Analysis

Decriminalization of Adultery

July 12, 2021

137

Table of Contents

Abstract

There is a historical school of jurisprudence that attaches a lot of importance to history. The school advocates the ideology that Law is not made, but it grows like a language in society. The paper attempts to investigate whether decriminalization of adultery law was a wise decision made by the judiciary for promoting equality of women in Indian society or was it a license to promote extramarital affairs in the society without fearing any punishment from the married husband or the society.

Introduction

When a human society comes into existence, marriage and family are the components that people adapted to become an economically prosperous and politically established society. With the adoption of marriage and family as their fundamental components, norms and rules are adopted to discipline and organize the functioning of the marriage.

According to the sociologist Alfred McClung Lee, “Marriage is the public joining together, under socially specified regulations of a man and woman as husband and wife” and according to sociologist Malinowski, “Marriage is a contract for the production and maintenance of children”[1]. Broadly speaking, marriage is a contractual, social, and legal approved relationship between a male and a female (after marriage being declared as husband and wife), whereby they achieve a legal and social right to have emotional and sexual relations with each other and having the right to have offspring. Thus, marriage leads to the creation of a family institution whereby they all enjoy immunity from being called as having an illegitimate relationship and having or procreating illegitimate children. However, within the society, new thinking – the concept of adultery (a consensual extramarital sexual relationship between married and non – married or with another married partner[2]) was born which was an abomination to marriage or an illegitimate bond according to the whole society and the other married partner.

Adultery developed from the old French word avoutrie, which got its meaning from a distinct Latin verb- Adulterāre, meaning to corrupt[3]. Adulterāre, formed from 2 words (ad – to or near and alter – other)[4] – thus, depicting the bond between partners beyond their respective marriage.

What is Adultery under law of crime

Section 497 of the Indian Penal Code reads as follows-

Section 497. Adultery states – “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”[5].

Adultery under law is defined as: “a voluntary extramarital intercourse with person of opposite sex, whether unmarried (single) or married (double adultery)”. Under the section related to adultery under Indian penal code, the person is blameworthy of cuckoldry if –

Person had involved in copulation with the woman or another man,
Who is and the person recognizes or has a suitable basis to accept the individual be either the spouse of another man or husband of another’s wife,
Without the consent of that person,
The physical relations not leading to rape.

Thus, according to the above-mentioned provision, where the third party or had relations sexual in nature with the aggrieved party’s wife, the husband could also prosecute the paramour of his wife. However, adultery will be no offence if the married person has sexual relations with –

An unmarried woman,
A widow,
A wedded lady whose spouse agrees to it,
Divorced woman.

However, the section also includes a provision whereby the wife cannot be punished as an abettor[6].

Distinction between Adultery and Rape

Sex act with a bachelor lady, widow, divorced woman, or with a wedded lady whose spouse agrees to it is no adultery. However, copulation with a woman whether married or un married amounts to rape.
Infidelity can’t be done by spouse with his married partner, while assault can be done against his married partner. (in the event that spouse being under 15 years old). Sexual assault can be committed against any woman; however, adultery can be done with wife or husband of the married partner.
The act amounts to rape if the intercourse is done without the consent and against the will of the woman. (act will amount to rape even if the consent of woman is obtained but the condition provided that woman being a minor). However, the act amounts to adultery if copulation is committed by having consent of the partner.
Lastly, assault is an offense against the lady while infidelity is a wrong against marriage[7].

How law led to defeat of constitutional validity of constitution

Article 14 of the Constitution of India reads as follows:

“Equality before law –The State shall not deny to any person equality before the law or the equal protection of the laws within the region of India”[8].

The constitution of India guarantees the Right to Equality to its citizens through articles 14 to 18. The dogma of impartiality before law guaranteed by the Indian Constitution is a necessary outcome of Rule of Law permeating the Indian constitution. Article 14’s basic objective is to promote equality of status and opportunity amongst all persons, citizens or non – citizens. The aim is to promote equality of status and opportunity referred to in the Preamble of our constitution. However, article 14 (consisting of the principle of “non-discrimination”) is to be read with rights guaranteed by other articles like article 21 guaranteeing “right to life”. Together with articles 21 and 14, they become the heart of the chapter consisting of Fundamental Rights[9].

Article 21 of the Constitution of India reads as follows:

“Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law”[10].

When the constitution of India came into effect on 26 January 1950, every Indian was gifted with the fundamental rights, out of which Article 21(Protection of life and personal liberty), which when further expanded by Apex court in the case of “Maneka Gandhi vs. Union of India”, the court introduced a new dimension under article 21 (the right to live with personal liberty). Apex court said that the right to life does not mean the right to animal existence, but a right to live with human dignity, which was the greatest promise given by the Indian constitution and correctly interpreted by the Apex court in Maneka Gandhi’s case. Thus, equality now fully weds the constitution of India and thereby delivering the idea of equality from the constitution to the society more effectively. The principle (Neither Parliament nor any state legislature can transgress the principle of equality was recapitulated by the Apex court in Badappanavar in the following words-

Equality is a fundamental tenant of constitution of India, and any treatment of equals unequally or unequal as equals be violation of basic structure of Constitution of India.

Equality before the law and equal protection of laws is the quintessence of Right to Equality, a fundamental right guaranteed under the Constitution of India. Article 14 (with the underlying purpose to treat all persons similarly circumstanced alike both in privileges and liabilities imposed) bars discrimination and discriminatory laws and is now working as an effective mechanism against arbitrary or discriminatory state action. Article 14 (which states- The State shall not deny to any person equality before the law or the equal protection of the laws within the region of India), involves two significant doctrines within it.

The first is the negative concept (which ensures that all are equally subject to the ordinary law of the land and no person irrespective of his rank or posts or position, is above law). The second is the positive concept (whereby every person is subject to “equal protection of laws”). The second concept postulates the application of the same laws alike and without discrimination to persons similarly situated. Therefore, it denotes equality of treatment in equal circumstances. The Apex court in – “Shri Shrinivasa Theatre vs Government of Tamil Nadu[11]” has said that the two expressions “Equality before the law” and “Equal protection of laws” do not mean the same thing despite there may be much common in them. “Equality before the law” is a dynamic concept and has many facets. Out of which one of the facets includes that there shall be no privileged person or class that shall be above law.

Another facet includes the obligation of the state to bring about through machinery of law a more equal society. For equality before the law can be predicated meaningfully in an equal society. Concludingly, the legislature is entitled to make a reasonable classification for purposes of the legislature and treat all in one class. Since article 14 forbids class legislation and a classification made favoring anyone may be held discriminatory, if being arbitrary, discriminative, and has no reasonable basis on which classification was made. Thus, in relation to article 14, the Apex court underlined the following principle- “Article 14 of constitution assures impartiality among equals, it’s goal is to protect people equivalently placed in contrast to unequal treatment. It would not operate on logical classification. A person setting up a grievance of denial of similar treatment by law should establish that between persons similarly circumstanced, some were treated to their prejudice and differential treatment had no reasonable relation to object sought to be achieved by law”[12].

After understanding the notion of impartiality which is guaranteed by the constitution of India, let us understand how the 158-year-old colonial law led to the defeat of the validity of the constitution. But before it, let us see how society looks at women and marriage. What are the biases which exist against woman and how the woman was previously seen as non-entity gaze of the law.

In India, because of the cultural and societal accepted norms, the prevalence of the regressive thoughts and beliefs that men are somewhat different and superior to women, the woman being impure because of her mensuration cycle or woman being burden over her parents (issues like the responsibility of getting her married and issue of storing the necessary amount of dowry, the woman upon being married leaving her parents or wouldn’t carry her family’s name), had, is and will always lead to prevalence and practices of violence in society.

Indian society being plagued by these regressive, inhuman practice of violence against women and the reforms which were introduced in reaction to these practices which attempted to cure these regressive mindsets of men and to stop the violent practices against women, such things in society led to a widespread increase of crime which was not in the best interest of the existence of healthy society. Addressing all those problems which existed in society and in an attempt to solve all these problems, many laws were introduced to not only protect the woman, but also to penalize the discriminatory practices practiced against them.

But even after it, why the conditions are still worse?

Although there may be several reasons such as improper enforcement of laws, several technical loopholes in laws that were ignored and never worked upon, but the foremost and the most important reason for the failure of these laws is because making normative changes in the law though would lead to social reformation in society but it would not make the law an effective social control unless and until there will be Equal Domination in society, Control, and Entitlement (it means the law does not reflect the female experiences, how they felt after going through such violence but the punishments were only based on male experiences, how they felt about women (as helpless victims to such violent crimes), and entitlement not being based to be in the best interest to benefit men or in the best interest of the patriarchal society).

Now viewing marriage, the lawmakers thought that adultery would make the matrimony/ marriage impure. Since in the eyes of society, the relationship of man and woman is seen as one of the owner and owned where the wife is like any property which is owned by his husband. Since the society applies the owned and owner concept in marriage, they view the union of husband and wife as a contract whereby the property (wife) is owned by husband (owner). Thus, the lawmakers who were themselves endowed with such thinking while making the law, therefore, the law also reflected their thinking and became blatantly biased against the woman.

The various observations noted from Apex court and High court judgments lead us to the conclusion that man can commit adultery. The married woman who is involved in the conduct is not punishable as an adulteress because she is treated as a “victim” not an “author of the offense”. This thinking comes from the belief that people have where they consider women as non-person. The free will of a woman is not considered and the section is neither concerned with the intentions of women for the adulterous act. Moreover, women whose lives are affected by the crime of adultery – “the aggrieved wives”- if the adulterer is married, are not deemed to be necessary and interested parties in the trial or its criminal consequences. It is because a woman is looked down upon as an object, as inanimate property, whose rights are almost transferrable. The woman is thus considered as a property or non-entity gaze of the law.

Moreover, as written above, if a married man has sexual intercourse with an unmarried woman it will not be considered an adulterous offense. It is because the law sees the unmarried woman as no one’s property and even her parents and brothers cannot make the adulterer liable because they hold the woman in trust and have no ownership rights that could allow the woman’s parents or her relatives to punish her paramour.

DOUBLE STANDARDS OF LAW

Even under section 497, if the husband has a sexual intercourse with the woman who either is an unmarried woman, a widow, married woman whose husband consents to it or a divorced woman, the adulterer’s own wife could not make his husband liable for the adultery. Even the complaint can only be done by the aggrieved party that is husband of the woman who had herself engaged in the sexual intercourse with her paramour. Thus, the offence reflects the discrimination which correctly defeats the constitution validity of equality[13].

How the decriminalization of adultery led to promotion of equality in the human society

A five-judge constitutional bench was unanimous in holding section 497 of Indian penal code, dealing with the offence o adultery as unconstitutional and stuck down the penal provision. The bench comprising o Dipak Mishra, Indu Malhotra, DY Chandrachud, Justice Nariman and AM Khanwilkar declared the section related to adultery as against constitution. The Chief Justice of India and Justice Khanwilkar declared Section 497 of the Indian Penal Code and Section 198 of Code of Criminal Procedure relating to the indictment of the offenses against marriage as unlawful since the provision of infidelity was in a greater amount of supportive of man, so it was decriminalized so as to give equivalent right to lady. In the previous judgements like-

Sowmithri Vishnu vs. Union of India[14]

Where Apex Court held that section is not discriminatory between man and woman, that is an under inclusive definition is not necessarily discriminatory. The court further held it does not stand against Article 14 or 15 of Indian Constitution. Similarly, the absence of hearing the woman, impleading her as a necessary party to prosecution under section 497 does not violate Article 21.

2. Revathi vs. Union of India[15]

In this case court, referring itself not an arbiter of wisdom or the philosophy of the law but the arbiter of the constitutionality of the law, the court observed that there is a reverse discrimination “in favor” of woman rather than “against”.

However, upholding the constitutional validity of the section 497 but a fact is to be also realized that the man is not always the seducer in every case, and the laws involving the dynamic concept within them, that is the law have the capacity to be evolved in order to address the new evil practices practiced in the society, it is the duty of the legislature to decide whether section 497 requires any changes to reflect the “transformation” which the society has undergone. However, in Joseph shine vs. Union of India[16], the Apex court finally overruled its previous judgements given in Sowmithri Vishnu vs. Union of India and V. Revathi vs. Union of India, by declaring section 497 of Indian penal code and Section 198(2) of CRPC as unconstitutional. The court further declared Section 497 as a clear violation of Article 14, 15 and 21[17].

Main highlights of the verdict given by Apex court in decriminalization of Adultery

CJI Dipak Mishra said that adultery can be a ground for divorce but not as a criminal offence
CJI Mishra and Justice Khanwilkar said mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then it could be treated as abetment to suicide.
The bench held that adultery can be treated as a civil wrong for dissolution of marriage
Delivering its judgement, the apex court provides that unequal treatment of women invites the wrath of the constitution[18].

In the society, a union of marriage was seen from

owner and owned concept
where woman was seen as non- person and a mere property of the husband
the marriage being a permission from woman pledging her sexual autonomy to her husband
Disallowing woman from having consensual sexual relations with any person after marriage
Woman after marriage having only that relationship with her marital parents as that of property with the persons who only hold it in trust

And many other discriminations which denied woman enjoying equal rights in the marriage, thus in order to uplift their conditions in society made apex court struck down the 158-year-old law by declaring it unconstitutional (Justice Chandrachud said that there cannot be any limitation on the desire (with whom she want to have sexual relation) of woman. The section 497 grants a married person’s sexual intercourse with an unmarried woman, with woman the husband consents to it, divorced woman or a widow as an exception and not be recognized as an adultery but a married woman having consensual sexual relation with her paramour as an adultery and a criminal offence. Isn’t it an un equality and infringement of the notion of impartiality guaranteed by the fundamental rights?

Thus, it was in response to such an issue and discrimination against woman, the development of modern beliefs and thoughts that woman are free to have sexual relations with any one she wants in the society and viewing this colonial era law an infringement on not only on the notion of impartiality but on the woman’s right to enjoy and exercising her freedom in society thus, the apex court decriminalized the adultery in order to promote equality in society, to remove constraints upon woman so that she may freely have consensual sexual relations with any one she wants.

Conclusion

It is a common practice everywhere to classify the human community based on sex into groups of men and women. The biological fact of sex has created much difference between them. The aims, objectives, desires, aspirations, duties, and responsibilities, dress styles and behavioural patterns, roles, statuses of men and women are different. Nowhere in the history of humanity men and women were treated alike and assigned statuses alike. Women have not been able to lead a life exactly on par with men and women were treated alike and assigned statuses alike. This does not mean that men and women represent two different cultures as such. They represent one way of life, one culture, and one heritage. The type of statuses assigned to women in any society reflects the nature of its cultural richness and the level of its civilizational standards. Hence, Swami Vivekananda said, “that country and that nation which did not respect woman have never become great nor will ever in the future”. The degree of freedom and respectability gave to the woman to move about and take part in public activities gives a good idea of the nature of the society to which they belong. The status accorded to women in society symbolizes its level of progress. The spirit of a civilization can be assessed by how women are treated by the members of that civilization[19].

[1]C N Shankar Rao, Principles of Sociology with an Introduction to Sociological Thought, 357 (S. Chand And Company Limited, Ram Nagar, New Delhi, 7^th edn., 2012).

[2]Definition of adultery, 2020, India, available at: define adultery (last visited on Feb. 6, 2021).

[3]Why Is It Called “Adultery” When Its Not A “Particularly” Adult Thing To Do?, DICTIONARY.COM, available at: https://www.dictionary.com/e/adultery/ (last visited on Feb. 6, 2021).

[4]Adultery, Merriam-Webster, available at: https://www.merriam-webster.com/dictionary/adultery#:~:text=Although%20both%20words%20come%20from,of%20the%20Latin%20word%20adolescere%20( (Last visited on Jan. 6, 202).

[5]The Indian Penal Code, 1860 (Act 45 of 1860), s. 497.

[6]K.A. Pandey, Indian Penal Code (EBC Publishing(P) Ltd., Lalbagh, Lucknow, 4^th edn. 2017)

[7]Supra note 6.

[8]The Constitution of India, art. 14.

[9]M.P. Jain, Indian Constitutional Law (LexisNexis, Calcutta, 8th edn., 2018).

[10]The Constitution of India, art. 21.

[11]1992 AIR 999

[12]Supra note 6.

[13]Supra note 6.

[14]1985 AIR 1618.

[15]1988 AIR 835.

[16]2018 SC 1676.

[17]Supra note 6.

[18]Supreme Court strikes down adultery as an offence: Highlights, THE TIMES OF INDIA, available at: https://timesofindia.indiatimes.com/india/supreme-court-strikes-down-adultery-as-an-offence-key-highlights/articleshow/65975511.cms (last visited on Jan. 31, 2021).