Adultery No Crime

The Supreme Court of India, scrapped a 158-year-old law on adultery terming it as unjust, illegal, arbitrary and a violation of citizens fundamental right, in a petition seeking the repeal of Section 497 of IPC,  filed by a non resident Keralite –Joseph Shine.

What is Adultery?

Adultery is the act of Sexual intercourse between a married person and someone who is not that person’s spouse.

The Supreme court had heard arguments on the legality of this Section of the IPC on three previous occasions and had upheld the constitutional validity of the adultery law each time. First in 1954 in the petition of Yusuf Asis vs State of Bombay; then in 1985 in the case of Sowmitri Vishnu vs Union of India and the previous time in  1988 between V Revathi vs Union of India.

However, in a historic verdict, a five-member bench of the  Supreme Court deemed the adultery law enshrined in section 497 as unconstitutional in September 2018. The Apex court also declared Section 198(1) and Section 198(2) of the CrPC as unconstitutional.

In its verdict the Supreme Court of India, stated that the husband is not the master of the wife and any provision treating women with inequality is unconstitutional. Thus confining the offense of adultery as a civil wrong that can be used by the women as well as the man for divorce. If any aggrieved spouse commits suicide, based on evidence could be treated as an abetment to suicide attracting section 306 of IPC.

Adultery is civil wrong but not a criminal offense and divorce is a remedy for civil wrong.

So what is Section 497 of the IPC?

“Who ever has sexual intercourse with a person who is or whom he knows or has reason to believe to be the wife of another man within the consent or connivance of that man ,such a sexual intercourse not amounting to the offense of rape is guilty of the offense of adultery “ .

This makes adultery a punishable offense against another man for having a sexual relationship with his wife. The punishment being a Five year jail term or fine or both.

What is Section 198(1) and 198(2) of the CrPC?

These sections allow the husband to bring charges against the man with whom his wife committed adultery.

What were the problems with the Adultery law?

  • The law criminalized sexual intercourse with married women, but not with an
    unmarried women.
  • If the consent of the husband of the married women was obtained, the act ceased to be an offense.
  • It  was gender biased as men alone were punishable for the offence.
  • It criminalized sexual contact between two consenting adults.
  • It did not give any rights to women to file a case if the husband was involved with other women.

Adultery laws across the world

  • In 20 states of USA, adultery remains an offense.
  • Most of the other countries in the world do not consider adultery as a crime. In Britain, from where most of the commonwealth countries got this law, adultery is not a criminal offense.
  • However in countries like Philippines, Pakistan, Afghanistan  adultery continues to be a criminal offense.

What were the arguments for and against adultery as a crime?

Arguments in favor of scrapping criminal nature of adultery –

  • Its in opposition to Article 14 (Right to equality).
  • Goes against Article 15 (prohibition of discrimination on the basis of caste, religion and gender.
  • Violates Article 21 which confers right to life and personal liberty.
  • It treated woman as victim and property of their husband.
  • Section 497 forbade the women from being punished. Only the man in an
    adulterous relationship will be punished.
  • The state cannot interfere in the personal matter of individual.
  • 5th law commission in its 42nd report suggested to make adultery law gender
  • In 2003, Justice Malimath committee had suggested making section 497
    “gender neutral” and to let the women also file a criminal case against the other women.
  • Scrapping adultery law will empower the women as now divorce can be obtained for both couple in the name of adultery.
  • UN has issued numerous calls to government to repeal laws that criminalize adultery, arguing that they are predominantly used to discriminate against women.

Arguments in favor of keeping criminal nature of adultery –

  • Section 497 is needed as it preserves the sanctity of marriage.
  • Striking it will be against the Indian culture and tradition.
  • Divorce as a remedy for the civil wrong will affect the future of the children.
  • Remedy of divorce in case of civil wrong will not help women who are financially depending on their husband.

To conclude, this verdict is is just the beginning as India still has a lot to do to ensure gender equality. The government should bring laws to enforce gender equality in this regard. As it’s a move towards progressive society where women are treated equal to man, society also should rise from its patriarchal mind set. There should be measures to strengthen the institution of marriage and family system.

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