ADULTERY - POLITY
News: Adultery
as misconduct and judicial musings
What's in the news?
● More
than four years ago, the Supreme Court of India decriminalized adultery in its
landmark judgment, Joseph Shine versus Union of India (September 2018).
● It
held Section 497 of the Indian Penal Code (on adultery) along with Section 198
of the Criminal Procedure Code to be unconstitutional on the premise that these
provisions were violative of Articles 14, 15 and 21 of the Constitution of
India.
Key takeaways:
● Under
Article 33, Parliament has powers to restrict or abrogate the fundamental
rights of certain categories of persons, including members of the armed forces
to ensure the proper discharge of their duties and the maintenance of
discipline among them.
● The
Court, recently, without going into the nuances of relevant sections of the
special legislations (i.e., the Army Act and similar special Acts) said that in
Joseph Shine it 'was not at all concerned with the effect and operation of the
relevant provisions' and 'it is not as if this Court approved of adultery'.
What is mean by adultery?
● It
is a voluntary sexual intercourse
between a married person and a person who is not their spouse.
SC Judgement:
● A
five-judge Review Bench led by the Chief Justice of India upheld the September
2018 verdict of the Constitution Bench which had struck adultery out of the
penal statute book.
Centre’s stand on Adultery:
● Adultery
should remain in the Indian Penal Code as it ensures the sanctity of the
marriage, and is for public good.
What is IPC Section 497?
● As
per Section 497 of IPC, it is a punishable
offence for a man to have sexual intercourse with a married woman without the
consent of her husband.
● The
man committing such an offence shall be imprisoned for five years or more and
can also be asked to pay a fine.
● In
India, adultery was a ground for divorce under Section 13 (1) of Hindu Marriage
Act, 1956.
● The
42nd report of the Law Commission of India Report in 1971 and the Malimath Committee on Criminal Law
Reforms of 2003 recommended amendment to the adultery law. Both reports
suggested that Section 497 of the IPC
should be made gender-neutral.
Concerns associated:
● One
big concern regarding this law is that it does
not appear to be gender-neutral.
● Section
497 does not enable a woman to file a complaint against her husband when he has
had sexual intercourse with another woman.
● Section
497 treats a married woman as her
husband’s “chattel”. The provision is a reflection of the social dominance
of men prevalent 150 years ago.
1. Treats woman as a property of man:
● The
law is founded upon the idea that the status of the wife in a marriage is akin
to that of the property of the husband.
● The
power is vested in a husband to control
the sexuality of his lawfully wedded wife.
● It
reinforces the submissiveness of women within the marriage.
2. Criminalizes only the man and not the woman
involved:
● The
law is sexist in nature; it only criminalizes
the conduct of the man while excusing the woman.
3. Does not allow the wife to prosecute her adulterous
husband:
● Section
497 gives husbands the exclusive right as an aggrieved party to prosecute the
adulterer in a case involving his wife
● However,
a similar right has not been conferred on a wife to prosecute the woman with
whom her husband has committed adultery.
4. It is adultery only when it involves a married
woman:
● Section
497 does not take in cases where the husband has sexual relations with an
unmarried woman
● Marriage is a social
contract and breach should be only civil.
● Adultery
law was brought in 1860. The social scenario has changed a lot since then.
Adultery should not be treated as a criminal offence now.
● Although
adultery is the basis of divorce under section 13 (1)(i) of The Hindu marriage
1955.
5. If the consent of the husband was received it is
not adulterous:
● It
observed that the fulcrum of offence within the Section is destroyed if the
husband were to consent to the wife having a relationship with another man.
Challenges:
● It
will encourage extra-marital affairs
leading to conflicts in families.
● It
may lead to more number of divorce
cases.
● It
may have a negative impact on children
in case of separation between wife and husband.
● Some
experts think that it will destroy the ancient institution of marriage and culture in India as it promotes westernisation.
WAY FORWARD:
● It
is time to revisit all archaic laws in India. The basic theme which runs
through all the laws should include human
dignity, personal liberty, gender equality etc.
● To change the social outlook in a patriarchal
society, it is necessary that laws are designed to protect and empower
women.
● When
the laws by themselves sanction the submissiveness of women, people will
continue to hold social prejudices against women.
● Most of the countries
around the world have decriminalized adultery.
It is time for India to follow suit and make it a civil offense.
● The
center should make amendments in the law and replace the word husband with
spouse to make it gender neutral.
● It
is the responsibility of both husband and wife to save the sanctity of
marriage. Change in Adultery law must be taken in the right spirit.