Decriminalization of Adultery: Not a Licence to Be Adulterous

  • Shivanshu K. Srivastava

The Hon’ble Supreme Court of India gave a historic judgment in the case of Joseph Shine v. Union of India[i] wherein it decriminalized the British colonial-era provision that made Adultery a punishable offence under Section 497 of the Indian Penal Code, 1860.
Strictly speaking, the penal law on Adultery was against the interest of both the husband and the wife. Section 497 provided punishment for men committing adultery while a woman who was in pari delicto deemed to be innocent. It was also against the dignity of women since it regarded their husband as the master of his wife and objectified women as being the property of their husbands. This was ipso facto an unreasonable classification that was erroneously overlooked by the judiciary for many decades.
In this era when we talk about gender equality and have debates over the sine qua non of enacting gender-neutral laws, we need to have an open deliberation over the sexual autonomy of persons.

The previous stand of the court:

Time and again the constitutional validity of Section 497 of the Indian Penal Code has been challenged. Earlier the Supreme Court held that decriminalizing Adultery would imperil the sanctity of marriage which may adversely affect the society.


In one of its earliest judgments on Adultery in the case of Yusuf Abdul Aziz v. State of Bombay[ii], the Hon’ble Supreme Court upheld the constitutional validity of Section 497 of the Indian Penal Code. This was the first time when a petition was filed in the court challenging the constitutional validity of the offence of Adultery. It was contended by the petitioner that Section 497 was against the spirit of the equality clause enshrined in the Constitution of India. However, the Supreme Court rejected these contentions of the petitioner.


In Sowmithri Vishnu v. Union of India[iii] the Supreme Court observed that Adultery is not violative of the Constitution, and the consent of the wife is irrelevant. However, this case is significant in that it led to the development of the factors that eventually resulted in the decriminalization of Adultery. Similar views were expressed by the court in V. Revathi v. Union of India[iv] wherein the petition was dismissed on similar grounds.
Although in Sowmithri Vishnu’s petition the court maintained the validity of the said section, it accepted the fact that the archaic notion that it is the man who is always the seducer in adulterous acts and never the woman may have changed with the ever-changing society. This suggested that it was for the legislature and not the judiciary to decide whether the society has actually undergone any such change and to make amendments in the section if required.


We live in a dynamic society and the collective conscience of the society is bound to change with time. A focused observance of the present society reveals that the age-old notion of man being the seducer in each and every case is pro tanto unfounded.

The paradox with Section 497:

Under the erstwhile section punishing adultery, neither the husband could institute criminal proceedings against his wife who had had an illicit relationship with another man, nor could the wife prosecute her husband who committed the same offence with another woman. It was only that husband whose wife had been adulterous with another man, who was considered the actual victim. In the same way, it was the man who had committed adultery with another’s wife and not the wife herself, who could be held guilty and accordingly subjected to imprisonment up to five years, or fine or both under Section 497. This reflected an obnoxious idea that the wife is the property of the husband and hence she could not be physically trespassed upon without the husband’s consent. This, in turn, raises many socio-moral objections.


Firstly, it indicates that if the husband consents upon his wife sleeping with another man, then it would not amount to an offence under this section. The wife’s consent is irrelevant as far as this section is concerned, and she could only take the help of Section 376 (Punishment for rape) in case she had not consented.


Secondly, this section would not be attracted if the husband had sexual intercourse with an unmarried or divorced woman, let alone the fact that the wife could not prosecute the husband for the same. It was as if the husband had a free licence to commit adultery with an unmarried or divorced woman.
Thus, Section 497 was unjustifiable for both the husband as well as the wife.

Decriminalization of Adultery:

In Joseph Shine v. Union of India a bench of five judges of the Supreme Court finally overruled its previous judgments on Adultery and struck down Section 497 of the Indian Penal Code and S. 198 (2) of the Code of Criminal Procedure, 1973, as unconstitutional. The decision was taken in the light of various sources like the precedents of previous cases, recommendations of the Law Commission and the position of Adultery in many other countries. The court eventually concluded that Section 497 was in violation of Articles 14, 15 and 21 of the Constitution of India.


The court in this case further noted that the right to live with human dignity under Article 21 embraces the “right not to be subjected to public censure and punishment by the State except where absolutely necessary”. Therefore, Section 497 was violative of Article 21 as well.

Conclusion:


On a comprehensive reading of the judgment given in Joseph Shine’s case, it becomes clear that it is completely in favour of the society and not against the institution of marriage as was wrongly depicted by some people, including few media houses. By rendering this judgment, the court has not licensed the commission of Adultery but has only decriminalized it. Adultery still exists as a civil wrong and a suit for divorce or judicial separation can be filed on the ground of Adultery. Thus, it can be fairly concluded that the paradox and irrationality formerly associated with the offence of Adultery has now been removed while the necessary civil consequences have been left untouched.

The author is in the 4th year, pursuing B.A LL.B (Hons.) from Faculty of Law, Lucknow University.

ENDNOTES:


[i] 2018 SCC OnLine SC 1676

[ii] AIR 1954 SC 321

[iii] AIR 1985 SC 1618

[iv] AIR 1988 SC 835

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