Law of Adultery: Recent Development

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• INTRODUCTION / CONCEPT OF ADULTERY

Adultery is described as a married person’s consensual sexual activity with a partner other than his or her spouse. In various states and laws, the legal definition of adultery varies. Adultery is a serious crime in India and hence there are provisions relating to the Indian Penal Code of Adultery, 1860. Adultery is described by Section 497 as:

“Anyone who, without the permission or connivance of that man, has sexual intercourse with a person who is and whom he knows, or who has cause to assume to be the wife of another man, such sexual intercourse does not contribute to the crime of rape, is guilty of the offence of adultery and shall be punishable with imprisonment of either description for a term of up to five years or with a fine or witness”.

It is necessary to create an institution which, from the very beginning, does not seek to maintain the sanctity of marriage, but seeks to protect the institution’s structure.

It was asserted in the case of “V. Revathi v. Union of India” that the man was a seducer, not a feminist. It was essentially claimed that Section 497 would not include the wife with the right to sue the husband who committed adultery with another wife. In its attempt to imprison only the ‘outsiders’ of marriage, the above-mentioned statute hits and the group often claims that it punishes the stranger who enters into a marital home and threatens the sacredness of marriage.

In India, IPC Section 497 has a history of 150 years of colonial period and, since its introduction, has been spinning into contentious and dubious controversies on many accounts, such as its approach to gender inequality, challenging the equity clause, representing cultural conflicts, and strong objections have been raised either for its preservation, modification, or full alteration and elimination from penal statues.

• HISTORY

In ancient India, events relating to husbands having secret relationships with other women and wives adultery after their husband were not uncommon. Adultery was never favored by Hinduism; it was founded as a mortal sin. Marriage is a pious and spiritual relationship, according to Hindus, and the institution of marriage should be maintained all the time.

Hindu law, for both religious and social purposes, is very stringent against adultery. The ancient Hindu law also separated married women’s partnerships from those who are single, and the former attracted harsher punishment. There were also numerous acts concerning different castes of women in the treatment of adultery. The Ancient Hindu Community was not free from the Adultery Hurdle. There were several tales of Hindu myths in which God himself indulged in adulterous thoughts and acts. For example, because of the mere accusation of adultery, Lord Rama banished his wife into the forest. Chapters on the crime of adultery is set down in the manuscript. The book discusses why cheating exists, how to secure it, and the ruthless retribution for those in such relationships who are caught. This sin was punished by death centuries ago, either by public stoning, hanging, or even worse.

Lord Macaulay did not approve adultery/infidelity as a clause of IPC when the Indian Penal Code was drafted, but in the second report the presidents disagreed with Macaulian’s views of adultery and put strong emphasis on his marks and concluded that committing adultery was a heinous crime and that the perpetrator must be responsible for punishment. Section 497 was then founded in the Indian Penal Code.

Section 497 of the Indian Penal Code was questioned shortly after the Constitution of India, on the basis that it generally goes against the spirit of equality inculcated in the Constitution. One of the most contentious cases was in 1951, when Mr Yusuf AbdulAziz, who was guilty of adultery, argued before the Bombay High Court that, in violation of Articles 14 and 15 of the Constitution, Section 497 of the IPC is unconstitutional because it acts arbitrarily between a man and a woman by making the former entirely responsible for adultery. Therefore, he claimed, there was sexism against women and against men purely on the grounds of sex.

• SUPREME COURT’S TAKE ON ADULTERY

The Supreme Court declined to revisit its 2018 decision in which adultery was decriminalized.

A five-judge Review Bench led by India’s Chief Justice Sharad A. Bobde reinstated a Constitution Bench that had stripped adultery out of the penal statute book in September 2018.

“We thoroughly went through the petitions for review and forwarded the relevant documents. We do not find any ground, anyway, for the same entertainment. Accordingly, the appeal requests are dismissed,” the review court said in a short order recently.

A Constitution Bench headed by then Chief Justice Dipak Misra, who ruled that Section 497 (adultery) of the Indian Penal Code could not “command” married couples to keep true to each other for fear of penal punishment, was the original judgement.

If one cheats, two people may part, but Justice Misra had observed in his separate opinion that adding criminality to infidelity is going too far.

The court had argued that little evidence existed to support arguments that the elimination of adultery as a felony would lead to “chaos in sexual morality” or a rise in divorce.

Section 497 considers a married lady, held by the Bench, as a commodity for her husband.

Adultery is not a felony if the henpecked husband connives or consents to his wife’s extra-marital affair. “Article 497 considers a married woman as the “chattel” of her husband. The provision is a result of the dominant social superiority of men 150 years ago.

The husband is not the owner… Obituaries of these past perceptions should be written,” Misra, then chief justice, had observed.

The Bench also held that the CrPC’s Section 198(2), which allowed the cuckolded husband the exclusive right to sue the lover of his wife, was simply unconstitutional.

However, adultery can be a cause for civil remedies such as marital separation, the 2018 verdict had said.

• HOW LAW OF ADULTERY HAS CHANGED?

On 27 September 2018, the Supreme Court’s five-judge Constitution bench unanimously ruled to revoke Section 497 and that is no longer a crime in India.

Chief Justice Dipak Misra said when reading the decision, “it (adultery) cannot be a criminal offence,” but it can be a reason for civil problems such as divorce.

Joseph Shine, a non-resident of Keralite, filed public interest lawsuits pursuant to Article 32 of the Constitution in October 2017. The petition questioned the constitutionality of the crime of adultery read in Section 198(2) of the CrPC pursuant to Section 497 of the IPC. Furthermore, when her husband engaged in sexual relations with an unmarried woman, a married woman could not file a lawsuit under Section 497 IPC. This was in view of CrPC Section 198(2), which specified how a criminal would pursue charges under IPC Sections 497 and 498 for offences committed.

Intervenor Vimochana was represented by Advocate Jayna Kothari, CLPR’s Executive Director. In citing the universal right to privacy, as acknowledged by the Supreme Court in the case of Puttaswamy, she attacked the clause that categorized adultery as an offence. She argued that a facet of privacy which is protected under the Constitution is the right of intimate association.

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.

On 27.09.2018, Section 497 of the Indian Penal Code was unanimously struck by the 5 Judge Bench of the Supreme Court as breaching Articles 14. In the Constitution, 15 & 21.

• RECENT DEVELOPMENTS

The Court refers the case to CJI to issue necessary directions to shape the Bench of Five Judges

A petition filed by the Ministry of Defense (MoD) seeking to exclude armed forces personnel from the scope of a 2018 Constitution Bench judgement that decriminalized adultery was accepted by the Supreme Court on Wednesday.

Incidentally, one of the key arguments provided by the government for obtaining exemption is that “there will always be a concern in the minds of military personnel who operate far from their families under difficult circumstances about the family engaging in untoward activity.”

The court referred the case to India’s Chief Justice to issue appropriate orders to form a five-judge bench to clarify the effect on the armed forces of the 2018 judgement. In the petition, the government said that Army, Navy and Air Force staff were a’ distinct class.’ Unique laws, the Army Act, the Navy Act, and the Air Force Act were regulated by them.

Adultery contributed to an unbecoming conduct and a violation of discipline under certain three Acts. These special laws placed limitations on the human rights of workers working in a special situation involving the utmost discipline. The three laws were covered by Article 33 of the Constitution, which allowed the government to change the basic rights of the members of the armed forces. “Instability” was created by the 2018 verdict. It allowed the decision to cover a worker charged with pursuing an adulterous or illegal relationship.

“In cases of adultery, and where there is an allegation against the defendant, a claim may be made that we are circumventing the statute and what could not be achieved expressly by these Actions is done directly,” said the Ministry.

DISTINCT CLASS

It will break down the professionalism required for the execution of service, which is vital for national security. Regardless of the 2018 ruling, the rules of the Acts should be permitted to continue to control the workers as a “distinct class”.

It claimed that at the time, the court would not have been aware of the various situations in which the armed forces worked.

“It has to be remembered that the armed forces function in a world entirely different and distinct from individuals. Honor is a sine qua non of the department. Courage and commitment to service is part of the unwritten contract regulating the veterans of the armed forces, even at the cost of one’s life,” said the Center.

In addition, the government found out that, unlike Section 497, although they were convicted of a crime, the rules of the three Acts did not distinguish between a male and a woman. “De hors 497, if she ventures into an adulterous affair, the Army would pursue equally against such a woman subjected to the Act,” it said.

CIVIL REMEDY

“The government also pointed out that, despite striking down adultery as a crime, the court had held that it was “undoubtedly a religious wrong for the family and the partner. Furthermore, the decision acknowledged that there was a legal solution as adultery was a basis for divorce.

The 2018 judgement concluded that the statute cannot “command” married couples to stay faithful to each other by Section 497 IPC for fear of criminal punishment.

“If one cheats, two people may part, but attaching criminality to infidelity is going too far,” the judgement said in 2018.

Section 497 viewed a married woman as her husband’s product. If the cuckolded husband connived or consented to his wife’s extra-marital affair, cheating was not a felony. A married woman was considered in section 497 as the “chattel” of her husband. The clause was a reflection, the court had noted, of the social superiority of men prevailing 150 years earlier.

The owner is not the husband… It is appropriate to print obituaries of these past impressions,” it said

CONCLUSION

Polygamy has been illegal over the years, while monogamy has become widespread. Today, personal laws are fair, working, efficient and reliable. In marriage laws, the definition of adultery is much narrower in scope than the definition of adultery as a felony. It’s almost difficult to commit polygamy or have extramarital affairs without triggering legal litigation. Women in society have started to develop their own identities and are no longer regarded simply as the chattel of their husbands. In the criminal code, there are no grounds for maintaining adultery as a crime. Our personal rules are adequate for adultery as a legal wrong to be taken care of.

Author: Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.