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ADULTERY AND LAW: ANALYSIS

Author: Sabari K S, IV year of B.A.,LL.B.(Hons.) from School of excellence in law, TNDALU, Chennai.


ABSTRACT

This article aims to provide an analysis of the present legal and social status of adultery in India. Through this, the position of adultery before and after decriminalization is analysed. The position of adultery in India and other countries is also taken into analysis. Relevant important landmark cases and their judgments related to adultery are discussed. This article provides an insight into adultery in India.


INTRODUCTION

Adultery is a voluntary sexual activity of a spouse and an individual who is not a spouse of him/her. Simply, it is also known as a consensual extramarital relationship. It is considered objectionable on social, religious, moral, and previously on legal grounds too. Adultery has its origin from a Latin word called ‘adulterium’, meaning corrupt.

According to Section 497[1] of IPC, 1860, four essentials of adultery are

  • Sexual intercourse

  • With a person who is the wife of another man

  • Without the consent or connivance of that man

  • Not amounting to rape

The punishment was the imprisonment of 5 years or fine or both. A wife was not punished as an abettor.


ANALYSIS ON LAW IN RELATION TO ADULTERY

Yusuf Aziz vs State of Bombay[2]

In this case, the petitioner questioned the validity of Section 497, IPC as it was violative of Articles 14, 15 of the Constitution of India. The Court held that they are not violative as the immunity to women was not violative as the immunity to a woman was not discriminatory but valid points put forth by the petitioner were taken up in the Joseph Shine case. The point was that “Adultery can only be committed by man because women are not punished as an abettor”. This view was rejected in the 2018 landmark case.


Sowmitri Vishnu vs. Union of India[3]

Section 497 was challenged as violative of Articles 14, 15, and 21. But the court held that it was not violative. Because not allowing spouses to prosecute against each other law offers them a chance to make up. Also. women are considered to be a victim of man, who has unstoppable charm.


The apex court is of the stand that it is the policy of the law not to punish women for adultery and policies could not be questioned. Adultery is considered to be an offense against a matrimonial home. [4]


Why women were not punished for adultery?

During earlier days when the law was enacted polygamy was deep-rooted in society. So, women shared their husbands with other wives and extramarital affairs. Therefore, women were considered victims, who could give themselves up to any person who offered them affection and love. So, the provision was made accordingly to restrict men from having sexual relations with wives of other men and at the same time to restrict their relations with an unmarried woman alone.


Joseph Shine vs Union of India[5]

In 2018 Section 497 of IPC was struck down in this case by 5 Judges comprising of Justice Deepak Misra, Justice DY Chandrachud, and others. Further, it was held that if any aggrieved spouse commits suicide, based on the evidence could be treated as an abetment to suicide attracting Section 306 of IPC. Also, it is continued to be treated as a valid ground for divorce.


It was decriminalized because women were considered property of men, also equality was violated. These issues along with analysis of the modern era contributed to striking down. It was a landmark case.


Rights Reassured after Decriminalising

  • Right to Equality provided by Article 14 of the constitution

  • Right against discrimination as provided under Article 15 of the Constitution.

  • The right to sexual expression is guaranteed as a right to freedom of speech and expression under Article 19.

  • State interference in personal matters of an individual.


Ground for Divorce

According to Hindu Marriage Act, 1955 – Section 13(1): Any voluntary sexual intercourse with a person who is not a spouse, is a ground for divorce. Section 10 defines adultery as a ground for judicial separation. Supreme Court confirmed that adultery is a ground for divorce, though not a criminal offense. Special Marriage Act, 1954 stated that if a person had any sexual activity outside marital relation, it is a valid ground for divorce.Section 22 of the Indian Divorce Act made provisions of Judicial Separation on the ground of adultery.


Religious, Moral, and Ethical Views

In Hinduism, marriage is a relationship that is sacramental and continues for seven consequent births. So, it is sacramental needing at most loyalty. In Islam, adultery is treated as a Zina (sin). For those punishments are prescribed by God. Adulterers are to be stoned to death, accordingly.


In Christianity adultery is a sin deserving death. In Buddhism, adultery is a sin leading to suffering. The Judaist view is that there is a provision for the death penalty for adulterers.


Morally, sexual infidelity is prima facie wrong because it involves promise-breaking. Ethically also adultery is wrong. This is because cheating is not an ethical practice. Especially cheating in sex and other matters violates ethical reciprocity and fair nature.


Therefore, adultery is wrong from religious, moral, and ethical views.


ADULTERY IN VARIOUS COUNTRIES

United Kingdom

In the UK, the legal position regarding adultery is similar to that of India’s present legal position. It is decriminalized there. But it is a ground for divorce in the UK for both spouses. Spouses will not be allowed to use adultery as a ground for divorce if both were living together as a couple for six months after the sexual act outside marriage was known.


However, the way through which this was made not a criminal offense differs. In India, it was through the Joseph Shine case, whereas in the UK through a private member bill in Matrimonial Causes Act, 1923. In Taiwan, adultery is punished by up to one year in prison (imprisonment).


Indonesia

In adultery law, Indonesia is a little strict as it considers it a crime. But actually, Indonesia is drafting laws that criminalize all sexual activity that is consensual outside wedlock.


United States of America

In the USA, 21 states, adultery is considered to be illegal. But the provision is not discriminatory, unlike India’s previous position. Both men and women can sue each other for adultery. Anyways, according to a BBC report, most Americas do not consider it to be a crime. Apart from these 21 states, in other states, it is either not a crime or applies only to a married woman. Certain states are considering their position to decriminalize adultery laws.


Islamic States

Adultery is prohibited in Muslim law, so it is a criminal offense in countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh, and Somalia.


South Korea

In 2015, Supreme Court struck down adultery in a case in which a man got two years imprisonment for adultery. The court held that the law violating self-determination as well as privacy.


More than 60 countries around the world had done away with laws that criminalized adultery.


CONCLUSION

In analysing adultery in this present modern era from a development viewpoint also concerning the position in other countries, the striking down of discriminatory Section 497 is appropriate. The judgment given by the Apex Court in Joseph Shine vs Union of India is a landmark that will stand high, whenever any dispute in this regard pops up. If this was not done, our country would have remained legally backward with such a biased and disputed provision of Section 497. Also, by keeping it as a ground for divorce, the apex court has acknowledged the need for an aggrieved spouse.

The decriminalization of Section 497 in a way helped in improving the status of women. This reassured equality. Also, in another point of view, even a male’s position has improved because only he was punished for a consensual act. Therefore, this decriminalization is positively beneficial from both a social and legal perspective.


ENDNOTES

[1] This section was struck down by Supreme Court of India in the Joseph Shine case in 2018.

[2] 1954 AIR 321, 1954 SCR 930

[3] AIR 1988 SC 835.

[4] AIR 1988 SC 835

[5] 2018 SCC Online SC 1676