This article on ‘Laws Against Extra-Marital Affairs in India’ was written by Ayush Choudhary, an intern at Legal Upanishad.
In India, institutions like marriage are considered to be very pure and holy. Marriage in Indian society is considered to be a bond for seven lives, and thus concepts like Extra-marital affairs are considered a moral wrong. This belief is across all religions, whether it is Hinduism, Sikhism, Jainism, or Christianity. That is why there were strict laws against Extra-marital affairs even in the past. But, over a period of time with the development of fundamental rights, Extra-Marital affairs have been decriminalized in India.
Prior to 2017, an Extra-marital affair also known as adultery was considered a criminal offence and there were strict provisions against it. Therefore, an Extra-marital affair was a penal offence that is defined under Sec. 497 of the Indian Penal Code, 1860. According to it, adultery means an act of having sexual relations with the wife of another man and that too without the consent of that man. Here, this act is not rape but it is called adultery and was thus penalised. As per this Section, if a person is found guilty of Adultery, he can be imprisoned for 5 years or can be punished with a fine or in some cases with both.
Thus, earlier the laws for Extra-marital affairs were very strict.
There was a lot of discussion and debate about the constitutionality of the penalization of Extra-marital affairs. Many scholars argued that such a harsh punishment for such an act is against the Fundamental rights of a person.
It was also argued that having an affair with another man or woman is also a right of a person. Finally, after a long debate in 2017, an Extra-marital affair has been decriminalised by the Hon’ble court in the case of ‘‘Joseph v. Shine’’. Thus, now it is not an offence of high velocity. But it does not mean that it has been allowed in India. In the case of an Extra-Marital affair, a spouse can still reach the court to sue his/her partner for such an act and can claim remedies.
Hindu Marriage Act, 1955
Though an extra-marital affair or Adultery is not an offence anymore still a spouse of the person who is found guilty of Adultery or extra-marital affair can apply for certain remedies under the Hindu Marriage Act, 1955. The remedies provided by this law are as follows-
- (a) Ground for Divorce
According to Section 13(1)(i) of the Hindu Marriage Act, 1955, if a person after the solemnization of marriage engages in any sexual activity with a person other than his/her spouse then the spouse of that person can apply for a Divorce. Thus, under this law Adultery or an Extra-marital affair is a ground for Divorce. Here it should be noticed that this provision is gender-neutral, that is both husband and wife can use it to file a suit for divorce.
- (b) Ground for Judicial Separation
Under the Hindu Marriage Act, of 1955, an Extra-marital affair or Adultery is not only a ground for Divorce but also has been recognised as a legal ground for Judicial Separation. Thus, in the case of Extra-marital affairs spouse can apply for the Judicial remedy also.
Indian Divorce Act, 1869
Not only in Hindu law but also in secular laws, adultery has been defined and prevented. The best example of it is the Indian Divorce Act, of 1869, which is a secular law. According to Section (27), clause(1) and sub-clause(a) of the Indian Succession Act, 1869, adultery or an extra-marital affair is a valid ground for divorce. Thus, in such cases, the spouse of the guilty can claim remedy in court.
Adultery amounting to Cruelty
Apart from being ground for divorce and judicial separation, adultery or extra-marital affair has also been defined as cruelty by the hon’ble high courts of India in many cases. In many cases court declared an extra-marital affair as cruelty against his/her legally wedded spouse. But this act does not amount to cruelty in all cases, and whether the adultery amounts to cruelty or not varies from case to case and depends upon the facts of the case present.
Apart from this, a false case of adultery by a spouse against his/her partner is also a legal wrong and the Hon’ble court held it in the case of Rajbala v. Sukhbir Singh case, where it was said that a false allegation of cruelty by the spouse also amounts to cruelty.
Decriminalisation of Adultery by the Hon’ble Supreme Court is one of the biggest steps of the court toward the development of the legal system and constitution. Earlier when the extramarital affair was an offence it was clearly infringing the rights of a guilty of Adultery because according to the severity of the offence, the punishment prescribed by the law was too much and was thus unfair for the accused. Thus, decriminalisation of Adultery is a great step toward the empowerment and further strengthening of the Indian Constitution.
Adultery or Extra-marital affair is more a moral wrong instead of legal wrong and it is always not necessary that a moral wrong is also a legal wrong and vice-versa. Thus, though an extra-marital affair is immoral in countries like India, it is not required it should also be illegal. But, from the point of view of a spouse, it is wrong and a spouse guilty of such an act should be compensated and provided a proper remedy. Because directly or indirectly an extra-marital affair implies bigamy and Indian Laws do not accept or promote bigamy it is instead an illegal act.
Thus, though adultery has been decriminalised in India long ago, the law provides the person who is affected by such an act proper compensation and remedy, i.e., the legal spouse of the person guilty of Adultery. In this way, the laws in India against extra-marital affairs protect the rights of both the guilty person and the person affected by it, which also indicates the healthy democracy of our nation.
List of references
- Tanuj Kanchan and KR Nagesh, ‘Adultery and the Indian law’ 10(2) International Journal of Medical Toxicology & Legal Medicine (2008)
- Vijendra Kumar, ‘Bigamy and Hindu Marriage’ 59(4) Journal of Indian Law Institute (2017)
- Vijay kumar and ShriKrushna Chowbe, ‘Adultery – A Conceptual and Legal Analysis’ SSRN Electronic Journal, January 2011, available at: https://www.researchgate.net/publication/228263447_Adultery_-_A_Conceptual_and_Legal_Analysis