Adultery in Modern India

19th November, 2024 - 6:25 am Categories: News & Updates 0 Comments

ABSTRACT:

The article dives into the significance of marriage and the repercussions of adultery, specifically its impact on Indian society. It underscores the critical roles of trust and loyalty between spouses. The Indian Penal Code’s Section 497, which was declared unconstitutional by the Supreme Court in 2018 [3], has been a significant legal issue in India, as it defines adultery as consensual sexual relations outside of marriage. Concerns have been expressed regarding the potential societal consequences of this decriminalisation, including the mental health of children, domestic violence, and an increase in divorce rates.

It emphasizes gender discrimination. Section 198(2) of the Criminal Procedure Code, which was declared unconstitutional in the Joseph Shine judgment by the Supreme Court [1], allows only a husband to file a complaint for adultery, thereby reinforcing patriarchal norms. Consequently, it addressed gender discrimination laws, advocating for a gender-neutral approach to re-criminalising adultery that is respectful of the rights of both men and women while also bolstering societal principles and family integrity.

OVERVIEW

We are all aware that synchronization is crucial in married life, particularly when discussing the development of a relationship between a husband and wife who are legally married as time is immemorial. Marriage is the legal and social union of two individuals, referred to as spouses. The responsibilities of both spouses are distinct. We regard marriage as a sacred union between two individuals or two personalities, in which both partners must have faith in one another that they will remain together for the duration of their lives. Marriage is a term that is associated with trust and faith, and it is regarded as the cornerstone of an effective marriage.

We are all aware that India is a country rich in culture and traditions, and no culture permits disrespecting one’s companion by engaging in an action that is unethical or not accepted by society. If we discuss adultery marriage, it enables both spouses to engage in sexual affairs with one another. However, adultery, which is a significant issue in contemporary society, is the primary cause of most unsuccessful marriages and divorces. By engaging in sexual relations with a woman who is not one’s spouse, one is violating the trust of their spouse and family. The bond of matrimony is being disrespected by one.

After the Supreme Court had decriminalised adultery in the 2018 case of Joseph Shine V UOI (2019) 3 SCC 39, the Bharatiya Nyaya Sanhita (BNS) no longer includes the section on adultery [5], which was previously mentioned in section 497 of the Indian Penal Code (IPC). The research conducted in the subsequent paper, which is based on the perspectives of social-legal, feminism, and human rights, posits that infidelity is unethical, not permissible in society, and will harm society, children, and spouses. People assert that the Indian Constitution, specifically Article 21, grants all citizens the right to privacy. However, it does not guarantee the right to intimate relationships with married individuals [4].

DEFINITION

Adultery in India is defined as the consensual sexual intercourse between two individuals who are not married. The penalty for adultery was imprisonment for a maximum of five years, a fine, or both[2]. The wife would not be held accountable as an accomplice in this instance. Adultery is concluded as the sexual relation between a married man and an unmarried woman. Conversely, adultery is not considered when a married woman engages in a sexual relationship with an unmarried man without her husband’s consent. For the act to be classified as infidelity, both parties must be married; if they are unmarried, the definition is not applicable.

ADULTERY AND ARMED FORCES

The Air Force Act, Navy Force Act, and Army Force Act are special Acts that govern all Indian forces. As per Article 33 of the Indian Constitution, the government has the authority to modify the fundamental rights of the Armed Forces[6], which are specifically enumerated. This provision safeguards all of these acts.

In the judgment of Joseph Shine v Union of India, the Supreme Court marked that the judgment did not apply to personnel of the Armed Forces who are accused [7], as it did not apply after the decriminalisation of section 497 of the Indian Penal Code (IPC) and section 198 (2) of the Criminal Procedure Code (CrPC) 1973 as unconstitutional. The Supreme Court’s 2018 ruling decriminalising adultery does not apply to a member of the Armed Forces, which is why the Armed Forces have the authority to take disciplinary action against their officers for engaging in adulterous acts [7].

UNDERSTANDING THE LAWS AROUND ADULTERY:

Section 497 of the Indian Penal Code (IPC) of 1860 criminalises adultery. It explicitly states that having sexual intercourse with the partner of another man provided that she consents, is punishable, but not by her spouse. The section on adultery is no longer included in the Bharatiya Nyaya Sanhita (BNS).

Before 2018, Joseph Shine v. Union of India, Adultery was a punishable offense, and the perpetrator may be subject to an extent of up to five years of imprisonment, a fine, or both as a result of the offense. The following is indicated in Section 198 (2) of the Code of Criminal Procedure (CrPC) of 1973: Only the husband is permitted to initiate a case for offenses of adultery under section 497 of the Indian Penal Code (IPC). The Supreme Court has now declared Section 497 of the India Penal Code unconstitutional, as it treats the spouse as the sole master of the wife, thereby overturning all previous judgments.

IMPACTS:

The decriminalisation of adultery will have a detrimental effect on society and children due to the increased risk of domestic violence and betrayal in relationships.
And who will be responsible for the children after adultery is a basis for divorce? It is a primary factor contributing to the decline of households.

In the past, it was not only considered impolite to deceive one’s spouse; it could also result in severe legal consequences. Many societies were particularly harsh on women who engaged in extramarital affairs, although men occasionally experienced the same repercussions. The penalties may be severe, ranging from physical injury to capital punishment. However, in the 1800s, there was a shift in attitudes, particularly in Western countries, as individuals began to query the government’s involvement in private relationships. In the present day, the majority of Western countries have ceased to criminalise adultery, even though some countries continue to regard it as a crime, with penalties ranging from fines to physical punishment or worse. People have been debating whether it is logical to regard cheating as a crime since the 1900s.

After the decriminalisation of adultery, it is evident that it may still have legal repercussions. In the context of marriage, a specific reason is required to obtain a divorce; however, adultery with an individual who is not one’s spouse is a valid reason for divorce. The act of misconduct by one’s spouse is typically sufficient to terminate a marriage. However, it does not abruptly cease. There, it can influence the allocation of assets in the divorce settlement, the allocation of custody of children, and the denial of alimony, among other things.

We must once again criminalise adultery, as we have done in the past, for several reasons, adultery is a crime that shatters family bonds, and it is imperative to obstruct it to preserve the institution of marriage. Adultery has an impact on society as a whole, as well as on children and spouses.

The decriminalisation of adultery will have a more significant impact on society than it does currently.  Additionally, the incidence of domestic violence will rise as a result of adultery. Adultery is a matrimonial offense that serves as a basis for divorce, which will result in a rise in the number of divorces. This will negatively or negatively impact the youth—the Supreme Court’s ruling in Smt. Sowmithri Vishnu v Union Of India 1988 SCC (2) 72[8], is that adultery will be exploited more than ever if it is exempted. Therefore, to safeguard the interests of society, Section 497 of the IPC will remain in place and continue to be criminalised.

Recommendations:

To safeguard and preserve the traditional values and sanctity of marriage within society, it is recommended that adultery be criminalised. After perpetrating the punishable offense of adultery, it may serve as a defensive measure, demotivating individuals from engaging in extramarital affairs. People perceive it as not only a personal betrayal but also a morally incorrect action that our law should intervene in when an individual violates their marriage vows by engaging in sexual intercourse with another married woman.

The following is defined in Section 198 (2) of the Code of Criminal Procedure (CrPC) 1973:

Only the husband is permitted to initiate a case for offenses of adultery under section 497 of the Indian Penal Code (IPC).

This demonstrates the patriarchy in society, which is archaic and discriminatory against women and treats women as the property of their husbands, thereby violating Articles 14 and 15 [2]. This does not imply that adultery should be decriminalised to ensure equality for both men and women. Adultery will be exploited more than it is currently following its decriminalisation. We are limited to eliminating the portions that were determined to be illegal and criminalising adultery for both genders.

The court can be requested to maintain all of the provisions in their current form, but only the portion that was determined to be unlawful would be removed. Adultery can be criminalized for both men and women. The existence of laws prohibiting infidelity serves as a protective measure for societal morals. These laws are instrumental in preserving traditional values and cultures and preventing infidelity, which can lead to instability within families. The legal framework fosters a more stable society and healthier relationships by re-criminalising these norms.

CONCLUSION

The decriminalisation of adultery increases concerns about its societal implications. Supreme court judgment Joseph Shine overruled all previous judgments on adultery aimed to promote equality by removing discriminatory laws but risks undermining the sanctity of marriage and raising domestic violence. The legal response to adultery leads to increased divorce cases and adverse effects on children, as trust and loyalty are grounds for marital relationships.

To sustain family integrity and societal values, it’s crucial to take another look at ways the law pertains to adultery and plead for a balanced approach that gives rights to both spouses.

Author: Abubakar, A  Setudent at Mahatma Gandhi Mission’s Law College, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

BIBLIOGRAPHY:

1. 1. Vij RK. Adultery as misconduct and judicial musings [Internet]. The Hindu. 2023. Available from: https://www.thehindu.com/opinion/op-ed/adultery-as-misconduct-and-judicial-musings/article66611734.ece
2. Adultery and related intricacies [Internet]. Drishti IAS. Available from: https://www.drishtiias.com/daily-updates/daily-news-analysis/adultery-and-related-intricacies
3. Manupatra: https://updates.manupatra.com/roundup/contentsummary.aspx?iid=17035
4. Law Bhoomi:

Joseph shine v Union of India

5. Pathak M, Jha R. A Guide to India’s New Criminal law: Understanding Bharatiya Nyaya Sanhita (“BNS”) [Internet]. Lexology. 2024: https://www.lexology.com/library/detail.aspx?g=9f7dd687-05f1-4785-865d-e18520becaee#:~:text=Decriminalizing%20adultery%20(Section%20497%20IPC,judgement%20of%20Joseph%20Shine%20v.
6. Constitution of India. Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. – Constitution of India [Internet]. Constitution of India. 2023: https://www.constitutionofindia.net/articles/article-33-power-of-parliament-to-modify-the-rights-conferred-by-this-part-in-their-application-to-forces-etc/
7. Chowdhury S, Law L. Armed Forces personnel liable to face disciplinary action for adultery despite striking down of Section 497 IPC : Supreme Court. Live Law [Internet]. 2023 Feb 18: https://www.google.com/amp/s/www.livelaw.in/amp/top-stories/breaking-armed-forces-personnel-liable-to-face-disciplinary-action-for-adultery-despite-striking-down-of-section-497-ipc-supreme-court-220328
8. Lawsisto. Case Analysis: Sowmithri Vishnu vs. Union of India  | Lawsisto Legal News: https://lawsisto.com/legalnewsread/OTA2OA==/Case-Analysis-Sowmithri-Vishnu-vs-Union-of-India