Critical Study on Decriminalization of Adultery

Author: Apratim De[1]

Volume 1 Issue 1

January 2019

ISSN: Applied for…

Authors Note:- In this research paper the author has tried to discuss the laws related to adultery from the past, the latest amendments and had tried to critically analyze the viability of the decision passed by the apex court on the same.

“ Adultery is not always the cause of an unhappy marriage but sometimes it is also the result of an unhappy marriage.”

Yes, u heard it right. Adultery is not always the cause for the failure of marriage but sometimes it is the result of a failed marriage. Most of the times people fail to understand this or are not able to move out of such a marriage due to several factors among which most of the evident ones are the family pressure and the societal pressure and thus this is where people start indulging in acts like fidelity and adultery.

Introduction

Law is an instrument of social change. It is a way by which the people who are oppressed can get justice from the oppressor and also it helps to maintain an equilibrium in the society by preventing the people from turning into barbaric and thus being inhuman.

“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 offense 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]

[4] be punishable as an abettor.” [2]

Historical Background

The laws related to adultery were introduced by in 1860  of the Indian Penal Code. According to Lord Macaulay, an Indian Woman is a holy cow who can never do any wrong. It is the man who commits all the wrong. Moreover, he believed that the women should neither be punished for committing adultery as this would not only be a threat to the holy sanctity of the women but also it would lead to a breaking of the institution of marriage thus leading to family disorganization at large.

Ingredients

Earlier when Section 497 was in force the following were the essential ingredients of the adultery:-

NOTE:- It has to be understood that adultery can only occur when there is sexual intercourse between a married woman and a man without the consent of the husband but with the consent of the wife. Also if the sexual intercourse takes place with the consent of the husband then it would not amount to adultery.

Status of laws related to adultery in other countries of the world

  1. Philippines- In Philippines commission of adultery is a punishable offense. Here if a woman is found to have sexual intercourse or illicit sexual relations outside her matrimonial home then this would lead to an imprisonment of six years both for the wife and her partner when it is proved by the husband. But on the other hand, a husband can be charged for adultery only if the wife is able to prove that he had sexual intercourse under ” scandalous circumstances” with his concubine or had lived together with his mistress in any other place. So for this, the husband can be imprisoned up to four years and a day while his partner would be banished but would face no jail.
  2. China:- In China adultery is not an offense but can be used as a ground for divorce under Article 46 (3) of Marriage Laws of  People’s Republic of China. Also under Article 46, the aggrieved party can only claim for compensation against the wrong done to them.
  3. Saudi Arabia:-In Saudi Arabia practice of adultery is strictly prohibited and this is a punishable offense. Punishments include fines, arbitrary detention, imprisonment, flogging and in extreme cases, the death penalty.
  4. Pakistan:- In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979. The controversial law mandates a woman making an accusation of rape to provide four adult male eyewitnesses of good standing (tazkiyah-al-shuhood) to “the act of penetration” as evidence to avoid being charged with adultery herself.[3]
  5. South Korea:- In South Korea adultery has been decriminalized in 2015. The law related to adultery which was invoked in 1953 was finally revoked by a majority decision of 7:2. Earlier under the old laws, the spouses could have been imprisoned for three years for committing adultery.
  6. Australia:- In Australia adultery is not an offense. Here under the federal laws which were enacted in 1994 sexual conduct between consenting adults is their personal issue throughout the country irrespective of their marital status. Moreover, adultery is abolished as a ground for divorce in Australia.
  7. United States:-  This is among one of the industrialized countries of the world which have criminalized adultery as an offense. In U.S. laws varies from one state to another like for example in the states of West Virginia, Colorado, New Hampshire and Massachusetts laws related to adultery have been repealed but in other states of U.S adultery still stands to be a punishable offense.

Causes of Adultery[4]

Some of the causes of adultery are as follows:-

  1. Internet:- Internet is one of the major reasons for causing adultery. In this era of globalization internet has brought people so close to one another but at the same time, it has negative aspects as well. Like nowadays with the help of the internet and social media it has become very easy for people to commit adultery. Like for instance, there are many online dating sites which help the individuals of opposite sex to meet one another without asking or verifying the details about them.
  2. Avoiding confrontation:-  This is another reason for causing adultery. Nowadays the couples rather than trying to clear their differences try to avoid doing so and as a result, try to find out their emotional and mental comfort outside the matrimonial home. Like nowadays it is very common to see that a spouse has found a coworker with a shoulder to lean on, so this goes without saying that these co-workers play a major role in these illicit relationships.
  3. Boredom:- Many a times boredom leads to the beginning of the affairs or such type of illicit relationships. As in this competitive world, many individuals often fail to maintain the balance between their personal life and their professional life. So many a times it is seen that to secure themselves financially individuals try to give more time to their professional life rather than their personal life, as a result, this amounts to boredom where either of the spouses or sometimes both tries to find the excitement in the relationship outside the matrimonial home.
  4. Failed Marriages:- Failed marriages is also a major reason for adultery. Very often it has been seen that people are forced to do marriages either out of family pressure or society as a result of which in the later stages it becomes very difficult for the spouses to carry on the marriage further. But due to societal pressure, many times the couples rather than bringing an end to such a marriage tries to carry on the marriage further but tries to find out the mental and physical solace outside their matrimonial home.
  5. Unhappy sex life:- Many times unhappiness in sex life is also a major reason for adultery. It has been seen that the spouses are involved in illicit sexual relationships outside their matrimonial home because they are not happy with their married life.
  6. Living Apart:- Living Apart from each other for a long period of time is also a major reason for adultery. Nowadays it is seen that living apart from each other for job has become a common affair. So many a times due to boredom, loneliness and these long distances becomes a reason for causing adultery.

                  Consequences of Adultery:-

  1. Divorce:- One of the major consequences of adultery is divorce. Though the husband and wife are able to tackle the pain of divorce like most of the adults are able to do but what about the children. Most of the times the children are not able to do the same because most of the times it has been seen that the breakdown of the marriage has adverse effects on the lives of the children thus affecting their education, health, personality etc.
  2. Suicide:- One of the adverse consequences of adultery is suicide. Many a time it has been seen that adultery often leads to commission of suicide by many. In fact, even after decriminalization of adultery in India, many cases of suicide were reported as the people had given up on their lives. As because for many it becomes difficult to believe that their loved ones can cheat them to such an extent.
  3. Family Disorganization:- Ultimately adultery leads to family disorganization. It breaks down the trust, bond and the institution of marriage between the spouses thus leaving behind broken families, pain and fear among the members affecting the children the most.
  4.  Physical and Mental Agony:- Adultery often leads to causing physical and mental pain among the spouses. Many a time it is seen that the wrongdoer tries to suppress the other spouse by torturing them both physically and mentally. Also, most of these incidents remain unreported either because of the societal pressure or due to the pressure of the family.

      Critical Analysis of laws related to adultery in India

Recently Section-497 of IPC which earlier used to deal with the laws related to adultery has now been decriminalized after the apex court has passed a unanimous judgment on the same. Also while reading the judgment the former CJI of India Justice Dipak Mishra said that “Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” [5]One of the important observations which the Supreme Court had made while dealing with the case was that the current law on adultery objectifies women and makes them inferior to men thus making them lose their individuality. As Justice D.Y. Chandrachud one of the five members of the ruling bench has rightly said Physicality is an individual choice,” The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of past”.

So more or less the laws related to adultery have been gender biased as it been rather than providing any relief to the women had worsened the situation for them. As because many times it has been seen that in most of the divorce cases the husbands have tried to use adultery as a ground to exempt themselves from paying maintenance to their wives. Also, the Supreme Court has observed that decriminalizing of adultery does not mean that it gives license to carry out extramarital affairs. Rather if adultery is found to be a reason for commission of suicide by the spouses then it would lead to the prosecution of the other spouse committing the same.

Also, this section is gender biased as because under the following section a wife cannot file a suit against the women with whom her husband who is involved in adultery as because under this section only the husband can file a suit against the male partner of his wife with whom she is involved in adultery. So, as a result, this creates inequality between both of them.

As it was observed in the case of  Revathi v. Union of India where the court had observed that a woman cannot file a suit for adultery as because firstly in the eyes of law a woman can never do such a wrong it is the men who always do so. Moreover, the laws of adultery were drafted with the view that the women can never do any wrong it is the men who do so. As Lord Macaulay had once said that Indian women are a holy cow. Also, the framers of the code believed that a husband should never prosecute his wife for adultery as because it would not only lead to a breakdown of the institution of marriage but would also lead to family disorganization.

Conclusion:-

So now as Section-497 of IPC has been decriminalized so it means that now commission of adultery is no longer a punishable offense unless it leads to abetment of suicide. But the laws related to adultery in India has always been a part of controversy because of many factors like firstly it is gender biased then secondly under the previous laws only the husband can prosecute and not the wife. As a result, this had lead to the objectification of the women and had reduced them to a mere object rather than being an individual. Also, the older laws were in conflict with the personal laws of many communities where polygamy is allowed. So, as a result, the previous laws on adultery were not sufficient and needed an amendment rather than eliminating it totally from the statute book.


[1]  B.A.L.L.B 3rd yr New Law College, Bharti Vidyapeeth Deemed to be University Pune.

[2]Indian Penal Code“. Section 497, Act of 1860

[3]  https://indianexpress.com/article/india/india-decriminalises-adultery-a-look-at-other-countries-where-it-is-still-a-crime-or-not-5376598/

[4] https://www.divorcemag.com/blog/most-common-causes-of-infedility-in-a-marriage/he

[5] https://www.reuters.com/article/us-india-court-adultery/indias-top-court-decriminalizes-adultery-in-landmark-judgment-idUSKCN1M71FW

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