are considered to be object/property of their husband and men are superior to women as wife could not prosecute criminally his husband for having affair. Another viewpoint of section 497 is that only men could be prosecuted and be made liable for having sexual intercourse with his wife without his consent or connivance of husband. However, if the men have sexual intercourse with women with her consent if unmarried and if married with the consent of husband, he is not liable for adultery. Here unfaithfulness of women is not being made punishable as a women can make other men reasonable believe that she is not married, and husband cannot criminally prosecute the third person as he had no reason to believe that women was married which is a big issue as women here is unfaithful to his husband and is not being prosecuted for adultery but only men could be prosecuted for adultery.


Case Law


Yusuf Aziz V. State of Bombay[2]


In 1951, in this case adultery was challenged for 1st time in Supreme Court of India for violating articles 14 and 15 of Constitution, even though court declined the petition stating under Article 15 (2) of Constitution section 497 is valid. But it showed that there was change in society which required to decriminalize section 497.


Sowmithri Vishnu V. Union of India[3]


In this case the ambiguity was not resolved for adultery. The court for sanctity of marriage held that husband cannot prosecute his wife for adultery also women could not prosecute his husband for adultery. The court also held that if aunmarried woman is having affair with married man she cannot be prosecuted, and cannot be held liable for adultery but if unmarried man having affair with a married women then man would be prosecuted and would be held liable for adultery under section 497 of IPC.


Joseph Shine v. Union of India[4]


In the case of Joseph Shine v. Union of India, 2018, the validity of Section 497 of the IPC was questioned. In this case, the petitioners argued that criminal law should be employed only as a last resort for societal control, not to check or govern individual morality or immorality. Centre, on the other hand, contended that adultery is a deliberate activity that jeopardises sexual fidelity and the sacredness of marriage. It is an activity taken deliberately and willfully with full understanding that it will harm the family, children, and spouse.


After hearing both parties, the Supreme Court, in a Bench led by the then-Chief Justice of India, Deepak Misra, ruled that Section 497 of the Indian Penal Code is unconstitutional and thereby knocked it down. The court ruled that the clause was based on gender stereotypes and thus violated Article 14 (equal protection of laws) and Article 15 (non-discrimination on the basis of gender) of the Indian Constitution. The court also overturned Section 198 (2) of the Criminal Procedure Code, which permitted a husband to file charges against the man with whom his wife had committed adultery. So, after careful consideration Court ruled that Section 497 of IPC must be struck down and decriminalized adultery, but the court ruled that adultery could be made ground for civil action not criminal.


The Supreme Court's decision was celebrated across frontiers, from attorneys to campaigners, who welcomed the move to overturn the outdated statute that treated women as the property of their husbands. According to different women activists, the clause for criminalizing adultery was an example of uneven treatment of women and violated her standing as an individual separate entity. To release women from the constraints of "patriarchal authority," decriminalization was required.


Conclusion


During the time when adultery was considered an offence under the IPC, males engaging in sexual relationships with married women were socially acceptable, leaving the married women deprived of love and devotion. There were also no codified personal or matrimonial laws in place at the period. Because of this, the act of adultery was criminalized in order to defend the interests of women. Despite the fact that the clause was intended to protect the interests of women, they were not given the right to submit a complaint against her adulterous husband.[5]


It wasn't until 1955 that the Hindu Marriage Act was enacted, which included adultery as a reason for divorce. With the passage of time and the prevalence of monogamy, women have begun to create their own identities in society and are no longer regarded as chattels of their husbands. As a result, the need to criminalize adultery was gradually becoming obsolete, and it was defeating the goal for which it was criminalized. As a result, the Supreme Court of India's decision to decriminalize adultery is admirable and will serve as the foundation for future efforts to protect women's bodily integrity and freedom.

[1] Black’sLaw dictionary [2]1954 AIR 321, 1954 SCR 930 [3]1985 AIR 1618, 1985 SCR Supl. (1) 741 [4] 2018 SCC OnLine SC 1676. [5]https://www.bbc.com/news/world-asia-india-45404927 (last visited on 30th December 2021)

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