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DECRIMINALIZATION OF ADULTERY



Adultery means sexual intercourse between a married person and a person who is not their spouse. According to Section 497 of the Indian Penal Code, adultery was considered to be a criminal offence. However, on 27 September 2018, the Supreme Court declared the 158 year old law as unconstitutional. Thus, adultery is no longer a criminal offence in India.


Adultery means an extramarital intercourse or a voluntary intercourse between a married person and a person who is not their spouse. Adultery is condemned in various religions like Hinduism, Christianity; etc .Adultery was an offence in India. Adultery was considered as an offence under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code (IPC) states that: “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 case wife shall not be punishable as an abettor.” This means the wife cannot be punished for committing adultery. According to the Supreme Court, the wife cannot be punished to preserve the sanctity of marriage.


But Section 497 of the Indian Penal Code does not give rights to an aggrieved woman to file a complaint against her husband if he was in an adulterous relationship. Section 497 of the Indian Penal Code was considered discriminatory because it views women as the possession of men. It allowed men to file complaint but did not give women the same right. It has been said that it violates Article 14 and Article 15 of the Indian Constitution. The first challenge to Section 497 came in 1951 in Yusuf Aziz v. State of Bombay. The petitioner contended that Section 497 violated the equality guaranteed under Article 14 and Article 15 of the Indian Constitution. The petitioner alleged that it also gave women a license to commit adultery. But in 1954, the Supreme Court said that it did not give a license to women. Rather, it was constitutionally valid under Article 15(3) states that the state can make special provisions for women and children for safeguarding their interests. Debates and discussions are in full swing since 1954. Laws are supposed to be gender neutral.


Many people considered that Section 497 of the Indian Penal Code makes woman a victim. It creates a dent on the individual identity of woman. Moreover, the Supreme Court said, “It is commonly accepted that it is the man who is the seducer, and not the woman.” The Supreme Court also said that a woman can only be a victim of adultery and can never be a perpetrator in adultery. However, despite calling women as a victim, the court did not give them right to file a complaint. The next important judgement regarding Section 497 came in Smt. Sowmithri Vishnu v. Union of India case in 1985. In this case, the Supreme Court upheld the retention of Section 497. It was observed that it does not differ between man and woman. In fact, it protects the wrong-doer-wife who is also an accomplice in adultery. The Supreme Court also rejected the argument that unmarried woman should be brought under the adultery law because if an unmarried woman is brought under Section 497, it would be like a holy war between women.


In 1988, in V.Revathy v. Union of India, it was held that not bringing women under adultery law promotes “social good” and tries to preserve the sanctity of marriage because marriage is not an ideal to be scorned. In October 2017, Joseph Shine, a Malayalee hotelier in Italy filed a petition from Kerala. He challenged Section 497 and called it discriminatory. The court began to hear the arguments on this petition on 1 August 2018. The Supreme Court said that if the party challenging Section 497 is able to prove that it violates Article 14 and Article 15, then the section would be struck down. Joseph Shine’s advocate Kaleeswaram Raj challenged the constitutional validity of Section 497 of the Indian Penal Code when read with Section 198(2) of the Criminal Procedure Code which deals with the prosecution for offences against marriage. It was held by the Supreme Court that Section 497 is anti-women and treats women as the property of men. So, on 27 September, 2018 the Supreme Court declared the 158-year old law as unconstitutional and no longer considered adultery as a criminal offence.


Many sections of the society opposed the decriminalisation of adultery because according to them marriage is not an ideal to be scorned. Moreover, it will allow adulterous relations to play more freely. The Centre said that it would be detrimental for marriages. Rather, they provided an alternative, that is, reforming the recommendations of the committee on Reforms of Criminal Justice System (2003), also known as the Malimath Committee. In 2000, the NDA government formed a panel headed by Chief Justice V.S Malimath. The Malimath Committee submitted its report with 158 recommendations to Deputy Prime Minister L.K Advani.


One of the recommendations of the committee was that if a man can be punished for having sexual relations with another woman’s wife, then the woman should also be made liable for the punishments. Also, they suggested that the wordings of the Section 497 of the Indian Penal Code be changed to-“Whoever has sexual relations or an intercourse with the spouse of any other person is guilty of adultery.”However, the former Chief Justice of India, Dipak Misra said that adultery is no longer a crime but it will continue to be grounds for divorce. So,five judges including former Chief Justice of India, Dipak Misra, unanimously struck down Section 497 because it treated woman as the possession of a man. The governing parameter of our constitution is equality and husband is no longer the master of wife.




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Author Details: Arsha Sharma (B.A. LL.B. (Hons.) Student at The Law School, University of Jammu)

The views of the author are personal only.

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