Source: The Hindu

Introduction

Recently, the Parliamentary Standing Committee on Home Affairs that has examined the three new Criminal Law Bills set to replace the Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872 (IEA), has recommended the criminalization of adultery on gender neutral lines.

What are the Recommendations of the Committee?

• The Committee suggested that adultery be reinstated as a criminal offence but be made gender-neutral, thereby making both men and women equally culpable under the law.
• The Committee is of the view that the institution of marriage is considered sacred in our society and there is a need to safeguard its sanctity.
  • Also, the revoked Section 497 of the IPC only penalized the married man.

What was Section 497 of IPC?

• Section 497 IPC criminalized adultery.
• It imposed culpability on a man who engages in sexual intercourse with another man’s wife.
  • Adultery was punishable with a maximum imprisonment of five years. Women though were exempted from prosecution.
• This section was inapplicable when a married man engaged in sexual intercourse with an unmarried woman.
  • The object of this section was to protect the sanctity of marriage.
• This Section can be read as follows:
  • 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 a case the wife shall not be punishable as an abettor.

Why was this Section Repealed?

• A five-judge Constitution Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra and comprising of current (CJI) D.Y Chandrachud and Justices A.M Khanwilkar, R.F Nariman and Indu Malhotra in the case of Joseph Shine v. Union of India (2018) held that adultery is not a crime and struck it off the IPC.
  • It however clarified that adultery would continue to remain a civil wrong and a valid ground for divorce.
• The Court Struck down this section as it was discriminatory towards women and was perpetuating gender stereotypes and diminishing the dignity of women.
  • The Court had noted that the provision was treating a wife like a property of the husband and only penalized the man, disregarding the autonomy of a woman.

What are Problems in Making Adultery Gender Neutral?

• The problem with adultery being in IPC was two-fold. The first is criminalizing it on the basis of the institution of marriage and second is treating women as property, making it gender neutral would do away with both.
  • Adultery is an offence against marriage which is a union between two persons, if the union is broken, the aggrieved spouse may sue for divorce or civil damages.
• To raise marriage to the level of a sacrament is outdated.
• In any event, a marriage concerns only two persons and not society at large.
• The State has no business to enter into their lives and punish the alleged wrongdoer.

Can Such a Ruling in this Case be Undone?

• A ruling of the Supreme Court is the law of the land and binds the lower courts to follow its dictate.
• Parliament cannot simply pass a law that contradicts a ruling of the top court.
  • However, it can overrule judicial rulings, but such legislative action will be considered valid only if the legal basis of the judgment is altered.
• Such a law can be both retrospective and prospective.

Conclusion

Adultery often involves subjective and nuanced circumstances within relationships. Exploring the complexities of adultery demands a nuanced approach. Balancing legal reform, legislative actions, societal awareness is pivotal for crafting a fair and harmonious path forward.