This article on ‘ADULTERY LAW IN INDIA: ALL YOU NEED TO KNOW’ is written by an intern at Legal Upanishad.
Introduction
India is a country that values its cultural heritage, and anything that is out of context is considered immoral. One such concept is adultery. In India, marriage is considered a pure relationship, not just in this life but even for the next seven lives, and an extramarital affair that splinters the purity is considered immoral and against the values of culture.
Adultery is the act of a consensual sexual relationship of a married person with a person outside the marriage. In simple words, adultery is an extramarital relationship. It is one of the many grounds for divorce in India as per the Hindu Marriage Act, Sharia Law, etc.
Section 497 describes adultery as, when a man has sexual intercourse with someone whom he knows or someone else’s wife, without the consent of that said person’s husband’s permission then it will not equal to rape but it will equal to adultery for which the man can be punished with imprisonment for a term, up to 5 years or a fine or with both. And the wife of that man will not be considered as an abettor.
IPC Section 497 is being practiced in India for the past 150 years. Adultery Law India was an offence under Section 497 of Indian Penal Code, 1860, that could be given a punishment of up to five years in jail or a fine or with both.
Section 497 of the IPC was struck down as unconstitutional by the Supreme Court of India in the year 2018. Justice Dipak Mishra who was a part of the review bench of judges that revoked section 497 expressed that this law force couples to stay true to each other against their wish in a married relation in the fear of penal punishment. He believed that criminalizing adultery was too much.
Here, in this article, we will look into what adultery is, adultery as an offence in India, and how it got revoked.
What is Adultery?
According to the adultery law in India in its basic sense is an extramarital sexual relationship, where the husband or wife gets into an extra relationship and will have sexual intimacy with that person while already being married to someone else.
As per Section 497 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 case, the wife shall not be punishable as an abettor.”
Adultery law in India
Currently, as per the adultery law in India, it is a ground for divorce but not a criminal offence. Section 497 of the Indian Penal Code used to deal with the concept of Adultery. It was struck own in the case Joseph shine vs. Union of India as the bench consisting of five judges realized the issues related, such as
- Gender inequality.
This section only provided its power to the husbands and not to the wives. Husbands could file a case of adultery under this section against the wife but the wife didn’t have the same right and the section says if the husband consents then the extramarital relationship isn’t adultery. This law itself was violating the rights of a woman such as:
Article 14 (which provides equality before the law)
Article 15 (right against discrimination)
Article 19 (right to freedom- freedom of sexual expression)
Article 21 (right to life)
Section 497 portrays the wife as a husband’s property or a woman as the property of a man. This law gives the husband the right to interrogate the adulterer but the wife does not have such provision under this law. This section only talks about the extramarital relationship of a husband with a married woman and not an unmarried woman, it equals permitting such a relationship with an unmarried woman.
- It forces the couples to compromise and adjust to a relationship in fear of the penal penalty.
This is another ground on which section 497 was revoked. It tends to curb couples from fully expressing themselves sexually, resulting in them keeping a relationship alive just for the sake and not even getting a divorce as it can get them the punishment for adultery.
Marriage is a social institution where a person can live freely and happily and it sets a foundation for the family, if the foundation itself is damaged then the family built on it won’t survive. People will suppress their desire to get a divorce on the ground of adultery on the fear of punishment which can lead to all these problems later.
These are the main reasons that lead to the revocation of Section 497. The supreme court of India now only recognizes adultery as a ground for divorce but not as a criminal offence.
Recently, the Supreme Court of India accepted a petition filed by the ministry of defence to exclude the families of Armed Forces from the revocation of Section 497.
Suggestions
In my opinion, decriminalizing adultery law in India is a good step towards a progressive social system. By decriminalizing adultery, the common people of this country may also be able to take a case of adultery more lightly and not as a crime and see it as less immoral, which may also reduce the honour killings done by a partner on other upon the scenario of adultery.
Adultery should not be seen as an immoral concept, whatever a person does which doesn’t harm others is their personal choice. But as chief justice Dipak Misra has said ‘the fear of being punished should not be the reason for a person to stay in an unhappy marriage.’ Those fears of being punished in a way deteriorate a person’s ability to make a decision.
India is a free country and people of it shall be able to make personal decisions, such as with whom they shall maintain a sexual relationship shall not be obstructed by law.
Conclusion
Even though adultery law India is decriminalized it is still considered a socially unruly act.
The last 150, years adultery was considered a criminal wrong, but now after the judgement by the Hon’ble Supreme Court in Joseph Shine vs. Union of India, adultery has been decriminalized as it only acted in the favour of a man and treated women as property of a man, ignoring many fundamental rights provided to a woman by the constitution of India.
A law shall be equal to everyone and shall treat everyone as equals irrespective of their gender, religion, class. Etc. decriminalization of Adultery law in India is one example of that.
Reference
- LEXLIFEEDITOR. JANUARY 31, 2021. Adultery law in India: Recent Development. India. RETRIEVED https://lexlife.in/2021/01/31/law-of-adultery-recent-development/
- Jamuar. OCTOBER 13, 2019. Offence of Adultery law in India- A Study. India. RETRIEVED https://blog.ipleaders.in/offence-adultery-india-study/
- Miscellaneous.
Contact us for more information.