ADULTERY AND ITS JOURNEY
Abraham Lincoln said,“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
But adultery seems as an exception to it, as it snatches the freedom of women on her own body and gift it to her husband after marriage. In addition, adultery only punishes the man, even when the woman is equally liable for the act. It is an age old practise which was introduced by Britishers in India. It dates back to the time when women were thought to be a person lacking judgmental skills and only a homemaker, the time when men were thought to be the seducer and the only person responsible for adultery. But now, the Supreme Court is strict in keeping the constitution at the pedestal and bringing equality wherever needed, thus, after some major historic judgements like triple talaq and Section 377 of Indian Penal Code (IPC), the Supreme Court unanimously scraped out Section 497 of the IPC that criminalise adultery. Chief Justice of India Dipak Misra, while writing the judgement, said, “The ‘beauty’ of the Constitution is that it includes ‘I, you and me’.”1
“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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punished as an abettor.”2
It is not only offensive to women, but equally wrong for men as well. The woman here is treated as a personal property of the husband with no right of her own whatsoever. If the man has taken the permission of the woman’s husband then it is not an offence but otherwise it is. Thus, it looks like the women has thought to have no rational judgement power of her own and has no agency in the whole scenario. The husband’s consent is all that matters and not the permission of the wife. The charge of adultery can only be brought by the husband and not by the wife. If the husband has a sexual intercourse outside the marriage, it is not seen as a criminal offence and only a civil offence. The wife can only ask for divorce and cannot charge him under this section. On the other hand, looking from the perspective of men, if he has a sexual intercourse with a married woman, it is only he who will get punished and not the wife who is equally liable for the offence. In fact, women are also immune from being the abettor. It is because of societal stereotype that only a man can seduce the woman and not vice versa. The whole blame is put on one party which is the men and wife is only said to be a victim. The man has to face all the court proceedings and end up in jail while the wife will live with the husband with no criminal charges against her.
BEGINNING OF THE ADULTERY LAWS
The adultery law, for the first time, was challenged in the case of Yusuf Abdul Aziz vs. State of Bombay in 19513 where the petitioner alleged Section 497 to be violative of Article 14 and 15 of Indian Constitution. It was contended that Section 497 only punishes man, even when both the parties are equally at fault and hence discriminatory. It was said that adultery law is a license for women to commit crime. The Supreme Court upheld Section 497 and said that protecting women against adultery is constitutionally valid under Article 15 (3). Supreme Court also said “it is commonly accepted that it is the man who is the seducer, and not the woman” and marked women to be the victim of the crime and not its perpetrator.
Later in 1985, Sowmithri Vishnu vs. Union of India4 came into limelight. Under adultery, only husband is said to be the aggrieved party and thus it was argued before the court of law that women should also be given the name of the aggrieved party. Supreme Court, rejecting the argument, said that adultery is a crime by a man against the husband of the wife. In order to maintain the sanctity of marriage, wife and husband cannot prosecute each other. It was also argued that if a man gets into an adulterous relationship with a married woman, he is liable, but when an unmarried woman gets into the same with a married man, she is not covered under the domain of this Section. Supreme Court said that bringing this in the ambit of Section 497 would mean a crusade between the two women. In fact, in 42nd law commission report, it was recommended that the adultery law must be gender neutral and same was supported by the Malimath Committee. It was suggested in the report, “Section 497 be suitably amended to the effect that whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.”
In the case of V Revathy vs. Union of India , in 1988, the Supreme Court observed that not including wife into the offence of adultery promotes “social good” as it gives a chance to the married couple to “make up” and keep the sanctity of marriage intact. Another remarkable point made by the Supreme Court was that Section 497 is a “shield rather than a sword”.
In all of the above cases, the Supreme Court focused more on maintaining the sanctity of marriage and not protecting the individual rights of the people involved in it.
Supreme Court took so many years to realise that Section 497 violates fundamental rights primarily Article 14, 15 and 21. The reason for such a delay is courts maintaining the institution of family, i.e., marriage and also protecting women under Article 15 (3).
SCRAPPING OF SECTION 497,IPC
After 157 years of existence of this draconian law, the Supreme Court has finally scrapped Section 497 through a unanimous judgement of constitution bench comprising Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. It dates back to October, 2017 when Joseph Shine filed a plea in the Supreme Court challenging the constitutional validity of Section 497, IPC.
ing the arguments, government lawyers argued that adultery should remain as a criminal offence as to maintain the sanctity of marriage. But the court in its ruling asked how the law preserves the sanctity of marriage when the extra-marital affair didn’t invite punishment when a woman cheats on her husband or vice versa, how punishing an outsider will maintain the institution of family. Also, to maintain the sanctity of marriage, equal rights must be given to both the husband and the wife, but Section 497 takes into consideration only those cases where the married woman is into a sexual intercourse with another man outside the marriage. It nowhere talks about the cases where the married man is under sexual relationship with a women other than his wife. `
Protecting the interest of women, Supreme Court talked about the sexual freedom that a woman has. “Adultery treats woman as a “chattel” and “dents” her individual dignity as it is the husband’s consent, which has the power to turn the case into an offence.While it appears to be pro-women by protecting them against prosecution, it actually is anti-women.” , wrote CJI Dipak Misra. He also said that men is not the master of the wife. The wife has the right over her own body, but Section 497 snatches that from her and give it to her husband. In addition to the same, Justice Chandrachud, overruling the judgement of his own father, said “This court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is the denial of this right.” Justice DY Chandrachud batted for sexual autonomy of women in abused relationships and suggested that there was nothing wrong if such “women seek solace and comfort” outside marriage.
The Supreme Court emphasized on Article 14 and while writing the judgement, CJI Misra said “Section 497 violated right to equality as it punished only the man while exonerating the partner in crime who could not even be punished for being the abettor.” Women can neither file a complaint nor be held liable for adultery, thus making it a principality of men. Justice Nariman, in support, said,“social norm of seeing only men as the seducer is not the case anymore. Adultery violates Article 14 and discriminate on the ground of sex and punishes only men.”
Justice Nariman struck the law on the ground that it is not in the continuity of the societal needs anymore. He wrote “This archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day utterly irrational. On the basis alone, the law deserves to be struck down.”
Adultery is more about the personal choices and it affects the family, not society at large. Thus to bring it under the domain of criminal law is questionable. In support of this, Justice Malhotra said “the state must follow a minimalist approach in the criminalisation of offences, keeping in view the respect for autonomy of the individual to make his/her personal choices. Adultery is a moral wrong and the issue is whether there is a sufficient element of wrongfulness to society in general to bring it within the ambit of criminal law.” Justice Indu Malhotra also marked adultery to be a moral wrong and not a criminal offence. The main element of the Indian Criminal Law focuses on justice and equality but surprisingly when it comes to law on adultery, it gives right to the husband to punish the man but doesn’t provide any such right to women if her husband does the same.
Anything done in society will bring acceptance as well as rejection by its people, it just depends from person to person’s perspective and how they take it. After the judgement strike the headlines, some criticised the verdict while other happily welcomed the new law.
The government’s affidavit while criticizing the judgement said, “Striking down Section 497 of IPC and Section 198 (2) of The Code of Criminal Procedure (CrPc) will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and the sanctity of marriage.” Swati Maliwal, Chairperson of Delhi commission for Women, called the judgement as “anti-women”. She took to her twitter handle and tweeted, “Instead of making 497 gender neutral, criminalising it both for women and men they have decriminalised it totally!” Renuka Chowdhary, a member of Rajya Sabha, also raised questions on the judgement. She thinks that the judgement will give license to men to commit polygamy and they will not give divorce to the women or will abandon them. She further added, “I am glad as it is not a crime anymore, but do not see how it helps and court will have to answer this.” Those who are in favor of adultery says “It was violence not against the will of a person but against the protector of that person, i.e. her husband. His ‘property’ had been damaged, so a charge of ‘violence’ was brought by her protector, and the offender typically punished with a fine assessed by the jury at the trial.”6 Some people are mocking decriminalization of adultery, saying law cannot do anything to them and they can sleep within marriage or without, some even said that it has made characterless people happy.
On the other hand, many people praised the decision of the Supreme Court. Prashant Bhushan, Senior Supreme Court lawyer, called the judgement to be fine. Sushmita Dev, Congress MP, tweeted, “Excellent decision to de-criminalise adultery. Also, a law that does not give women the right to sue her adulterer husband & can’t be herself sued if she commits adultery is unequal treatment & militates against her status as an individual separate entity.” Rekha Sharma, Chief of National Commission for Women, in support of the judgement said, “It was an outdated law which should have been removed long back. This is a law from the British Era. Although the British had done away with it long back, we were still stuck with it.”‘Times of India’ in support of the judgement said ”using laws to enforce faithfulness in marriage is as absurd as making it legally mandatory or compelling husband and wife to love each other.”7
It is clear that some have accepted scrapping of the law happily while some are unable to digest the news as we live in a society which has high morals and religious beliefs, as a result, when it comes to unjust practices which should be long gone there are people who will still support them as they have sipped the potion of earlier existing unfair rules, customs and traditions which are now being condemned by them.
Under every personal law, adultery remains the ground for divorce. Adultery is an offence against the marriage and must be dealt with civil laws and not criminal laws. Even the personal laws give equal rights to husband and wife to give divorce to their partners if they get into a sexual relationship with any person other than his or her spouse.
Personally, we think decriminalising adultery is a good attempt to bring in the equality. When we talk about the sanctity of marriage, it is the relationship between two partners and thus both are equally responsible for their marriage. Both are each other’s partner for life and not their property. Seeing wife as the property of the husband diminishes the value of the sacred relationship and also raises questions on the feminity of the woman. Also, assuming women as weak and lacking skills to give a rational judgement will never lead to equality. On the other hand, woman is equally liable when she gets into any sexual intercourse with a man other than her husband and the same applies for the husband as well. Seeing women as the property of the husba
nd, assuming men to be the seducer, giving the tag of victim to every woman will never bring in the equality. According to many people, the law should have been made gender neutral and not decriminalised wholly. But we think restricting adultery to divorce laws is a better option as marriage is of a private nature and it deals with the personal life of the people involved and also limiting it to personal laws nowhere creates any problem for both the partners. After knowing about adultery, if a partner wants to continue with the marriage, giving it a second chance, can continue with it or else can file for divorce. Now is the high time when people should start believing that living in an unhappy marriage is not an option. If the problem can be solved between them without taking it into a legal ambit, then it is good, but if it’s not working, then divorce could anytime be a better option as in the end it is always about living happily.
When equality is being talked about, it primes that no one is devoid of their rights and it makes sure that equal justice is being served to all but adultery remained as an exception to this rule. Adultery was a colonial era law that made it a punishable offence for a man who has a sexual intercourse with a married woman without the consent of her husband. The main glitch in the law was that it discriminated between both men and women. On one hand, it materializes women as the property of the husband and questions her autonomy of sexual freedom and individuality and on the other hand, it punished only the man, even if the woman was an equal partner in The law has always been a topic for debate but with different interpretations. Supreme Court has always upheld the law on adultery. But finally a constitutional bench of the Supreme Court has knocked down Section 497 crime, thus, makes the whole law irrational and unconstitutional. Thus making it solely a matter of civil laws. For some people it is an anti-woman decision while for some it is a positive step towards equality.
Summarising the whole paper, the authors are against the criminalization of adultery and supports the judgement of the supreme court. We believe that marriage is of a personal nature that deals with the personal life of individuals and their family and hence to maintain the sanctity of marriage, what is needed is the equal say of both the partners and their personal freedom. Punishing only one party and immuning the other party while taking the defence of marriage is not a viable option. Also, treating a women as a proprietary interest of the husband making the relationship the realm of man questions on the freedom of sexuality of women. This judgement grants an equal say to both the parties when either of them enter into any adulterous relationship as adultery still remains a ground for divorce in every personal law, thus, it depends on both the husband and wife as to see what they want to do with their marriage in future. Either they can continue with it and give their marriage a second or can file for divorce.