Adultery –Curse for Indian Society

Author: Sahaj Karan Singh

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

Abstract

Adultery is taken as a sexual morality violation since centuries. Adultery breaks ethos and morality of the Indian culture. As per the verdict of Supreme Court given on dated 27 Sept. 2018 for section 497 of IPC i.e. now adultery is not a criminal offence, it’s just ground for divorce under section 13(1) (i) of Hindu Marriage Act, 1955. The current scenario for adultery in India has to be associated which influence the ethical values for new generation. As the concept of adultery is now a ground of divorce i.e. grounded in the institution of marriage, it needs to be discussed strictly on the parameters of morality and moral stands of the Indian society. Marriage loses their essential value, and this in itself is enough of a reason to hold on to the value and ethics of monogamous relationships and label adultery as immoral.

It seems that society needs to remember that there is indeed something wrong with adultery. No society would accept that and adultery is certainly a moral crime and is thought-out a sin by almost all religions.

My research article emphasizes that an amendment is required in the context of punishment and filing petition, there should not be any gender inequality.

Introduction

A crime is a crime. If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments are made to section 497 IPC, so as to do away with the irregularities and in the interest of doctrine. Section 497 of Adultery states that 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[1]. As per the verdict of Supreme Court given on dated 27 Sept. 2018 for section 497 of IPC i.e. now adultery is not a criminal offence, it’s just a ground for divorce under section 13(1) (i) of Hindu marriage act, 1955, which given open license to married couple for adulterous relationship.

Adulterous indulgences are a hard fact of social life the world over. In Indian social parlance, adultery manifests as a deeply ingrained and nearly inseparable figment of moral turpitude running parallel to the sanctified form of sexual union permissible within matrimony. Indian scenario, like adultery, in other words, is a “violation of marriage bed”. In the great epic “Ramayana” it was also concluded there that after the abduction of Sita by Ravana, Sita had to go

for “Agnipariksha” to prove her chastity, her purity. The dictionary defines ‘adultery’ as “voluntary sexual activity between a married man and someone other than her husband” and the term comes from the words “ad”(towards) and “alter”(other)[2]. Adultery is extramarital sex that is considered objectionable on social, religious, moral or legal grounds[3]. However, the feminists in India today said that the Indian law relating to adultery is premised on the outdated notion of “marriage”. The law, according to them, is not only based on the husband’s right to the fidelity of his “wife” but also treats “wife” merely as a chattel of her husband. Adultery is often seen as a breach of trust and of the commitment that had been made during the act of marriage[4]. Adultery may lead to ostracization from certain religious or social groups[5].

Research methodology

The methodology employed in this study is ‘Doctrinaire’ and includes the review of literature available from law journals, case law references, periodicals, library researches, books and the internet.

Research questions

  • Are not the women involved in adultery equal culprit? Is this a discrimination or not?
  • Does this concept of equality not apply in cases of adultery also?
  • What are the effects of adultery as per analysis with the reference of case laws?
  • Is this decriminalising of adultery encourages man and woman an open license to committee adultery?
  • In our country, it is assumed when the topic is ‘sex’ women are the victims. I ask why? Why we tend to think that they don’t do it for their own guilty pleasure but do it under pressure, under some obligation and is always somehow being victimized in this scenario?

Review of adultery law in other countries.

Though, Islamic countries like Afghanistan, Nigeria, Pakistan, Yemen, Sudan, Saudi Arab, and Iran have provisions for death penalty as the maximum punishment for adultery[6].  Countries governed by Islamic law, including Saudi Arabia, Pakistan and Somalia, all strictly prohibits zina, or “fornication outside marriage”. Prosecutions are common and punishment can include fines, arbitrary detention, imprisonment, flogging and in extreme cases, the death penalty[7].

In Pakistan, it has been criminalised by a law called zina ie extramarital or hudood ordinance which zina laid to 100 lashes for a fornicated up to 10 years[8].

According to Islam, adultery is a violation of marital contract. As per Sharia law to seek sex outside the limits set by God is a sin. Both would be charged under adultery[9].  Adultery is illegal in 20 states in the US, in 20 stated like Michigan, Idaho here prosecutions are rare and usually involved fine for adultery.

In regions of Iraq and Syria under ISIL, there have been reports of floggings as well as execution against people who engage in adultery. The method of execution was typically through stoning. ISIL would not merely oppose adultery but also oppose behaviour that from their point of view could lead to adultery, such as women not being covered, people of the opposite sex socializing with one another, or even female mannequins in store windows.

In Michigan adultery is punished by fine of 10 dollars as they will be taken under Michigan Penal code, 1931. In 2007 ruling made adultery first-degree criminal sexual conduct with the possibility of life in prison[10].

In New York and Utah, felony in Wisconsin. In South Carolina, the fine for adultery is up to

$500 and/or imprisonment for no more than one year (South Carolina code 16-15-60), and South Carolina divorce laws deny alimony to the adulterous spouse

Adultery is a crime in Taiwan under Taiwan’s criminal code – Article 239[11] and in the Philippines punishable under Article 333 of the Revised Penal Code. Adultery is punishable by imprisonment of Prison Correctional in its medium and maximum period (range of 2 years, 4 months and 1 day to 6 years imprisonment). Both your wife and her paramour shall be subjected to such punishment if found guilty[12].

In Scandinavia, in the 17th century, adultery and bigamy were subject to the death penalty, although few people were actually executed[13]. In the U.S. military, adultery is a potential court-martial offence [14]. [14] In the United ‘States’:’ Pennsylvania,’ it is punishable by 2 years of imprisonment or 18 of months ‘treatments for insanity[15].

Historical touch and scriptural teachings

The great law of Manu, adultery is a matter of consideration. Historically it was rigorously condemned and punished, usually as a violation of the husband’s rights.

In Judaism, married women engage in sexual intercourse with another man was concluded as adultery and both the man and woman were considered as guilty[16]. With the exception of the Kharijites, Islamic theological schools agreed that Muslims who committed grave sins, such as adultery, should not be banished from the fold of Islam[17].

The Hindu Sanskrit texts present a range of views on adultery, offering widely differing positions [18] [19] . The hymn 4.5.5 of the Rigveda calls adultery as pāpa (evil, sin)[20] [21]. Other Vedic texts, states Rick Talbott, state adultery to be a sin, just like murder, incest, anger, evil thoughts and trickery. In Rigveda mandala it was mentioned that adultery is a sin as stated “(You) pursuing (it) like brotherless maidens pursuing (men), (you) of evil ways like wives cheating (their) husbands, though being wicked, untruthful, untrue, you begot this deep track”[22]

Jesus Crist also stated that “Whoever looks at women to lust after her has committed adultery already within his heart”.

Thirukkural says a blemishless mind is the basis of all virtue; everything else is just an empty show (Kural 34 – Manathukkan maacilan aadhal anaitharan aakula neera pira). The word ‘Maacil’ in Kural 34 refers to the impurity of the mind, which has to be eschewed if one is to progress in virtue. Jesus Christ also highlighted this concept of purity of heart, when he said that a man who entertained in his mind lustful thoughts with reference to another woman is already guilty of adultery (Matt. 5:28).  Every one of us needs to cultivate the principles of ethical living in whatever we do. Ethical living needs no time or place (Kural 33 – Ollum vakaiyan aravinai ovate cellum vayellan ceyal). There are five precepts that representative of Buddhist ethics. They include one should refrain from taking life (all animails life) one should refrain expression of sexuality, fornication, adultery.

People also wonder if romantic relationships outside of marriage are permissible as long as there is no actual sexual intercourse. However, in Bible teachings, marriage is an exclusive romantic and sexual relationship between husband and wife. Jesus said: “You have heard that it was said, ‘Do not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (NIV, Matthew 5:27-28).

In Guru Granth Sahib ji also it was mentioned by Bhagat Beni Ji as stated ‘When lust springs up and mind is darkened, one embraces someone’s wife. In the glow of youth, one stares at somebody’s wives and does not recognize difference between good and evil. Drunk with sexual desires and other great sins, one goes astray and does not distinguish between vice and virtue.’ And also by Guru Arjun Dev Ji stated that ‘An adulterer may have all sorts of beautiful women, but still, he commits adultery in the homes of others. He does not distinguish between good and bad[23].’

Critical Analysis with case law references

Thus as adultery is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow whose husband consents to it or with his connivance. “The scope of adultery under the section is limited to adultery committed with married women, and the male offender alone has been made liable.

Hence as far as ‘adultery’ is concerned a case of adultery cannot be filed against women even if she is guilty of having been involved in the extramarital relation. A case under this section can only be filed against the male with whom she enters into such a relationship.

Apart from IPC, there is another penal legislation in India that regulates ‘Adultery’ in India. Ranbir Penal Code, 1932 especially applicable to the State of Jammu and Kashmir is one such legislation. It provides under S.497 for the punishment for the offence of adultery, it reads.

“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 a case the wife shall be punishable as an abettor.”[24]

According to gall up poll 91% of respondent believe that married men and women having an affair is morally wrong. Our ethics and religion talk panel weighted on whether sexting or sending explicit photos of oneself via text message, was akin to adultery. Adultery is viewed by law in many jurisdictions as an offence injurious to public moral and mistreatment of the marriage relationship.

The special treatment given to the women under cl. 3 of Article 15 should be restricted to such cases which must be related to some features or disability which are so peculiar that it differentiates women from men as a class[25].

In State of U.P. v Deoman it was stated that “the equality clauses in the Indian Constitution were framed on the basis of the American Constitution, so to ignore the background is like not only violating the basic norms of comparative Constitutional law but violating the basic principles of interpretation of the constitution[26].”

In Reed v Reed it was stated that The American Supreme Court has stated that where both the sexes are on equal footing and discriminations to particular sex as a class would be like denying the equal protection clause as enshrined in the constitution; – “the very kind of arbitrary legislative choice [is] forbidden by the Constitution.[27]

In Loretta LESLEY v. STATE of Mississippi. It was taken that The wife had extramarital affairs perhaps supports the prosecution’s assertion that she had a motive to kill her husband, but it does not prove that she in fact did kill him. Other evidence is necessary to prove the murder and the defendant’s culpability in the murder; the testimony about extramarital affairs only goes to prove the adultery[28].

In a number of cases, courts have accepted evidence of extramarital affairs as proof of motive in homicide cases,A famous example is that of navy commander KM Nanavati who shot dead businessman Prem Ahuja on April 27, 1959 for an illicit relationship with his wife Sylvia. While Nanavati faced prosecution, Sylvia went scot free.

In United States v. Russell upholding the admission of extramarital sexual affairs evidence, and opining that the prior bad acts exceptions “are not to be construed narrowly”[29]

In People v. Smith, “No rule is more firmly established than that, upon the trial for the murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant’s lawful spouse.”[30]

In Commonwealth v. Heller, ‘approving the use of evidence of adultery to show a motive for murder[31].[33]

In Cantrell v. Commonwealth, upholding the admission of sexual relationship evidence as “probative of a motive for the murder”. Even evidence of conduct subsequent to the murder may be admissible[32].

The figures range from a high of 70% of men and 50% of women cheating on their spouses to more conservative estimates that 25% of married men and 15% of married women have engaged in adultery. Bradford Bigler, Comment, Sexually Provoked: Recognizing Sexual Misrepresentation as Adequate Provocation stated that “adultery statistics are hotly debated,” noting a “relatively high incidence of marital infidelity,”[33]

Like any sexual contact, adultery may result in sexually transmitted diseases. Since most married couples do not routinely use barrier contraceptives, the cheating spouse is very likely to transmit any infection to their unwitting spouse. This is a form of physical victimization that extends beyond the emotional and social consequences often associated with adultery. It is still illegal in some jurisdictions, such as Wisconsin, where it is a felony. Muh. ammad ‘Al¯ı al-B¯ar added that homosexuality is the primary factor in the spread of AIDS in the USA, Canada, andWestern Europe where 70% or 80% of the HIV-positive people are homosexuals. On the other hand, adultery and fornication play a similar role in Africa and Thailand and also in India, where 70% of the prostitutes are HIV-positive. This percentage goes up to reach 80% and 90% among prostitutes in African countries such as Kenya and Angola.[34]

Now men will just abandon women or not give talaq. They wil have polygamy or nikah hallala which creates heel for women[35]. [37] De-criminalisation will result in adulterous relationships having a more free play and weakening sanctity of a marital bond. Sexual union between husband and wife is morally correct and legally acceptable by both society and law. Seeking solace outside marriage is tantamount to betrayal and breach of trust by whosoever solicits it and with whomsoever, be it a sex worker, married spouse of someone else or unmarried person of either sex, with or without consent of husband or wife of a person engaged in sexual union.[36]

Divorce is allowed on paying of fine of RS 50/- if the sought by the husband and RS25/- if the ask for it. Polygamy is forbidden,if women commit adultery, expelled from the caste and funeral feast is given to symbolise her death[37].

Honour killings are acts of violence, especially death committed by male members of the family against female family members, who are held to have brought dishonour to the family. A woman can be targeted by her family for a variety of reasons, including refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce even from an abusive husband and allegedly committing adultery[38]. [ In England the fifth wife of Henry VIII was beheaded based on the allegation of adultery. In British literature, Shakespeare’s Desdemona was killed on an allegation of infidelity and Romeo and Juliet tracked an ancient family feud over honour. King Aurther and the Knights of the Round Table centred on notion of honor.

The analysis also concluded that through adultery there are some other effects like triggers for Post-Traumatic Stress Disorder, ostracization from religious groups, suicide and in this context only child also suffers because of divorce and when one of them get custody if will be somehow difficult to give him wealthy life in every terms if they were not having wealth to fulfil their basic needs .

Government committee stands on adultery as a crime.

The Fifth Law Commission in its 42d Law Reports suggested that Section 497 should not be removed from the penal code, but it recommended that both the man and the woman should be made guilty as there is no valid justification “for not treating the guilty pair alike” and also scaled down the maximum punishment from five years to two years as the existing punishment is “unreal and not call for in any circumstances”[39].

Joint Select Committee

It suggested equal culpability of both the sexes for their promiscuous behaviour, but it was of the view that the old punishment of five years should be retained as it is.

Fourteenth Law Commission, 1997

The Fourteenth Law Commission, in its 156th Report on the Indian Penal Code, also suggested for the reformation of the criminal law of adultery as Joint Select Committee. Moreover, it also suggested that changes must be made in the relevant sections of CrPC also[40].

Justice Malimath Committee

Justice Malimath Committee in 2003 on reforms in the criminal justice system also recommended the recasting of Section 497 IPC to include women as offenders.

Article 1 of the universal declaration of human rights, 1948 declares that all are equal before the law and are entitled without any discrimination the equal protection of law[41].

Conclusion/Suggestion

Criminalising adultery is therefore indispensable for safeguarding institution of marriage. Merely calling it a breach of civil contract, which according to many a marriage is, will not suffice at the juncture[42].

An amendment is required and gender inequality shouldn’t be there. As in India, it’s a civil the offence now which is only ground of divorce, it should be criminalized too as without criminalization the rate of divorce will increase under Hindu marriage act and the conditions of monogamy will violate and moral ethics will leads to decrease in the present citizens and coming generations.

Adultery is brought under the ambit of criminal law. Criminal sanctions may be justified where there is a public element in the wrong such as offences against state security and the like. These are public wrong where the victim is not individual but the community as a whole.[43]

The institution of marriage was put in place in order to bestow moral and ethical sanctity to sexual union between a man and woman and to give children born out of it due to legality and legitimacy.

Striking down of sec. 497 will prove to be a deter mentally to be the intrinsic Indian ethos and will RIP the moral ethics so adultery should come again under penal code with an amendment regarding equality in filling petition and punishment.

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[1] INDIAN PENAL CODE, 1860

[2] Merriam –Webster’s Dictionary of Law ©1996

[3] Adultery needs review not a new definition – The Tribune India

[4] “Encyclopedia Britanica Online, “Adultery”

[5] “Women as Guardian of purity”

[6] Daniel Otto son, legal Survey on the Countries in the World having legal Prohibitiona on Sexual activities between Consenting Adult in Private(2006), Hugo Hotte and Genevieve King Rule, A Comparative and legal Analysis of the Combodian Law on Monogamy(2007)

[7] Where adultery is still illegal? | The Week UK

[8] The hudood ordinance – 7 may 2011

[9] Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[10] THE MICHIGAN PENAL CODE (EXCERPT) Act 328 of 1931, Adultery could mean life in prison in Michigan

[11] 

11“Criminal Code of the Republic of China, Article 239”. Revised Penal Code of the Philippines

[12] How To Sue Your Wife For Adultery In The Philippines

[13] A Lutheran Plague: Murdering to Die in the Eighteenth Century at Google Books

[14] Rod Powers. “Adultery in the Military”

[15] Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[16] Kanchan T and Nagesh KR.Adultery and the Indian law. Int J Med Toxicol Legal

[17]Collective religioscientific discussions on Islam and hivaids

Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[18]Wendy Doniger (1995). Lindsey Harlan and Paul B. Courtright, ed. From the Margins of Hindu Marriage: Essays on Gender, Religion, and Culture. Oxford University Press. pp. 161–165. ISBN 978-0-19-508117-6.

[19] Clive Lawton; Peggy Morgan (2007). Ethical Issues in Six Religious Traditions. Edinburgh University Press. p. 22. ISBN 978-0-7486-2329-7

[20] Wendy Doniger (1995). Lindsey Harlan and Paul B. Courtright, ed. From the Margins of Hindu Marriage: Essays on Gender, Religion, and Culture. Oxford University Press. pp. 161–165. ISBN 978-0-19-508117-6.

[21] Rick F. Talbott (2005). Sacred Sacrifice: Ritual Paradigms in Vedic Religion and Early Christianity. Wipf and Stock Publishers. p. 75. ISBN 978-1-59752-340-0.

[22] Stephanie Jamison; Joel Brereton (2014). The Rigveda: 3-Volume Set. Oxford University Press. p. 566. ISBN 978-0-19-972078-1

[23] Lust in Sikhism – Guru Granth Sahib ji (page no. 93 and 213)

[24] Jammu and Kashmir State Ranbir Penal Code, 1989

[25] Durga Das Basu, Commentary on the Constitution of India at 1796 (Wadhwa 8th ed 2007); Srinivasan v. Padmasini,AIR 1957 Mad 622

[26] AIR 1960 SC 1125, 1131

[27] (1971) 404 US 76, 77

[28] 606 So. 2d 1084 (1992)

[29] 971 F.2d 1098, 1106-07 (4th Cir. 1992)

[30] 203 P. 816, 821 (Cal. Dist. Ct. App. 1921)

[31] 87 A.2d 287, 289-90 (Pa. 1952)

[32] 373 S.E.2d 328, 337 (Va. Ct. App. 1988)

[33]53 UCLA L. Rev. 783, 805 & n. 112 (2006

[34] Collective religion scientific discussions on Islam and hivaids

[35] Indian exprees news – stated by Renuka chaudhary (INC leader)

[36] Adultery needs review not a new definition – the Tribune Article

[37] Agharia tribe adultery custom

[38] Violence against women and “honor” crime, Human Right Watch

[39] Law Commission of India, Indian Penal Code Report Number: 42 326-327 (1972)

[40] Law Commission of India, One Hundred Fifty Sixth Report; Indian Penal Code, (Govt. of India, 1997) para 9.46, 9.47

[41] The Universal Declaration of Human Rights.

[42] Adultery needs review not a new definition

[43]Indian express news article – stated by justice Indu Malhotra

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