LAW OF ADULTERY
BY NUPUR GARG
Adultery is defined as the consensual extramarital sexual relationship that is considered objectionable on social, religious and, moral and earlier on the legal grounds as well. It is a delinquent act which violates the societal norms. Since the last 158 years, it was treated as a crime but after the verdict of Hon’ble Supreme Court in Joseph Shine v. Union of India, adultery is decriminalized and remained merely a civil wrong rather criminal offence. Earlier under the section of adultery only husband was allowed to prosecute against his wife whereas wife was not given the same right. In total this act was ignorant for the adulterous act of the husband.
Further if we see the history, we all know that India is a country which is known for all its religions. Every religion follows its own views and objectives. However, in the matter of adultery more or less every religion is highly critical. Different religions have different views on adultery but the core view remains the same. In every religion, adultery is treated as a crime. However, the forms of punishment may vary among religions. It is treated as a delinquent act as it violates the religious sentiment of every religion.
ADULTERY IN LAW
In India, Section 497 of Indian Penal code (IPC) 1860, defined adultery as:
“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 a case, the wife shall not be punishable as an abettor”.
In September 2018 supreme court had struck down the section 497 of Indian penal code that makes adultery a punishable offence for men. This was done by the constitutional bench of five judges comprising of Justice Deepak Mishra, Justice Ajay Manikaro Khanwilkar, Justice Rohinton Nariman, Justice D.Y.Chandrachud and Justice Indu Malhotra. The section was struck down in the case Joseph Shine V. Union of India.
Section 497 was illegal as the very reason for criminalizing adultery was the hypothesis that a wife is treated as the husband’s property and is forbidden to have affairs beyond marriage. However, in the case of the husband, the same limitations were not applicable. Section 497 breaches woman’s right to privacy and equality by discriminating and perpetrating gender toward married women.
ADULTERY AS A GROUND OF DIVORCE ADULTERY
The act of adultery is recognized by the Special Marriage Act, 1954 as it is a valid ground for divorce if the respondent had voluntary sexual intercourse with a person who is not his/her spouse, after solemnization of the marriage. Under the act adultery is a separate offence, and it does not need to be presented with any other offence in order to file a petition for divorce or judicial separation.
Calcutta High Court in the case of Sari v. Kalyan, 198, mentioned that though adultery does not have the burden of preponderance, it is a serious matter, and it needs to be proved beyond any kind of reasonable doubt. This is because when it comes to adultery, there may not exist prima facia evidence, but the circumstantial evidence needs to be sufficed.
ADULTERY UNDER HINDU MARRIAGE ACT 1955
Section 10 of the Hindu Marriage Act, 1955, says adultery is defined as a ground for judicial separation. The section states that the parties can file a decree for judicial separation or divorce because they are mentioned under Section 13(1) of the act. However, it is irrespective of the fact that before or after the commencement of adultery marriage being solemnized.
In the case of Sulekha Bairagi vs Prof. Kamala Kanta Bairagi, Calcutta High Court, the matter was that according to the husband, his wife used to visit the co-respondent and was caught in a compromising position. The wife was also accused of neglecting her marital duties. The court took the decision in favour of the petitioner, i.e., the husband on the merit of the provided evidence and thus granted the judicial separation.
The above cases prove the fact that decisions of such cases are bases on the facts and nature. There need not be similarity, as the decision is on a merit basis.
The Supreme Court has acknowledged 150 years old law on adultery as unconstitutional, which treats husband as the master of his wife. The then Chief Justice of India declares, The adultery law is arbitrary and offends the dignity of a woman.
According to me, decriminalization of adultery is a constructive step towards a progressive society by striking down the law which deprived the dignity of women. It is a deviant behaviour as it is unethical and immoral as it violates the sanctity of the institution of marriage which is believed to be a sacred institution of society.
However, this is just in the halfway. Our country still has to cover a long way in order to eradicate discrimination and to ensure gender equality. I am of the opinion that society should also rise from the patriarchal mindset.
Along with Section 497 of IPC, Section 198 of CrPC is also declared unconstitutional thereby decriminalizing the offence of adultery. Justice DY Chandrachud asserted that, the history of Section 497 reveals that the law on adultery was for the benefi of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency.
The Indian Express by Express web desk
BBC News article