Adultery can be defined as the “Unfaithfulness” of one party to the marriage via a sexual relationship with a third party. Before 2018, the Indian Penal Code (IPC) section 497 considered “Adultery” as a criminal offence that could be “Punished with imprisonment” for up to five years, a fine or both.
INDIAN LAW AND ADULTERY
The adultery law in India was recently quashed on 27th September 2018 in the case of Joseph Shine V Union of India, by quashing section 497 of the IPC which was a 158-year-old ‘Colonial law’. This has turned out to be one of the most significant judgments in the light of “Gender equality” and personal freedom in India. The main issue was that only the man could be prosecuted under section 497, while women could not be charged, similarly, women could not file cases against their husbands (because this right was only vested upon the “Male” that is husband). This was different from the general definition of adultery which encompasses both males and females who engage in voluntary intercourse outside marriage.
SECTION 497 OF IPC AND SECTION 198(2) CrPC
The Section 497 of the Indian Penal Code (IPC):-
“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.”
Meaning:- Under Section 497 of IPC states that the man having a physical relationship with the wife of another man without the consent of the husband commits adultery. It did not punish the woman, and only considered the “Married woman” as a victim and not as half a participant in the abuse as the “Married Man”. Also, it denied a woman the capability to file a case against their husbands on grounds of adultery, making the legal landscape unequal based on gender.
The Section 198(2) of the Criminal Procedure Code (Crpc):-
“(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Meaning:- Under Section 198(2) of CrPC, only the husband of the woman with whom adultery had been committed could file a complaint against the adulterer. It is only the aggrieved husband who could initiate the proceedings, which further aggravated the bias of the law in favour of men.
INGREDIENTS OF ADULTERY
There are four main elements to constitute an Adultery:-
1. Consensual physical relationship between a woman and another man who is neither her husband nor a close relative or a close friend.
2. The man involved in the act must have ‘Knowledge’ that the woman (with whom he is having sexual relations) is a wife, or should have known it was the case.
3. The sexual relation must be ‘Consensual’ meaning that the woman should ‘Not be forced’ or ‘Coerced’ into having sexual relations with the man.
4. The physical relationship must occur secretly and without the consent or involvement of the woman’s husband.
LANDMARK CASE OF JOSEPH SHINE V. UNION OF INDIA, (2019) 3 SCC 39, AIR 2018 SC 4898)
The Hon’ble Supreme Court of India – Chief Justice of India Justice Dipak Misra and Appellate Judges – R.F. Nariman, D.Y. Chandrachud, AM Khanwilkar and Indu Malhotra on September 27, 2018 – thereby quashed Sections 497 of IPC and 198(2) of CrPC. The bench held that Section 497 of the IPC where only men are punished and women are not and that it is unconstitutional as per the Constitution of India which provides equal rights to the citizens (that are enshrined in Article 14 of the Constitution and guaranteed Fundamental Right). The court held that Section 497 was manifestly arbitrary and violative of constitutional provisions. Article 21 of the Constitution of India, which is a safeguard against violation of life and liberty, conflicted with Section 497 IPC. This particular section considers a woman as the personal property of the husband and stipulates action on the ground that certain acts have diminished her dignity, hence unconstitutional. Besides, based on Article 15(1), the Constitution does not permit discrimination regarding any person solely based on the “Ground of Sex”. Section 497 was discriminatory because it treated adultery as an offence against the husband and not against the wife and thus, violated Article 15(1) of the Constitution.
While striking down Section 497 of IPC, Chief Justice Dipak Misra had remarked, “A husband is not the master of his wife, he further observed that any system treating women with indignity invited the wrath of the Constitution”, which is why adultery is no longer a crime. Justice R.F. Nariman said, “Ancient notions of man being perpetrator and woman being victim no longer hold good”. Adultery law was violative of Art. 14 of the Constitution of India because it punished only men and not women. It was also in infringement of Art. 15 which prohibited discrimination on the grounds of sex. The bench also observed that these provisions were old and served no purpose. The Supreme Court of India accordingly struck down Section 497 of IPC and 198 (2) of CrPC as unconstitutional on September 27, 2018.
CONCLUSION
The decriminalization of adultery in India is a step towards an equal and just society. It proves how laws have to modify with the changing values and traditions of society. Adultery remains a wrong to conscience and morality, but through the judgment of the Supreme Court, it is not treated as a crime, as that would directly contradict principles of gender equality and personal autonomy. This judgment has thus become a landmark in reminding people of the modification of legal frameworks in conformity with contemporary values so that society can become more inclusive and progressive, something which the country is grappling with at this juncture in time.