SC’s petition to drop adultery as a criminal offence

Context:

• There has been a long dispute over the constitutional validity of Section 497 of the Indian Penal Code, under which men can be prosecuted for adultery.
• The Supreme Court has recently admitted a petition to drop adultery as a criminal offence from the statute book.

What is adultery?

• Adultery is a voluntary consensual relationship between a married individual and someone who is not his/her lawful spouse.

Is adultery an offence?

• Yes, adultery is regarded as illegal in some countries and certain laws have been passed to keep a check over adultery.
• The act of adultery is a crime which breaches the marriage vows and is detrimental to public morals.

Legal parameters against adultery:

• The legal definition of adultery varies from country to country.
• Laws related to adultery vary from statute to statute.
• At some places adultery is considered a crime and the adulterer may even have to face death penalty.
• In few statutes, if either individual is married to someone else, both parties to an adulterous liaison are culpable to the crime.
• Christian, Jewish, Islamic and Hindu traditions condemn the act of adultery.
• In Islam, the adulterers especially the female may be stoned to death.

Indian jurisdiction against the adultery law:

• According to Indian jurisdiction, the adultery law comes under Section 497 of the Indian penal code.
• There are two laws pertaining to adultery:

Section-497: Adultery:

• “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 punishable as an abettor.”

Section-498: Enticing or taking away or detaining with criminal intent a married woman:

• “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

What is the debate over the Indian adultery law?

• There has been a long debate over the constitutional validity of Section 497 of the Indian Penal Code, under which men can be prosecuted for adultery.
• The Supreme Court has observed that the provision is outdated.
• It has further noted that in a case of adultery, one person is liable for the offence but the other is absolved.
• Thus, the concept of gender neutrality, on which criminal law normally proceeds, is absent.
• It has also noted that once the consent or connivance of the husband is established, there is no offence of adultery at all.

Indian adultery law challenges Section 198(2) of the Code of Criminal Procedure:

• In the past, the Supreme Court has emphasized that a married woman is a “victim” and the man is “the author of the crime”.
• It has treated the exemption given to women as a special provision that has the protection of Article 15(3).
• It has rejected the argument that it is discriminatory by pointing out that neither a man nor a woman can prosecute their disloyal spouses.
• It is only the ‘outsider’ to the matrimonial relationship who can be prosecuted, and that too by the aggrieved husband alone.
• This is made clear in Section 198(2) of the Code of Criminal Procedure, a provision also under challenge.

Conclusion:

• The real problem in the Indian adultery law is the very fact that adultery remains a crime in the form of an archaic colonial era provision. 
• The debate should not be maintained over the limited boundaries of gender discrimination.
• The correct course will be to dispense with this archaic provision altogether.
• It serves no real purpose in the criminal statute.