On re-criminalizing adultery

Source: This post has been created on the article “On re-criminalizing adultery” published in The Hindu on 4th December 2023.

UPSC Syllabus Topic: GS paper 1- Society – social empowerment & GS paper 2- polity- fundamental rights

News: The article discusses the Parliamentary Committee’s suggestion to make adultery a criminal offense again in India, but in a gender-neutral way. This comes after the Supreme Court decriminalized adultery in 2018. The Committee wants to protect marriage, but critics say it’s outdated and the state shouldn’t interfere in private matters.

What is adultery?

Adultery refers to a consensual sexual relationship between a married person and someone who is not their spouse. It is typically viewed as a violation of marital fidelity and can result in legal, social, and religious repercussions. In various societies and cultures, adultery is deemed a crime or a sin. In others, it may not be explicitly banned, but it is still regarded as morally objectionable.

What is current legal status of adultery in India?

Adultery was a criminal offense under Section 497 of the Indian Penal Code (IPC) until September 2018. It was then decriminalized by the Supreme Court in a landmark judgment in the case of Joseph Shine v. Union of India.

Supreme Court Ruling (2018): The Supreme Court, led by Chief Justice Dipak Misra, removed adultery as a criminal offense in 2018. The ruling stated that adultery is a matter of personal privacy and should not be a criminal matter. The Court emphasized that criminalizing adultery infringes on personal freedoms and treats women as property. It should remain a civil issue (ground for divorce), not a criminal one.

For more information read here

What are the arguments in favour of the criminalization of adultery?

Protecting the Sanctity of Marriage: Criminalising adultery in a gender-neutral manner is crucial for safeguarding the sanctity of marriage, which is considered sacred in Indian society and needs protection. This view is supported by the recent Parliamentary Committee, the Law Commission in its 42nd and 156th reports, and the Malimath Committee in 2003.

Guardian of moral principles: Criminal law everywhere in the world serves as a guardian of the moral principles of society, protecting a society’s historical roots while leading it towards a progressive social order. If we start subjecting laws to our personal rationale, it will lead to chaos, as a counter-narrative would always exist.

What are the arguments against the criminalization of adultery?

Invasion of Privacy: The 2018 Supreme Court ruling emphasized that criminalizing adultery intrudes on personal privacy, treating it as a matter between individuals, not the state.

Treating Women as Property: The Supreme Court noted that the adultery law (before 2018 SC ruling) treated women as their husbands’ property, challenging the notion of gender equality.

Marriage as a Personal Compact: One of the Congress MP argued that adultery should be a matter for civil law, not criminal law, as marriage is a personal agreement.

Changing Social Norms: Justice Indu Malhotra of the Supreme Court highlighted the need to recognize individual autonomy in the private sphere, reflecting evolving social attitudes towards marriage and personal choices.

For more information read here

Way forward

Parliament has the authority to counteract judicial decisions, as seen in the Madras Bar Association versus Union of India (2021) case, provided it modifies the legal foundation of the judgment. Therefore, Parliament could enact a gender-neutral adultery law, addressing the Supreme Court’s issues regarding privacy and gender discrimination. This law should balance personal freedom with the societal importance of marriage. Consultation among legal professionals, the public, and legislators is key to creating a law that aligns with modern values and upholds individual liberties.

Question for practice:

Evaluate the implications of reintroducing adultery as a criminal offense, in India in light of the 2018 Supreme Court decision.