This article has been written by Kajal Kumari studying in Galgotias University, Greater Noida.

Introduction

Supreme Court of India declared 158 year old adultery law as unconstitutional. The term “Adultery” is derived from a latin word ‘Adulterium’ which means sexual intercourse with a person other than one’s own spouse. Generally adultery means consensual sexual intercourse with the wife of another man.The act which indulge in any type of consensual sexual relationship between a married person and a person who is not their spouse is known as adultery. Five judge bench of Supreme Court of India struck down the section 497 of Indian Penal Code, 1860 along with 198(2) of the Criminal Procedure Code, 1973 as unconstitutional. Section 497 of the Indian Penal Code,1860 dealt with adultery and Section 198 of the Criminal Procedure Code, 1973 deals with prosecution for offences against marriage

What was the adultery law in India

Adultery law was defined under section 497 of the Indian Penal Code, 1860 which stated “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”.

Punishment was given under this section (section 497 of the Indian Penal Code, 1860) which may extend to imprisonment of five year, or with fine, or with both. Under this section wife was not punishable even as an abettor.

Essential ingredients of section 497 of the Indian Penal Code, 1860:-

• Person must committed sexual intercourse with the wife of another man;
• The person must have knowledge or has reason to believe that the woman is another man’s wife;
• Husband has not given consent or connivance for sexual intercourse;
• Such sexual intercourse not amount to offence of rape;
• Woman’s consent or willingness is not excuse to the crime of adultery.

As per section 198 of the Criminal Procedure Code, 1973, no Court shall take cognizance of the offence (adultery) under this section except upon a complaint made by the husband of the woman or in absence of husband if another person who had care of such woman on the behalf of the husband then such person made with the leave of the court if the adultery was committed at that time.

Under section 497 of the Indian Penal Code, 1860 woman was not considered even as an abettor and probably the rational behind not punishing the woman was that patriarchal perspective of seeing the woman as she is the property of the husband and also there was no remedy available to the wife if her husband commits adultery because this section (section 497 of the Indian Penal Code, 1860) only talks about punishing the other man who has sexual relationship with his wife, only one remedy is available to the wife that is divorce. In Yusuf Abdul Aziz v/s. State of Bombay, 1954, it was held that section 497 of the Indian Penal Code, 1860 is valid and the classification is given on the basis of gender is reasonable and also State can make special provision for women and children under article 15(3) of the Constitution of India and that is why it is not unconstitutional.

Under section 497 of the Indian Penal Code, 1860, prosecution was difficult because:-

• It is a private matter and not public matter;

• There must be clear proof of adultery;
• This is based on circumstantial evidence.

The offence of adultery is non-cognizable ( without arrest warrant a police officer cannot arrest the accused) and it is also a bailable offence. It is also a compoundable offence, compoundable by husband against whom adultery is committed.

As per section 198(2) of the Criminal Procedure Code, 1973, only husband is allowed to bring charge against the person who commits adultery with his wife but under this section wife is not allowed to bring charge if his husband commits adultery with another woman.

Adultery at present is no more a criminal offence in India

In Joseph Shine v/s. Union of India, 2018, five judge bench struck down the section 497 of the Indian Penal Code, 1860 along with section 198(2) of the Criminal Procedure Code, 1973 as unconstitutional.

In Joseph Shine v/s. Union of India, On October 2017, Joseph Shine, a non – resident Keralite, filed Public Interest Litigation under article 32 of the Constitution of India. The petition challenged the constitutionality of the offence of adultery under section 497 of the Indian Penal Code, 1860 along with section 198(2) of the Criminal Procedure Code, 1973.

Section 497 of the Indian Penal Code, 1860 criminalised adultery by imposing punishment to the person who commits sexual intercourse with the wife of another person without that person’s consent or connivance.

Section 198(2) of the Criminal Procedure Code, 1973 dealt with how a complainant can file charges for offence committed under sections 497 and 498 of the Indian Penal Code,1860.

Issues:

1. Whether section 497 of the Indian Penal Code, 1860 is unconstitutional being arbitrary and violative of fundamental rights ?
2. Whether section 198(2) of the Criminal Procedure Code, 1973 is unconstitutional and violative of fundamental rights ?

On 27/07/2018, a five judge bench of the Supreme Court of India unanimously struck down section 497 of the Indian Penal Code, 1860 along with the section 198(2) of the Criminal Procedure Code, 1973 as being violative of articles 14,15,21 of the Constitution of India.

Explanation of Supreme Court of India’s verdict in case Joseph Shine v/s. Union of India

A five judge bench of Supreme Court headed by the Chief Justice of India Deepak Mishra declared section 497 of the Indian Penal Code, 1860 which criminalise adultery is unconstitutional and struck down the penal provision.

The bench comprising of Chief Justice Deepak Mishra, Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar and Justice Indu Malhotra held that section 497 of the Indian Penal Code, 1860 is unconstitutional. The Chief Justice of India Deepak Mishra and Justice Khanwilkar said “we declare section 497 of the Indian Penal Code, 1860 and section 198(2) of the Criminal Procedure Code,1973 dealing with prosecution of offences against marriage as unconstitutional. 

Supreme Court of India said that we are striking down section 497 of the Indian Penal Code, 1860 because of its manifest arbitrariness. As article 14 of the Constitution of India deals with right to equality and section 497 of the Indian Penal Code, 1860 only penalise men and not women, it is manifestly arbitrary and such it is unconstitutional. As article 21 of the Constitution of India deals with protection of life and personal liberty and section 497 of the Indian Penal Code, 1860 treats woman as personal property of the husband since it goes against the dignity of the woman as such it is unconstitutional. Article 15(1) of the Constitution of India prohibits the State from discriminating on grounds only of sex. The offence of adultery only considered husband as aggrieved party if his wife commits sexual intercourse with another man but the adultery law not considered wife as an aggrieved party if her husband commits sexual intercourse with another woman. The provision is discriminatory and therefore, violative of article 15(1) of the Constitution of India.

Chief Justice Deepak Mishra said “husband is not the master of wife”. He observed that “any system treating a woman with indignity invites the wrath of the Constitution that is why adultery is no longer a crime.

Justice R.F. Nariman said “ancient notions of man being perpetrator and woman being victim no longer hold good”. Under adultery law, only a man is convicted but woman is not convicted, clearly it goes against article 14 of the Constitution of India, also against article 15 of the Constitution of India which says no discrimination on ground of sex so it is discrimination against man.

Justice D.Y. Chandrachud said “control sexuality of woman hits the autonomy and dignity of woman”. When husband and wife marry, wife has not given up on her sexual freedom on her sexuality, she can also explore sexuality outside the marriage as well, since at the time of marriage or even afterwards the wife does not loose her freedom, her control over her sexuality, and section 497 of the Indian Penal Code, 1860, deprives a woman over her sexuality of her sexual freedom it goes against the concept of privacy and dignity under article 21 of the Constitution of India.

Justice Indu Malhotra said that it can be moral wrong but this case is decided by husband and wife together, it can be a civil case and can not be a crime.

Adultery is used as ground for divorce

In marital law, adultery has recognised meaning and adultery is reasonable ground for getting divorce which means if one party commits adultery then it is sufficient ground for applying for divorce. Adulterous relationship is established when a person commits sexual intercourse with the spouse of other which means two individual commits sexual intercourse who are not married to each other. Since it is voluntary relationship so it can also be termed as cheating, extra marital affair. In marriage, morality plays a very important role which means both husband and wife shall remain loyal to each other but when one partner establish adulterous relationship with other person then it means who establish relationship with other is not loyal towards his/her spouse.

After divorce, life become more difficult so before applying for getting divorce one must think consequence of getting divorce and life after getting divorce. In country like India divorce is still not accepted by the family of the person which means it still carries social stigma and if the woman is divorced by her husband then the life of woman is more difficult for her if compared with her husband. In India, most of the woman is not able to survive herself financially. If the separating couple has kids then the kids are the one who suffers the most so it is better to forgive their spouse instead of dragging him/her in court if the one who commits adultery confront in the front of other the partner.

Laws of adultery in other country

Adultery laws varies from country to country because it depends upon the religious norms and attitude of the people.

In U.S.A., those person who commits sexual intercourse with other than their spouse then such person is held liable for adultery which means if husband commits sexual intercourse with other woman then he is held liable and if wife commits sexual intercourse with other man then she is also held liable.

In U.K., adultery is not a criminal offence.

In France, if wife commits sexual intercourse with person other than her husband then wife is held liable for adultery and the period for punishment of adultery is from 3 months to 2 years of imprisonment. The husband however may pat to end her sentence by forgiving her and agree to take her back.

In Pakistan, both man and woman is held guilty if they commits adultery and punishment may extend to death sentence.

Conclusion

In India, extra – marital sex is not a criminal offence any-more. Adultery is a civil wrong as it deals with the disputes between two individuals. Criminal wrong is offence against state/society, they have potential to destabilize the society. Court observed that section 496 of the Indian Penal Code, 1860, is arbitrary, women can not be held captive by social expectations, wife is not the property of the husband, it (section 497 of the Indian Penal Code, 1860) is against articles 14, 15 and 21 of the Constitution of India. As per article 21 of the Constitution of India, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individual would be deprived of dignity and privacy. But the judgement of the Court may raise many questions, in India there are many laws which deny these rights such as restitution of conjugal rights, marital rape. Therefore, decriminalisation of section 497 of the Indian Penal Code, 1860 may have a ripple effect. It can be viewed as something which places a reasonable restriction, which means that there are valid limitation on sexual autonomy.