By- Aswani C Rajeev
‘Cessante ratione legis, Cessat ipsa lex’-the reason for a law ceasing, the law itself ceasing. It means no law can survive the reason on which it is founded. Society evolves and demands change for everything. In India, marriage was considered as an important social institution and sacramental union between two families rather than two individuals. When we look back to the history of India, it is evident that husband was having a dominant role where the wife was at the mercy of him. Historically adultery was condemned and punished and treated it as a violation to the marriage. Wife was considered as a property of husband and adultery was identified as an aggravated form of theft. The fact that wife was allowed no cause against the unfaithful husband was a discrimination found in ancient times. In the present day, adultery is no longer a crime in India but it can be a ground for divorce. India’s apex court struck down more than 150 year old colonial law which treated woman as a property of man.
The dictionary meaning of ‘adultery’ is that a married man commits adultery if he has sex with a woman with whom he has not entered in to wedlock. In Hinduism, adultery has never been accepted. The hymn 4.5.5 of the ‘Rig-Veda’ calls adultery as “papa (evil, sin)”. In Islam, the Qur’an firmly forbids adultery in this verse: “Those who commit adultery, men or women, give each of them a hundred lashes” that remains an exclusively dissuasive action. Act of zina (extramarital relationship) is considered as a most heinous crime. For Christians, adultery is a sin “you shall not commit adultery” (Exodus 20:14).
Adultery under Indian Pineal Code
Section 497 of the Indian Pineal Code (before amendment) defines adultery as:-
“Whoever has sexual intercourse with a person who is and whom he knows or has the reason to believe to be the wife of another man, without consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”
To constitute adultery, the essential ingredients are:
i. He should have had sexual intercourse with a woman, she should be the wife of another man.
ii. He should have knowledge or reason to believe that the woman is wife of another man.
iii. The sexual intercourse should be without the consent or connivance of the husband of that woman.
iv. The sexual intercourse should not amount to rape.
The offence of adultery is made punishable with imprisonment for a period of 5 years. There can also be fine. The wife is not liable to be punished for adultery or as an abettor. The offence of adultery is non-cognizable where a police officer cannot arrest the accused without an arrest warrant. It is also a bailable offence. The offence of adultery is compoundable by the husband of a woman with whom adultery is committed.
In Yusuf Abdul Aziz v. State of Bombay (1954), Section 497 was challenged on the ground that it is violative of Article 14 and 15 of the Constitution. The apex court held that section 497 did not violate the right to equality as enshrined in Article 14and 15 of the Constitution and is valid since Article 15 (3) permits state to make special provisions for women and children.
In Revathy v. Union of India(1988), the Supreme Court held that section 497 of the IPC is so designed that the husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and wife are disabled from striking each other with the weapon of criminal law.
Section 497 was enacted in 1860. At that point of time women had no rights independent of their husband, and were treated as a property. It was of this reason that adultery was considered as highest possible invasion of their property similar to theft.The object of section 497 of the Indian Pineal Code, 1860, was to preserve the sanctity of the marriage as the society abhors marital infidelity. According to Indian culture, marriage is considered sacred and mutual fidelity and devotion to partner are still the essence of marriage. But the Supreme Court of Indiajudgment dated 27th September 2018 struck down section 497 of the Indian Pineal Code as unconstitutional.
Case of Joseph shine v. Union of India (2018)
This recent landmark judgment has put forward a good initiative as it struck down section 497 IPC and 198(2) CrPc because both these sections based on discrimination. Provisions of this section does not give woman the right to prosecute an adulterous husband and it does not punish a woman not even as an abettor. In October 2017, Joseph Shine a non-resident Keralite, filed PIL under Article 32 of the Constitution checking the constitutionality of the offence of adultery.
The historical background in which section 497 was framed is no longer relevant in the present scenario. This section is arbitrary, outdated and also violative of fundamental rights. Under Article 21 of the constitution of India, privacy includes right of two adults to enter in to a sexual relationship after and outside marriage. Article 15 (3) also makes it clear that it cannot be termed as ‘beneficial legislation’ as it takes away the right to prosecute. More than that, this particular section makes women a subordinate to men and completely subservient to the will of the master. When a married woman voluntarily and knowingly enter in to a sexual relationship with another married man is called as a ‘victim’ and the male is ‘seducer’ which is unrealistic and arbitrary. Therefore we can say that section 497 fails to meet the conditions of restrictions pointed out in Article 21.
The respondents even argued that family is the fundamental unit in society. In preserving the institution of marriage state has legitimate public interest. Adultery can affect the growth and moral fibre of children and it can jeopardize the marriage. It violates the sanctity of marriage and also the right of a partner to marital fidelity, the essence of family. They also contended that this section protects the institution of marriage.
The Supreme Court struck down section 497 as unconstitutional being violative of article 14,15 and 21 of the Constitution. Section 198(2) also is unconstitutional to the extend that it is applicable to section 497. The choice of an individual with respect to his/her sexuality is most intimate and it should be protected. In order to constitute it as an offence, it must be a public wrong against the society as a whole and not merely an act committed against individual. The right to live with dignity includes the right not to be subjected to public censure and punishment by state where absolute necessary.
When we check the morality behind adultery, sexual infidelity is morally wrong. But the three elements of criminalizationstated in harm principle namely harm, wrong doing and public element are required to be proved. 156th report of Law Commission of India recommended to introduce an amendment to incorporate the concept of equality between sexes in marriages vis-à-vis the offence of adultery. In its 42nd report it recommended that the adulterous women should also be made liable for prosecution.
However, this judgment is criticized by stating the concern that no remedy is available to the spouse whenever the other take part in adultery. In a nutshell, adultery could be a civil wrong for issues like divorce but it cannot be a criminal offence.
International point of view
The Philippines is one among the Asian countries where adultery is a crime and treated as sexual infidelity in the Family Code. In China, adultery is not regarded as a crime but can be a ground for divorce. Countries governed by Islamic law like Saudi Arabia and Somalia strictly prohibit ‘zina’ or adultery. Adultery is a crime in Pakistan under the Hudood Ordinance promulgated in 1979. In 2015 South Korea decriminalized adultery. Presiding Judge Park Han-Chul said that, “Even if adultery should be condemned as immoral, state power should not intervene in individual’s private life”. In Taiwan, adultery is a criminal offence that is punishable up to one year with penalties applying to both sexes. Egypt, Morocco, Indonesia, Bangladesh etc. treat it as a crime. When it comes to Australia and any European country, it is not illegal. But 21 states of the United States treat adultery as a crime although prosecutions are rare.
Many views exist based on decriminalizing adultery. For a country like India, which is deep rooted in its cultural heritage, marriage is highly sacramental and association of two families. So, many people criticize this judgment on the basis that SC Judges has trashed the sanctity of marriages and it will increase immoral activity in society. But some social activists welcomed it as an acceptance for women over patriarchal control. The bench held that while adultery is not a criminal offence it should continue to treat as ground for dissolution of marriage. Two individuals may part if any one cheats, but to attach criminality to infidelity is going too far. There can’t be any social license which destroys home.Loss of moral commitment can create dent in the relationship but it is all up to them whether to forgive or to divorce.
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