Adultery in India

Introduction

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Section 497 of the Indian Penal Code was a section dealing with adultery. Only a man who had consensual sexual intercourse with the wife of another man without his consent could have been punished under this offence in India. The law became defunct on 27 September 2018 by a judgement of the Supreme Court of India.The Supreme Court called the law unconstitutional because it “treats a husband as the sole master.” However it is still a sufficient ground for divorce as ruled by the Supreme Court.

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.

The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].

Section 497 read as follows:

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

The Court began to hear the arguments on this petition on 1 August 2018. The Court said that if the party challenging this section can simply prove that it violates Article 14 of the Constitution of India, then the section will be struck down.

A five-judge Constitution bench of the Supreme Court on 27 September 2018 unanimously ruled to scrap Section 497 and it is no longer as a offence in India

While reading the judgment, Chief Justice Dipak Misra said, “it (adultery) cannot be a criminal offence,” however it can be a ground for civil issues like divorce.

In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

Section 497 IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Section 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sections 497 and 498 IPC.

Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside of marriage. The same restrictions, however, did not apply in case of the husband. Section 497 violates right to privacy as well as liberty of women by discriminating against married women and perpetrating gender stereotypes.

On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.

Conclusion

The most important reason for debate to get re-ignited is the drastic change in the social status of women. Gone are the days when Women were suppressed or subjugated lot. The practices of sati, child marriage, polygamy, etc, have been done away with.

Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almost all professional colleges has a quota for women. Thus women today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women friendly provisions in the constitution insures that women, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery

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