This Article is written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The article discusses in detail the concept of adultery, its stance in India and the consequential effect of legalising the same.

History of Adultery

The findings of Adultery law date back to the code of Hammurabi, in which adultery was embraced in the seventh commandment. Adultery is an extramarital affair that is considered to be wrong on social, moral, religious and legal grounds. It was used by Henry VIII of England in order to get rid of his wife Catherine Howard. Contrary to its current existence, it had a wider application in the history, and this can be said because, it applied only to commission of adultery between a man, either married or unmarried and a married woman, but also between a married man and an unmarried woman. The onus of adultery was consideration of marriage as a sacred institution and punishment for the breach of the same. Historically many cultures have considered adultery as a serious offence, and thus it even incurred severe punishments which were capital punishment, mutilation, torture etc.

Existence of Adultery Law in India

In the present form in India, the applied law commission considered adultery as an appropriate law in India in the early Independent Era and the same was further upheld by the Supreme Court in the case of Yusuf Abdul Aziz.

While these were in place, there was strong dissent from Anna Chandy, who voiced her opinion for the deletion of the clause and held it was the appropriate time to reconsider the law of adultery and evaluate it with the present status of a married woman, but following its previous fashion, the Supreme Court again upheld the law in the case of Sowmithri Vishnu v. Union of India. And the court, in addition, emphasized that though there was a change in the social scenario, it was the work of the legislature to bring the change and not of the court to decide on the policy of the law.

The adultery law which existed in India assumed the position of women as one merged with that of a man. The law punished a man who was guilty of committing adultery with a married woman, whereas the vice-versa was not applicable to women. It presumed women to be innocent victims, and hence they were not punishable for the offence of adultery. She had no independent existence in the eyes of law and was regarded as the property of her husband. The law was justified on the basis that marriage is a pristine institution that a sacred man has supposedly breached and hence, only him who was punishable.

Legislative Intent on Adultery

Section-497 of Indian Penal Code previously punished adultery making it a criminal wrong. However, the legislative intent behind the enactment of Section 497 of IPC is quite different from the one which is perceived by the critics. The Law Commission of India was given the responsibility of redrafting the Penal Code in 1847. At the time of redrafting the penal code, the commission rendered only men liable for the offence of adultery and this was done keeping in mind the position of women at that point of time and duty was cast on the law to protect the interest of women. The critics on the other hand, argue that 497 of IPC tries to dictate and intervene in the lives of two consenting adults and it tends to forget or oversee the fact of how adultery wrecks the life of other individuals. The people voicing their opinion in support of decriminalising adultery in India are the ones who define morality should be based on individuals whims and fancies.

All that was wrong with the Adultery Law in India

As rightly observed by the then CJI Dipak Misra, the law of adultery is based on a discriminative basis as it assumes one of the parties of adultery as a victim and the other as a criminal. There exists no rationale in doing so and further, it is violative of Article 14 of the Indian Constitution as it ends up creating irrational classification between the two genders.

Considering the aspect of ‘consent’, it can be said that the law laid down that the relationship of a woman with other married persons depends on the consent of her husband.This means that a woman can sleep outside her marriage with the consent or connivance of her husband. This is further laying down that the husband can control the sexuality of his lawfully wedded wife.

The adultery law is problematic in certain other aspects too, which are- the law empowers a married man to blame an outside agency for the breakdown of his marriage. If the wife chooses to sleep outside their marriage, it becomes important for the couple to consider the inadequacy of their marriage and not hold an outsider responsible for the same. It would rather make more sense if the couple approach a court for mutual divorce rather than blaming a third person and putting him behind the bars for the decline of their marriage.

Is the law deterring the Adulterer?

Rights of parties involved and the same country cannot do away with the crime which undermines such an institution. The intention behind criminalising adultery is to deter the adulterer. One may argue that the law has failed to prevent the act of adultery, but while putting forth such an argument it should be kept in mind that such failure cannot be appropriated to the law itself but to the enforcement of the law. In addition to this, in a welfare-oriented and inclusive country like India, it becomes very important to deter an adulterer because while demanding the marriage be registered in order to acknowledge and protect them.

Was there a need for amendment?

The fact that Section 497 of IPC exists with numerous ambiguities is very much evident with all the controversies and arguments surrounding it, and hence there is a bigger need to bring changes in the law relating to adultery in India.

• In order to give suggestions for making amendments in the law relating to adultery in India, it becomes important for one to analyse the definition of the law of adultery. The very second phase of section 497 of IPC mentions the phrase ‘wife of another man’, from this it is evident that it is gender discriminative as it gives out the idea that a married man having sexual relations with an unmarried woman will not be guilty of adultery.
• By inclusion of offence of adultery under the chapter tilted ‘offences related to marriage’, it hints at the aspect that the sanctity of marriage is not the one to be preserved by one spouse but it is a collective duty of both of them. But the language of the section discriminates between husband and wife as partners to marriage as ‘husband of another woman’ that is a female partner in adultery is not liable for committing the wrong.
• In recent times where the courts have come up with landmark judgments and discussions on topics like that of live-in relations and have also gone ahead in securing the rights of a woman in live-in relations, and the recent judgment on homosexuality has gone ahead in this arena and decriminalised the homosexual acts of two consenting adults. There was even a requirement for the legislature to come up with a more convincing definition on the laws on adultery.

Decriminalizing Adultery

It was on September 28, 2018, that the apex court unanimously struck down Section 497 of IPC which was relating to adultery. The bench comprised of the then Chief Justice Deepak Misra, Justice Nariman, Justice Chandrachud and Justice Malhotra. The 158-year-old law of colonial era was struck down by the court which it said treated a woman as the property of a man. It was the second colonial-era law which was struck down by the Supreme Court in the span of a month. It had previously overturned another 157-year-old colonial law which criminalised gay sex in India.

Who challenged the Law?

Joseph Shine, a 41-year-old non-resident Keralite filled Public Interest Litigation under article 32 of the constitution, the petition challenged the constitutionality of the offence of adultery which was defined under section 497 of IPC. In a 45-page petition, Shine had liberally quoted American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft, and former UN secretary Kofi Anna in order to emphasize his views on women rights and gender equality.

However, the ruling BJP opposed the petition and further insisted that adultery should continue to be a criminal offence. In support of their argument, it was put forth that- Diluting adultery laws would impact the sanctity of marriages and making it legal would hurt  marriage bonds.

What did the Judges say?

All the five judges of the bench were of the opinion that the law was archaic, unconstitutional and arbitrary. CJI Misra held that a husband is not the master of his wife, women should be treated with equality along with men. Justice Chandrachud held, the law perpetuates the subordinate status of women, denies sexual autonomy, dignity and is based on gender stereotypes. Critics have called the law of adultery as one that is staggeringly sexist, Crudely anti-women and additionally violative of the right to equality.

The main concern of the law regarding adultery should not be that of expectations of fidelity in a marriage is right or wrong or whether adultery promotes sexual freedom. The main concern should rather be whether a state can or should monitor a relationship between adults which is too complex, sensitive and individual, and whether it is just for the courts to have absolute interference in individual matters of couples.

Have there been previous challenges to law?

It was in 1945 when the law was challenged for the first time by a petitioner, by putting forth the question of why a woman cannot be punished for indulging in the crime of adultery and further said that such an ‘Exemption was discriminatory’. Following this, the Supreme Court rejected the plea.

Since the petition of 1945, the Supreme Court has rejected similar pleas including the constitutional validity of the law. Similar pleas on adultery were rejected by the court in the year 1985 and 1988. The judge based his ideology on the concept that- “The stability of marriage is not an ideal to be scorned”. In one of the cases, there was an instance where a married woman had approached the court, demanding her right to file a complaint of adultery against her husband’s unmarried lover. The court while deciding on this case patronisingly described the plea as “Crusade by a woman against a woman”.

It was later in 1971 and 2003 that two different panels on law reform recommended that women should also be prosecuted for the offence of adultery. It was contended that- A society always detests marital infidelity. Therefore there is no good reason for not meting out similar treatment for a wife who has sexual intercourse with a man outside her marriage. These words were put forth by the judge who had led the 2003 panel. One of the recent developments in this field was in 2011, where a top court hearing another plea laid down that the law was facing criticism for “showing gender bias”.

Where else is Adultery a criminal offence?

• Adultery is considered illegal in 21 American states including New York. Whereas the survey shows that most of the Americans disapprove adultery and don’t consider it as a crime. 
• Adultery is prohibited in Sharia or Islamic law, and hence, it is considered to be a criminal offence in Islamic countries like that of Iran, Saudi Arabia, Pakistan, Afghanistan, Bangladesh and Somalia.
• Taiwan recognises adultery as a crime and imposes a punishment of up to 1-year imprisonment. Even in Indonesia adultery is considered to be a crime and in fact, Indonesia is drafting laws which prohibit all consensual sex outside the institution of marriage.
• In 2015, South Korea struck down a law on adultery, which was similar to that of the adultery law in India, where it punished a man with imprisonment for 2 years or less for the offence of adultery. The court further laid down that the reason behind striking down adultery law was because it violated self-determination and privacy.
• More than 60 countries in the world have done away with the laws of adultery according to the Indian lawyer Kaleeswaram Raj. In UK adultery is not a criminal offence like many other countries, and courts have further gone a step ahead and laid down that adultery cannot be used as a ground for divorce if they have lived together as a couple for more than 6 months after the infidelity was known.

Consequential Effects of legalising Adultery in India

By striking off Section 497 of Indian Penal Code, the Supreme Court assured the women of the country that no one can come in their way of dignity and empowerment.

Critics who favour positive consequences of legalising Adultery

Critics voicing their opinion in favour of legalising adultery put forth the view that adultery was rightly decriminalised as it was not gender neutral. If two persons want to get into consensual sex, it is no one’s concern to stop them from doing so.

How the society perceives this and how correct is this in a moral sense should be outside the purview of this law. In the eyes of law, it should just be two adults who had consensual sexual intercourse. Further, there should be no confusion between personal laws and community laws, because when it comes to legalising community laws they are done so considering the moral fabric of the society and the same is not true for personal laws.

In the 1950-55 when the Hindu Code bills and the Dowry Prohibition Acts(1961) were passed, the popular sentiment was that men are the ones who commit wrong and hence, there is a need to give a special layer of protection for women’s condition as they were in a vulnerable condition in the society at that time. But now women are literate, independent, aware of their rights, and hence, there is no need for such a law in the present scenario.

Critics who favour negative consequences of legalising Adultery

In order to maintain a smooth functioning of the society, there are  few things which are necessary and marriage is one among them. It is very much essential for society because it gives future generations a stable and caring environment. Adultery not only threatens but also destroys such an environment.

Legalising adultery can be considered something that is influenced by the western civilisation, and here an important point to be taken note of is that the divorce rate in the western countries is 52% and still on a rise. In order to stop India from following the same fashion it is very essential not to encourage extra-marital affairs which would be on a rise if adultery is decriminalised.

Conclusion

It is still to be seen where the present debate on the opinion of the Supreme Court leads us to. Although the Supreme Court has put forth its view that the law wrongly treats women as the property of men and goes against the fundamental rights, adultery is still a valid ground for divorce. Hence, it can be viewed as something which places a reasonable restriction, which means that there are valid limitations on sexual autonomy.

Hence, it can be concluded that the legal system should not regulate whom one should sleep with but rather regulate the process of separation if one of the two partners violate the sanctity of marriage. Moreover the criminalisation of broken trust in a marriage neither leads to a couple coming back to a blissful way of life nor does it change the social behaviour of the society.