Adultery Law in India
ABSTRACT
Adultery (from Latin "adulterium") is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship.
The term adultery refers to sexual acts between a married person and someone who is not that person's spouse. It may arise in a number of contexts. In criminal law, adultery was a criminal offence in many countries in the past, and is still a crime in some countries today. In family law, adultery may be a ground for divorce, with the legal definition of adultery being "physical contact with an alien and unlawful organ". While in some countries today, adultery is not in itself grounds for divorce. Extramarital sexual acts not fitting this definition are not "adultery" though they may constitute "unreasonable behavior", also a ground of divorce. Adultery, rather than extramarital sex, implies a moral condemnation of the act; as such it is usually not a neutral term because it carries an implied judgment that the act is wrong, sexual relations which are not officially legitimized; for example, it does not refer to having sexual intercourse with multiple partners in the case of polygamy (when a man is married to more than one wife at a time, called polygyny; or when a woman is married to more than one husband at a time, called polyandry).
Adultery law in India
Adultery was a criminal offence under Chapter XX of the Indian Penal Code until it was quashed by the Supreme Court of India on 27 September 2018 as unconstitutional. The law dated from 1860. Under Section 497 of the Indian Penal Code, which was the section dealing with adultery, a man who had consensual sexual intercourse with the wife of another man without that husband's consent or connivance could have been punished for this offence with up to five years imprisonment, a fine or both. As such, the concept of adultery targeted the act of sexual intercourse occurring between a married woman and a man other than her husband, in which case the man would be guilty whereas the wife was exempt from punishment. When a married man had sexual intercourse with an unmarried woman, no party was punishable; while if a married man had sexual intercourse with a married woman other than his wife, the married man's crime was against the husband of that married woman, not against the man's own wife towards whom he had been unfaithful. Adultery was only prosecutable upon the complaint of the aggrieved husband (or in exceptional circumstances by a party whom the husband had entrusted with the care of his wife).
The Supreme Court called the law unconstitutional because it "treats a husband as the sole master." However it is still a sufficient ground for divorce as ruled by the Supreme Court.
KEYWORDS: extramarital sex, divorce, consensual sexual intercourse, unconstitutional
INTRODUCTION
Adultery- The word itself was forbidden in the Indian culture and people hardly talked about it openly. It was proscribed even to discuss adultery in public places, but with the increase in the means of communication and media, these things are no longer considered taboo in the present scenario, especially in metropolitan towns where adulterous relationships are on the rise and marriages are falling apart and homes are breaking down due to this reason. Perhaps every educated person knows that adultery is a sexual liaison that somehow infringes on a marital relationship. The true meaning of the word lies in your own perception of an association and that of bonding. The relationship of marriage was and is still the most sacred correlation in all senses and if someone commits adultery, he/she renounces the marriage vows and breaches the trust and love on which a marriage is based.
Adultery can be defined as “An intended sexual contact between two people of the opposite gender who are not married to each other under the law”. In other words, Adultery is a physical relationship between a married man and a woman who is not his wife or between a married woman and a man who is not her spouse. Having bodily contact with someone outside of marriage and dishonesty by a married person to the marriage bed is regarded as adultery. When any man and woman cohabit and bed together without marriage and one or the either is married to someone else, it is considered an adulterous act. A consensual sexual act between two individuals who are not lawfully wedded to each other is Adultery. Lust, vulgarity or unchastity of thought or an act for someone who is someone else’s spouse is adultery.
Adultery is also known as infidelity, philandry, extra-marital affair or physical betrayal in marriage. Adultery is different from rape in the sense that adultery is voluntary while rape is not. The consent of both individuals for a physical relationship is a must for adultery to exist. Earlier, the term was associated with the married woman only who got involved in adulterous acts with someone who wasn’t her husband but now the term is applied to married men as well and if either one is unmarried, then he/she is also considered adulterous. Adultery is categorized into two types:-
Single adultery: If the relationship is between a married person and an unmarried person.
Double adultery: If both the partners involved are married to someone else.
“Thou shall not commit adultery,” says the seventh commandment. Bible considers adultery as an immoralist act and an offence. Adultery is an unrighteous act which affects the faith and lives of people and causes a lot of misery for the sufferers. People committing adultery must be punished under the law. Legally, the word has been defined in various ways. The legal system or the constitutions of all the countries define adultery in different ways, but the basic theme is physical intimacy outside the marriage with the person who is not the spouse. Alienation of affection or desertion by one partner for a third person is also regarded as a form of adultery by some countries.
Adultery can be defined as a voluntary physical relationship between two individuals who are not married to each other amongst whom both or either are wedded to someone else.
NON-MONOGAMY, INFIDELITY, FORNICATION AND ADULTERY
A marriage in which it is acceptable for the husband or wife to have sexual relationships with other people other than their spouse is a form of non-monogamy. The resulting sexual relationships the husband or wife has with other people, although could be considered to be adultery in some legal jurisdictions, are not treated as such by the spouses. Infidelity is another closely associated Latin word, "unfaithful" (fides: faith). Infidelity is having sex with someone who is not one’s husband, wife or regular sexual partner.1 Some cultures have a distinguished interpretation of the term infidelity. In some legal systems, it might be tolerated by the jurisdiction, while in others the same act is adultery and a crime. Fornication is a term which refers to sexual intercourse between consenting unmarried partners. Hence in no way related to adultery.
RELIGIOUS PERSPECTIVES AND LEGAL SANCTIONS
Adulterers have always suffered from society's disapproving attitude towards them, the nature of which varies widely depending on local culture, religion and values. Historically, adultery was rigorously condemned and punished, usually only as a violation of the husband's rights. Among such people, the wife was considered the property of her spouse, and adultery was therefore identified with theft, theft of an aggravated kind. In some parts of Africa, the seducer was punished with the loss of one or both hands, as one who has perpetrated a robbery upon the husband. It is not the seducer alone who suffered, dire penalties were visited upon the offending wife by her wronged spouse. In many instances, she was made to endure bodily mutilation which will, in the mind of the aggrieved husband, prevent her from ever being a temptation to other men again. However, the wife was allowed no cause against the unfaithful husband; and this discrimination found in the practices of ancient people is moreover set forth in nearly all ancient codes of law. In ancient India, the laws of Manu are striking on this point, "though destitute of virtue or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshipped as a god by a faithful wife"; on the other, hand, "if a wife, proud of the greatness of her relatives or (her own) excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many".
Since ancient times, adultery has been subject to severe sanctions, including the death penalty, and stoning to death. It has been a ground for divorce under fault-based divorce laws. In most jurisdictions, adultery is illegal and figures in the penal laws. In the United States, laws vary from state to state. In Pennsylvania, adultery is technically punishable by 2 years of imprisonment or 18 months of treatment for insanity, in Michigan adultery carries a potential life sentence while in Maryland, adultery is punishable by a fine of ten dollars. In Canadian law, adultery is defined under the Divorce Act. In Pakistan, adultery has been criminalized by a law called the Hudood Ordinance, which specifies a maximum penalty of death. In India, adultery is criminalized under S. 497 IPC, while in civil law both husband and wife can seek divorce on grounds of adultery.
SECTION 497 OF INDIAN PENAL CODE
Section 497: Adultery
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, the wife shall not be punishable as an abettor.
With regard to prosecution, the law read: "198. Prosecution for offences against marriage. No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence. For the purposes of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said 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 offence was committed may, with the leave of the Court, make a complaint on his behalf.
Decriminalization of Section 497
Due to this problematic interpretation, the Supreme Court in December 2017 decided to accept the public interest litigation, (PIL) in which it has been prayed that the Court strike down or entirely abolish Section 497 of the Indian Penal Code.
It has been argued that the section violates two articles of the Constitution of India- Article 14 and Article 15.
Article 14 reads as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."
On accepting this petition, the Court in its initial observations noted that this was not the first petition challenging the section - debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus "creates a dent on the individual independent identity of the woman."
The arguments by the party opposing this decriminalisation- the Centre- states that the section "supports, safeguards and protects the institution of marriage... Stability of marriages is not an ideal to be scorned." It further argues that if the petition is allowed, then "adulterous relations will have more free play than now." As an alternative, it provides that the recommendations of the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee recommended that the wording of the section be changed to: "Whoever has sexual intercourse with the spouse of any other person is guilty of adultery..." to tackle the problem of gender bias which arises from the reading of the current section.
Judgement
The Court began to hear the arguments on this petition on 1 August 2018. The Court said that if the party challenging this section can simply prove that it violates Article 14 of the Constitution of India, then the section will be struck down.
A five-judge Constitution bench of the Supreme Court unanimously ruled on 27 September 2018 to repeal Section 497, thus eliminating it as an offence in India.
While reading the judgment, Chief Justice Dipak Misra said, "it (adultery) cannot be a criminal offence," however, it can be a ground for civil issues like divorce.
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
Section 497 IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Section 198(2) of CrPC which specified how a complainant can file charges for offences committed under Sections 497 and 498 IPC.
Advocate Jayna Kothari, Executive Director of CLPR, represented the intervenor Vimochana. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in the Puttaswamy case. She argued that the right to intimate association is a facet of privacy that is protected under the Constitution.
Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as property of the husband and cannot have relations outside of marriage. The same restrictions, however, did not apply in the case of the husband. Section 497 violates the right to privacy as well as the liberty of women by discriminating against married women and perpetuating gender stereotypes.
On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.
CONCLUSION
In light of the above critical analysis, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changed times, the law is neither socially apt nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.