top of page

Decriminalization of Adultery

By:- Team Legal Specs


Introduction


Marriage is a sacred tie in which loyalty is essential. Both the male and the woman must be faithful to one another. If a person has an extramarital affair, it is considered that she or he has violated her or his spouse's trust.


If any side of a marriage engages in voluntary sexual intercourse with anyone other than his or her spouse, we term that person an adulterer. Adultery is synonymous with corruption.


S. 497 – Adultery –If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.


Section 497 of the Indian Penal Code 1860 and Section 198 of the Code of Criminal Procedure contain laws concerning adultery. Previously, adultery was a criminal offence in India, which maintained that the male who committed adultery was responsible while married women were not. It said that the offender is totally liable for sexual liaision. It has been considered a crime for the past 1508 years, but with the Supreme Court's decision in Joseph Shine vs. Union of India, adultery has been stigmatised.


Adultery as a Reason for Divorce to Different Religions and Communities

India is recognised for its harmony in diversity. India is a secular country that values all religions. Every religion has its own point of view. However, every faith has its own perspective on adultery. Although each religion has its own point of view, the fundamental point remains the same. Every religion considers adultery to be a sin.


Hindu Divorce Laws Regarding Adultery:

In India, adultery is defined as a basis for divorce in Section 13(1) of the Hindu Marriage Act, 1955.

Section 10 of the Hindu Marriage Act of 1955 defines it as a reason for judicial separation. It specifies that either of the parties to a marriage can seek for a judgement of judicial separation on any of the grounds listed in Section 13(1).


Professor Kamala Kanta v. Sulekha Bairagi - In this case, Bairagi used Sections 10 and 13 of the Hindu Marriage Act 1955, claiming that his wife frequently visited his correspondence's home and was even discovered in a compromising circumstance. In this case, judicial separation was granted since the judgement was made on the merits of the evidence in favour of the petitions.


Christian Divorce Laws Regarding Adultery:

The Indian Divorce Act of 1896 and the Indian Christian Marriages Act of 1872 describe Christian law in India on divorce and judicial separation. Section 22 of the Indian Divorce Act defines divorce as mensa et toro and provides for a judicial separation decision.

According to Christian law, the couple must first acquire an annulment from the church before proceeding to court.


Muslim Divorce Laws Regarding Adultery:

According to the Quran, adultery is a severe penal offence that is dealt with by stoning to death. In Muslim law, a husband has the authority to divorce his wife provided he provides sufficient proof, however in the case of a fraudulent acquisition, the wife can either ask her husband to rescind the acquisition or divorce him under Quran.

In the case of Tufail Ahmed v. Jamila Khatun, the Allahabad High Court ruled that such wives who are not guilty of adultery may use this as a cause for divorce.


Joseph Shine v. Union of India

In this case, Joseph Shine filed a writ petition under Article 32, claiming that Section 497 of the IPC and Section 198 of the Cr.P.C breach the constitutional validity of Articles 14, 15, and 21. The petitioner, Joseph Shine, contended that the provision for adultery on the basis of gender is arbitrary and discriminatory, and that such a legislation degrades the dignity of a woman.

Article 14 guarantees equality before the law, which indicates that everyone is equal. However, Section 497 of the Indian Penal code 1860 ensures equality between men and women by allowing only the spouse to bring a complaint and denying women any rights to register a case.

The petitioner also claims that women are given special protections under Article 15(3) of the Indian Constitution, but Section 497 violates Article 21 of the Indian Constitution, which guarantees the right to privacy. The right to privacy includes the ability to make one's own decisions about intimate matters.


Verdict

In this case, a five-judge panel led by Chief Justice Deepak Mishra issued a decision striking down Section 497 of the IPC.

Although the Supreme Court ruled that this provision is discriminatory, it is nevertheless utilised as a reason for divorce.


Conclusion

As we have seen, Adultery is a crime that violates Articles 14 and 15, as well as 21 of the Constitution, and it is used as a reason for divorce in the courts. The gender discrimination factor comes into play since S.497 of the IPC, which makes it a criminal offence for a male to have a sexual connection with a married woman, exempts the woman involved. If existing laws pertaining to adultery remain in effect, it will demonstrate disdain to women, which is unconstitutional.

The verdict in this case is respectful since India supports equality, where women should have same rights as males. Despite the fact that the act is done out with the permission of both adults, only one of the individuals is prosecutable.


FAQs


1. In which case was Adultery decriminalised?

Ans – Joseph Shine v Union of India


2. Who gave the verdict of Joseph Shine v Union of India?

Ans - A Five-Judge Panel led by Chief Justice Deepak Mishra


3. Adultery was violative of which sections of Indian Legislations?

Ans- Adultery is a crime that violates Articles 14 and 15, as well as 21 of

the Constitution


4. Where is Adultery defined in Indian Legislations?

Ans - Section 497 of the Indian Penal Code 1860 and Section 198 of the Code of Criminal Procedure contain laws concerning Adultery.


51 views0 comments

Recent Posts

See All
bottom of page