Adultery and the Law: Understanding Legal Perspectives

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20-Jun-2024 | Shrishti Gupta

Ever since adultery has been decriminalised in India, it has sparked intense debates, particularly in relation to the country's cultural heritage and traditions. Historically, Indian society has viewed adultery as a breach of trust and a threat to marriage. But with the changing dynamics in relationships along with increased individualism, it has shifted the cultural landscape prompting revaluation of these moral norms.

In 2018, the Supreme Court of India decriminalised adultery, declaring Section 497 of the Indian Penal Code as unconstitutional. This decision led to huge discussions about the intersection of morality, law, and personal freedoms. Adding more to perspectives, critics argued that the decriminalisation will contribute to the erosion of traditional family values.

Since then the debate on adultery serves as a mirror reflecting the ongoing struggle between tradition and modernity in India. Which also prompts individuals to confront their beliefs and attitudes towards personal relationships.

How Do We Define Adultery?

The term "adultery," refers to a married person's deliberate sexual relations with someone other than their legal spouse. In a marriage, it is deemed non-monogamy if one of the partners engages in extramarital affairs. The Indian legal system views having intercourse with someone other than one's spouse as adultery.

Cultural Perspective of Adultery

From ancient times adultery has carried heavy penalties. From different cultures, religions, to moral standards all have dictated how adulterers should be treated. Adultery was once thought to be a breach of the husband's rights, since the woman was seen as his property.

The punishment for adultery in Jewish law was stoning for both sexes, although this punishment was only applied when two separate witnesses had forewarned the culprit before the offence. Jewish law today prohibits a man from staying in a marital relationship with a cheating spouse; instead, he must deliver the woman a bill of divorce, prepared by a sofer or scribe.

Adultery is also prohibited in the Old Testament and is punishable by death in Christianity. Jesus preached that adultery was a sin, but in the New Testament, he softened his stance on the matter. It is also unlawful to commit adultery in Islam. Premarital and extramarital sex are considered serious sins in Islam, as is adultery, which is considered a breach of a marriage contract. Adultery has been punished harshly throughout history, up to and including the death penalty and stoning.

Legal History and IPC Section 497

Lord Macaulay, a key figure in the early drafting process of Indian Penal Code, believed that a better remedy lay in pecuniary compensation. However, when the Court Commissioners reviewed the Penal Code, they believed it was important to make adultery an offence.

In 1971, the Law Commission of India considered criminalising adulterous conduct, but a strong dissent was expressed by Anna Chandy, who voted to revoke the provision. The Commission recommended an amendment, removing the exemption from liability for women. This further highlighted the need for procedural reforms to remove the bar against women from initiating prosecutions.

Later in 2003, the Committee on Reforms of the Criminal Justice System proposed that adultery be retained as an offence on gender-neutral terms. It stated that the objective of the Section is to preserve the sanctity of marriage.

Section 497 and Ongoing Debates

Section 497 of the Indian Penal Code defines adultery as a crime committed by a third person against a husband in respect of his wife. The offence must not amount to rape and a complaint by the aggrieved person is necessary. The cognizance of this offence is limited to adultery committed with a married woman, and the male offender alone is liable to punishment.

The judicial approach to the criminal offence of adultery has been criticized by the committee on the state of women in India (CSWI). It has been challenged as violating the constitutional mandate of equality. The Supreme Court upheld the constitutional validity of Section 497 IPC, stating that the wife is not punishable even as an abettor. The court also noted that an under inclusive definition of adultery is not necessarily discriminatory, and that the law must remain as it is until reform of penal law is taken.

The Discrimination That Heated The Debate

The Supreme Court has ruled that the Penal Code in India is not discriminatory, as neither husband nor wife can sue each other for adultery. The offence is only directed at the 'outsider' who violated the sanctity of the matrimonial home only if the outsider was a man. This reverse discrimination is regarded as a case in favor of women rather than against them. Critics argue that this double standard is not justified, as the same act can be committed by a female.

However, the Indian Penal Code permits the husband to prosecute the paramour of his wife without giving any corresponding rights to the wife. This has been challenged as a violation of article 14, as it gives different treatment to men and women.

Law is not only discriminatory towards married females but also towards males. The National Commission for Women (NCW) has recently shot down proposals for amending Section 497 to allow women to be prosecuted for adultery, recommending adultery as a civil wrong and a breach of trust. However, the NCW believes that this should only be done after a national consensus is formed on the issue and that laws to protect women need to be strengthened.

Adultery- Not a Crime

In the landmark judgement Joseph Shine v. Union of India (2018), the Supreme Court of India, led by then Chief Justice of India Dipak Misra, struck adultery off the Indian Penal Code (IPC). However, it clarified that adultery would still be a civil wrong and a valid ground for divorce. The case began in 2017 when Joseph Shine, a non-resident Indian, filed a PIL challenging the constitutional validity of the offence of adultery under Section 497 of the IPC and Section 198(2) of the CrPC.

The court ruled that diluting adultery would weaken the institution of marriage and that the stability of a marriage is not an ideal to be scorned. In 2020, a five-judge Bench led by former CJI Sharad A. Bobde dismissed petitions seeking a review of the verdict for lacking merit.

A married woman is her husband's "chattel," according to rulings by former Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar, who stated that adultery is not a crime provided the spouse approves of the extramarital affair. Misra maintained that making adultery a criminal act would invade the domain of marriage and that adultery is an issue of privacy. Section 497, according to Justice R.F. Nariman, made a husband the "licensor" of his wife's sexual preferences, which is against constitutional morals.

Judge D.Y. Chandrachud contended that women are pushed to a situation where the law ignores their sexuality as a result of adultery being criminalised. The freedom of an individual to choose their sexual orientation should be shielded from criminal penalties, according to Justice Indu Malhotra. Defendant Saurabh Kirpal agreeably contended that if one adheres to a traditional view of marriage, adultery should continue to be grounds for divorce. He also noted that making it illegal would be equivalent to "State entering the bedrooms of two individuals".

The New Bills and Reforms

The reintroduction of a criminal offence related to same-sex marriage in India is seen as a response to the Supreme Court's ruling in Madras Bar Association v. Union of India (2021), which struck it down in 2018. The Supreme Court has stated that legislative action is valid only if the legal basis of the judgement is altered.

The court has also reiterated that the legislature can remove defects in earlier legislation, both prospectively and retrospectively, as pointed out by a constitutional court. However, the court cautions that if a legislature merely seeks to validate acts carried out under a previous legislation that has been struck down or rendered inoperative by a court, subsequent legislation without curing the defects in such legislation would also be ultra-vires.

The new Bills introduced in the Lok Sabha on August 11 to reform colonial-era criminal laws were referred to a 31-member Parliamentary Standing Committee, headed by BJP MP Brij Lal, for scrutiny. The Committee suggested that adultery be reinstated as a criminal offence but made gender-neutral, making both men and women equally culpable under the law.

Conclusion

Adultery in India is still deemed as an act of breach and fallacy however the state or the judiciary refrains from criminalising the matter. Thus making it a topic of personal consent and private matters. However, the finger points towards the moral foundation of Indian familial ties that can convulse without restrictive consequences. While on the other hand criminalisation of adultery can also admonish the right to equality on certain levels. Understanding the legal perspectives on the case also explicates the divergent views of Indian systems and Indian civilians.

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