Adultery Law in India

Context

The Supreme Court has reserved his judgement on adultery in response to a PIL (Joseph Shine vs. Union of India)

Background

Laws/Acts

• Section 497 of IPC says that if a man has sexual intercourse with another’s wife without the husband’s “consent or connivance”, he is “guilty of the offence of adultery and shall be punished
• Section 198 (1) and (2) of the Code of Criminal Procedure deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court

Adultery in other countries

• At present, only 20 countries criminalise adultery. Most of their criminal justice system is based on Islamic Laws. For example, in Pakistan, adultery is punishable with death.
• The only industrialised country to criminalise adultery is USA.
• All European countries and many Latin American countries have decriminalised adultery.

International Reports

In 2012, a ‘United Nations Working Group on Laws That Discriminate Against Women’ recommended that all States repeal such laws that treat adultery as a crime

SC Judgements:

Yusuf Abdul Aziz vs. The State of Bombay (1954):

• The Supreme Court upheld the constitutional validity of Section 497 of the Indian Penal Code (IPC)
• It held that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution.

Sowmithri Vishnu v. Union of India (1985)

• Upheld the constitutional validity of the law.
• Even though the social scenario may have changed, it is not for the court but for the legislature to decide the policy of law.
• It is not in violation of Article 14 and 16 of the Constitution as it is commonly accepted that “it is the man who is the seducer and not the woman”.
• Protection from prosecution given to women under Section 497 is in tune with Article 15 (3) of the Constitution. Article 15 (3) allows the legislature to make “special provisions” which are “beneficial” for women and children.

Revathi versus Union of India, 1988

• Section 497 does not discriminate on the basis of gender.
• Law only punishes the “outsider” who breaks into the matrimonial home and violates the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses.
• The court observes that as husband cannot prosecute the wife for violating the sanctity of marriage in the same way women cannot file a case against offending husband under adultery law
• However, the erring man alone can be punished and not the erring woman.

Brij Lal Bishnoi v/s State (1996)

• Only sexual intercourse with a married woman would amount to adultery. Sexual relations with a widow, sex worker or an unmarried woman would not attract punishment under Section 497 of the IPC.

Issues with Section 497 of the IPC:

Treats woman as a property of man

• The law is founded upon the idea that the status of the wife in a marriage is akin to that of the property of the husband.
• The power is vested in a husband to control the sexuality of his lawfully wedded wife.
• It reinforces the submissiveness of women within the marriage.

Criminalises only the man and not the woman involved:

• The law is sexist in nature; it only criminalises the conduct of the man while excusing the woman.

Does not allow the wife to prosecute her adulterous husband:

• Section 497 gives husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife
• However, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery.

It is adultery only when it involves a married woman:

• Section 497 does not take in cases where the husband has sexual relations with an unmarried woman

Marriage is social contract and breach should be only civil

• Adultery law was brought in 1860. The social scenario has changed a lot since then. Adultery should not be treated as criminal offence now.
• Although adultery is basis of divorce under section 13 (1)(i) of The Hindu marriage 1955

If the consent of the husband was received it is not adulterous:

• It observed that the fulcrum of offence within the Section is destroyed if the husband were to consent to the wife having a relationship with another man.

Committees/Recommendation

The 42nd Report of the Law Commission(1971)

• Recommended retention of adultery provisions as the time was not yet ripe to repeal it.
• Make the law gender neutral
• Reduce the punishment of imprisonment from 5 years to 2 years.

156th Law Commission Report (1997)

• Recommended reforming Section 497.
• Retaining the prison term of 5 years.

Justice Malimath Committee (2002)

• Should make the law gender neutral. Should penalise anyone who commits adultery.

National Commission for Women (2006)

• Recommended decriminalisation of adultery.

Observations of the Supreme Court (2018)

Afive-judge constitutional bench of the Supreme Court observed that

• Section 497 is archaic.The concept of gender neutrality, on which criminal law is normally based, is absent in Section 497 of IPC.
• The law violates article 14 of the constitution as it creates an irrational classification between men and women
• Once the consent or connivance of the husband is established, there is no offence of adultery at all.Thus, the law allows the husband to control the sexuality of his wife.
• It rejected the argument that special protection has been given to women due to Article 15(3)
• If the women break sanctity of marriage, the law provides male right to blame a third person responsible for the failure of a marriage rather than looks at the inadequacies in their own relationship

Way Forward:

• It is time to revisit all archaic laws in India. The basic theme which runs through all the laws must be: human dignity, personal liberty, gender equality etc.
• To change the social outlook in a patriarchal society, it is necessary that laws are designed to protect and empower women.When the laws by themselves sanction the submissiveness of women, people will continue to hold social prejudices against women.
• Most of the countries around the world have decriminalised adultery. It is time for India to follow suit and make it a civil offense.
• The centre should make amendment in the law and replace the word husband with spouse to make it gender neutral
• It is the responsibility of both husband and wife to save the sanctity of marriage. Change in Adultery law must be taken in right spirit