A Critical Analysis on Decriminalizing Adultery

  • Shivanshi Shukla
  • Show Author Details
  • Shivanshi Shukla

    Student at Symbiosis Law School Noida, India

Abstract

Criminal Law is a body of International law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against humanity, as well as the crime of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law. "Classical" international law governs the relationships, rights, and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation of those prohibition imposed by individual states. International criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals. Some precedents in international criminal law can be found in the time before World War I. However, it was only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The International Military Tribunal for the Far East). It operated from 1946 to 1948.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 2507 - 2530

DOI: http://doi.one/10.1732/IJLMH.26545

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

Adultery was not an offence in India either for men or for women before the Indian Penal Code was enacted. The first report of the Penal Code was also not included. The second law, nevertheless, was supplemented by the Commission. The Law Commissioners observed that adulterous men were not punished by the then prevalent social infrastructure and the secondary and economically dependent position of women. Further, the authors observed that the adulterous relationship of a wife is socially conditioned as a polygamy. Nor was it a culture of shock for her. She felt humiliated.

Adultery has been incorporated into the Indian Penal Code as an offence which punishes only the adulterous men who, in their view, have lived already in low and oppressive conditions in the family. In its recent decision on the case of Joseph Shine v. Union of India the Supreme Court abolished the 158-year-old Victorian Morality Act on Adultery. The decision is one of this kind, and all prior judgments upholding the crime of adultery have been overridden.

The advantages have disadvantages and the same may be true of this judgement. Now, therefore, adultery is legal but still unethical. The marriage institution is dependent on the mutual trust of the partners. The Court has rejected its interference with people’s personal and moral lives. Adultery has become a civil mistake, the remedy for which is divorce.

(A) Scope of Research

This study will be devoted to the Adultery Law in India, before and after Joseph Shine v. Union of India[2] judgement. Initially, the Victorian Adultery Statute, which was practised for 165 years now. Secondly, the question of the constitutionality of Section 497 of the Indian Penal Code has, in the past, been checked. Thirdly, the critique of Joseph Shine v. Union, India ‘s latest decision on the decriminalisation of old adultery law. Finally, the dissertation deals with the different countries’ adultery legislation and penalties.

(B) Research Problem

Adultery is a universal occurrence of human beings. It is threatening the heart of the family life and the stability of the marriage institution and could lead to uncertainty about the fatherhood of marriage. The question of law is not only a moral one, it has been addressed in numerous avenues over the last couple of millennia. The legal implications of adultery vary depending on location, communitarian values, the era in history and the dominant ideology. There have been many controversies and discussions about whether or not in India adultery should be a crime. Adultery was an offence under the Indian Penal Codification Code until the Apex Court in India decriminalised adultery in the landmark judgement on the grounds that this principle was archaic and discriminatory in terms of gender. For reasons more than one, the Supreme Court’s decision in Joseph Shine v. Union of India, which struck Section 497 of the Indian Penal Code and Section 198(2) of the Code is monumental. The Court has seldom defined a semantic feature of a penal code in its institutional history.

(C) Research Questions

  1. In Joseph Shine v. the Union of India, what was the rule on adultery before the landmark ruling by the Supreme Court?
  2. In the USA and in England and in other countries what is adultery’s juridical status? Is it a felony or a divorce only?
  3. In a seminal decision of Joseph Shine v. Union of India, what was the Supreme Court strategy to decriminalise adultery?

(D) Hypothesis

Prior to the landmark ruling, the rule on adultery was an archaic law that discriminated against women and men. In ruling former section 497 of the Indian Penal Code as unconstitutional, the Supreme Court was right.

(E) Review of Literature

  1. Alyssa Miller, “Punishing Passion: A Comparative Analysis of Adultery Laws in the United States of America and Taiwan and their Effects on Women Alyssa Miller”, Fordham International Law Journal Volume 41, Issue 2 Article 4, Pg 425-470

This comprehensive analysis contrasts the adultery law between the United States and Taiwan. The author deeply explores the history of the Adultery Act and its development in years of modernization and globalisation in the Americas and Taiwan. The article compares adultery (having a wedding sex) with passion. The article also states that, although adultery is legally illegal in most states in the US, the accused seldom receive serious penalties such as imprisonment. This is not the case for Taiwan alone, however. Adultery is condemned by other countries in the Middle East and adulterous women are more spiteful and physical or psychological than adulterous men.

The analyst then goes on to rationalise why Adultery must not be considered a crime, and how it is discriminated against by women, and puts forward arguments in support of decriminalising adultery.

The author compares the laws of adultery in the United States of America and Taiwan in the following points –

  1. Repercussions for Adultery in Society
  2. Present and Past Legal status of adultery in the United States and Taiwan
  3. The rate of women convicted of the offence

2. Anna Duff, “What is adultery, is it the same as cheating, is it illegal in the UK and is it grounds for divorce?,” The Sun (18th September 2018)

Anna Duff ‘s Article deals with the United Kingdom’s Adultery law. The author explains how adultery and cheating are different, a common mistake made by many. In England and Wales, the article states that the definition of adultery is limited. The term “sexual intercourse between an accepting man and woman” refers to rape in the UK if at least one partner is married to another person.

Interpreting aforementioned, it was pointed out that the definition of adultery in 1860 did not discriminate against a man or a woman by making the man responsible for the crime, in contrast with India’s archaic law and definition of adultery under the Indian Penal Code[3]. Both can be found guilty of the crime of adultery in United Kingdom. The courts in the UK believe that an Adultery Act might be classified as “unreasonable conduct,” but not in the eyes of the law. Adultery can certainly be used by both spouses as a ground for divorce.

The law also provides that, within six months of the date on which the cause of the action arose, a request for divorce for grounds of adultery has to be filed against the court, that being adultery to the other’s conscience. In view of recent developments in homosexual relations, the author considers the aforementioned definition of adultery to be archaic.

  1. Abha Singh, “Decriminalization of Adultery: A Setback to the Institution of marriage in India”, Outlook India (27 September 2018).

The author Abha Singh criticises Joseph Shine v. Union of India‘s Supreme Court judgement. The strongly believes that marriage is a sacrament and not a legal form of infidelity. The Author believes that the divorce rates in Indian is already rising and this decision, which only increases the rates of failed marriages by decriminalising adultery.

  1. Soutik Biswas, “Adultery no longer a criminal offence in India” BBC News, Delhi (27 September 2018)

The paper highlights Joseph Shine v. Union of India[4], the Indian judgement. The article summarises the judgement briefly and discusses the reasons behind the archaic law. The article also incorporates criticism of the new law by lawyers and politicians. The author then covers countries where adultery is a criminal offence.

In mentioned Islamic States adultery is considered to be a crime, as per author:

  1. Somalia
  2. Pakistan
  3. Saudi Arabia
  4. Afghanistan
  5. Iran
  6. Bangladesh

The author then narrates about Taiwanese. Adultery legislation in Indonesia and Korea. At first, Indonesia codifies rules that forbid even consensual sex without marriage. The Author concludes by saying that in Sixty-one countries adultery has been decriminalised, and the archaic concept must also be abolished. But the author thinks that the reason for divorce is that adultery can be justified.

  1. Justice K.T. Thomas and Advocate M.A. Thomas, “The Indian Penal Code”, Ratanlal & Dhirajlal, Volume II (33rd Edition, 2017)

Ratanlal & Dhirajlal’s 33rd edition is an Indian Penal Code textbook commentary. The book helps the researcher assemble knowledge regarding the various judgments of the Supreme Court and High Court where the constitutionality of Article 497 of the Indian Penal Code was at issue. The report outlines the decision of Yusuf Abdul Aziz vs. State Bombay[5] in detail, in which the conclusion was that the Constitution is not ultra vires by Section 497 of the IPC, because of the woman’s exception. This section does not infringe Articles 14 and 15 of the Indian Constitution.

This textbook then addresses the Soumithri Vishnu vs. Union of India[6] decision where, while rejecting the petition challenging the provision in accordance with Section 497 of the Penal Code, the Supreme Courts affirmed its earlier view. It has been held that Section 497 does not discriminate irrationally / classify between women and men, and therefore it is not unconstitutional.

II. Section 497, Indian Penal Code: The Archaic Law

The cognition of the adultery offence committed against a married woman and the male offender was punished. Thereby, under the Indian Penal Code, adultery was an infringement committed by a third party against a husband in reference of his wife. It was not committed by a married man who had consensual sex with an unmarried woman, or with a widow, or even with a married woman whose husband consented to it. It was not essential for the adulterer to know whose wife the woman is, provided that she was a married woman[7].

(A) Prerequisite of Constituting the Crime of Adultery

  1. Sexual Intercourse:

A man who has sexual intercourse with a married woman is an important component of the crime. So in the event that the woman went to the accused’s shop to have sexual intercourse, but was instantly pursued and trapped, it was held that her act did not go further than the stage of planning, and therefore this segment was not attracted[8]. Likewise, in a case where the accused had been provided with a married woman to spend the night, and before the accused could have sexual intercourse with the woman, the husband interfered and took her away, the accused was found not guilty under this clause[9].

While proof of sexual activity is necessary for the offence of adultery, it can rarely be proven by direct evidence. The narrative of seeing adultery through a keyhole is only an imagined one, and it can not be believed[10]. It must be determined from the facts and relevant circumstances. That being said, the circumstances must be of such a sort that they reasonably conclude that sexual activity has taken place.[11] Evidence of the opportunities pursued and gained and of excessive familiarity, which is a clear indicator of the presumption of guilt, is sufficient to determine the reality of sexual intercourse.[12]

For the determination of sexual activity, account must be taken of the entire history and context of the situation. Where the parties involved are sophisticated, no inference can be made on the mere basis of sexual activity opportunities. The inference of adultery should not be drawn by rash and vituperative decisions and conclusions equally worthy of two interpretations.[13]

  1. Married Woman:

The segment demonstrates a sexual relationship between a male and a female woman if someone else is a wife. There must be strict proof of the existence of lawful marriage. There is also no adultery of the sexual intercourse between a prostitute, an unmarried woman, or a widow in the Indian Penal Code. In one scenario, even sex with a woman who has lived without a marriage to another man who has children is no adultery because she does not have “another’s wife.”[14]

  1. Knowledge:

In order to fall under the ambit of this clause, a man should not only have a relationship with a married woman, but must also “know” or have a “reason to believe” that such a woman is the “wife of another man.” This did not indicate that he was expected to know the identification of the husband. It is enough if he knows or has reason to believe that the woman is married. Such a ‘reason to believe’ may arise from the fact that, in the case of a Hindu woman, the external insignia of married life is shown by the wearing of mangalsutra, the application of kumkum in the parting of the hair, the use of bracelets, toe rings, etc.

The prosecutor should determine the existence or fair belief of such information. It is men’s rea and the prosecution should put ample evidence before the court to show that the accused had the knowledge or fair belief that the woman was married.

(B) Connivance and Consent: Judicial Interpretation of the Word “Connivance”

The word Connivance in Section 497 of the Indian Criminal Code implies a willingness to consent to a conjugal crime or a guilty acquiesce in conduct that is reasonably likely to result in a crime being committed.[15]

Connivance is an act of thought, an act of understanding and acquiescence. As a legal theory, connivance has its roots and its limits in the concept of volenti non fit injuria, a willing mind, that is all that is required.[16]

Connivance is a figurative term that means a voluntary indifference to any act or conduct that is taking place, to something that is going on before the eyes, or to something that is perceived to be going on without any complaint or intention to interrupt or interfere with it[17]. The court did not draw a connivance conclusion from the fact that the woman had been abandoned by her husband.[18] Consent and connivance must be formed and not simply pleaded since the complaint is not regarded as a complainant.[19]

(C) Adultery Should Not Constitute Rape

The very nature of the crime of adultery implies that the consenting adults have sexual intercourse. The woman must be a voluntary partner for sexual relations, even if she is married. If the accused, however, has sex without the woman’s consent, this is a much more serious offence and would be rape. In this case, the husband is immaterial in consent or connivance. Woman’s consent is paramount. If their consent is missing, it will amount to a violation punishable by the Indian Penal Code, Section 376.

(D) Wife to be not Treated as an Abettor

Only a man can be prosecuted and punished for adultery, is apparent from the clear reading of the Section. In fact, the section states explicitly that even as an abettor the wife can not be punished. This provision therefore prevents the wife from being charged with adultery and her crime cannot be prosecuted.[20]

(E) Intention of Legislature behind not Treating Women as Abettors

The contemplation of the law is that the wife is a victim and not the perpetrator of the crime, who has an illicit relationship with another man. It is not possible to charge a woman and prosecute her for committing adultery. She’s totally immune to being charged with adultery. Such an exception tends to be based on a collection of women’s facts and prejudices, on women’s sexuality, and on the relationships between women and men resulting from the conventional gender skewed approach to the marriage institution in India, and on the unequal status of ‘husband and’ wife.’

The writers of the Code were inspired by the rampant child marriages and polygamous marriages that were then prevalent, and the husband’s right to fill his zenana with women, and thus have his wife seek his attention with many rivals; not to punish the wives’ infidelity.[21] Other popular conclusions regarding women, it seems, that women are exempted from liability are:

  1. A man is a seducer, and his married wife is merely his unfortunate and passive victim, and
  2. He infringes on the marital property of the man, i.e., by forming a sexual liaison with the married woman with her permission, but without her husband’s consent or connivance.
  3. It seems that the philosophy of the legislative provision promotes goodwill between

husband and wife and helps them to ‘make up’ instead of taking each other to court.

III. Judicial Progress Leading to the Repulsion of Section 497, IPC

  • Sowmithri Vishnu Vs. Union of India[22]

The husband in this case filed a divorce on adultery and desertion grounds. The husband also lodged a complaint against a Dharma Ebenezer during the pending divorce petition against the wife. 497 of the Indian Penal Code accusing him of adultery for his wife. The wife subsequently submitted a written request for quashing for the following reasons:

(1) Article 14 of the Constitution is in violation of Section 497 of the Penal Code as it unjustifiably denies women the right granted to men by making an irrational classification between men and women. This argument is based on three reasons:

(i) The husband shall have the right to prosecute the adulterer in accordance with Section 497; however, he shall have no right to prosecute the wife with whom her husband has committed adult.

(ii) section 497 does not give a wife any right to prosecute an adulterated husband with a different woman;

(iii) In those cases where a husband is in relationship with an unmarried woman, Section  497 does not include husbands having the freedom to have an extra-marital relationship with unmarried women, as it were, under the Act; and

(2) That the right to life requires the right to reputation, and therefore, if the result of a trial is likely to adversely affect the reputation of an individual, he or she may have the right to appear and be heard in that trial, and because Section 497 does not include a requirement that he or she must be involved as a necessary party to the prosecution or that he or she would have the right to be heard, that section is not good enough.

In upholding the constitutional validity of Section 479, the Supreme Court held that Section 497 did not provide for the prosecution of the wife for adultery by the husband. Indeed, the section provides that a woman shall not be punished even as an abettor. There can then be no complaint that the section does not allow the wife to prosecute the husband for adultery.

In the judgement referred to above, the Supreme Court held that it was clear from the contemplation of the law that a woman engaged in an intimate relationship with another man was a victim and not the perpetrator of the crime. The crime of adultery, as specified in Section 497, is deemed by the Legislature to be a crime against the sanctity of a matrimonial home, an act committed by a man, as is usually the case.

Therefore, all men who defile the sanctity are brought into the net of the statute. The law does not confer freedom on husbands to be licentious by gallivating with unmarried women. It only allows a crime for a particular form of extramarital relationship, the relationship between a man and a married woman, the man alone being the perpetrator.

An unfaithful husband risks, or even calls for a civil separation action by his wife. The legislature is obligated to deal with evil where it is most felt and seen. A man who seduces another’s wife: dealing with the defence argument that women, both married and unmarried, have modified their lifestyle over the years, and there are cases in which the peace and happiness of other marital homes have been ruined, the Court further noted: ‘We hope that this is not too right, but an inclusive concept is not inherently discriminatory. The alleged transformation of a feminine mindset, for good or ill, could justifiably engage the attention of lawmakers when the reform of criminal law is undertaken. They can expand the concept of ‘adultery’ in order to keep pace with moving times. But before then the rule has to remain as it is. The rule, as it stands, does not offend either Article 14 or Article 15 of the Constitution.’

However, except for Mohammadans, no group can now practise polygamy. Nor is child marriage legal, but, as a matter of fact, Hindu women are still socially discriminated against in a male-dominated society by the slightest whisper of their character, and both polygamous marriages and child marriages are still taking place in outlying rural areas either because of lawlessness or because of long-standing social practises.

It is felt that there is a great deal of weight in the Supreme Court ‘s observation that the shift in the lifestyle of a woman might not be too right, and that the woman who is seduced is really the victim and not the perpetrator of the crime. In this sense, maybe the time is not yet ripe to punish women for adultery.

  • Revathi v. Union of India[23]

In this case, the wife challenged the constitutional property of Section 198(2), read in Section 198(1) of the CrPC, which, as mentioned above, allowed the husband of the adulteress to prosecute the adulterer, but does not permit the wife of the adulterer to prosecute her promiscuous husband. Possibly realising that the section also does not authorise the husband of the adulteress wife to prosecute her for her infidelity and remembering the ratio of the case of Sowmithri Vishnu, she argued that whether or not the law requires the husband to prosecute his disloyal wife, the wife can not be legally disabled from prosecuting her unfaithful husband.

Such a legislative clause, founded on gender discrimination in contravention of the equality guaranteed by the Constitution, is, as the petitioner ‘s wife claimed, unconstitutional in that it amounts to “obnoxious discrimination”.

Thus, from the point of view of the statute, the topic of vires of Section 497 I.P.C. is referred to in Section 497 1.P.C. It is structured in such a manner that the husband can not sue the wife for defiling the sanctity of the matrimonial relationship by committing adultery, and thus the law does not enable the husband of the offending wife to sue his wife, nor does the law enable the wife to prosecute the offending husband for being disloyal to her again being brought before the Supreme Court, and section 497 I.P.C. has been advised to be discriminatory.

The Supreme Court did not consent to this. In reply to the dispute, the Court held that Section 497 I.P.C. and Section 198(1) read in accordance with Section 198(2) of the CrPC, go hand in hand and constitute a statutory package to deal with the offence committed by an outsider of the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.

The community punishes the ‘outsider’ who breaks into the matrimonial home and gives rise to a breach of the sanctity of the matrimonial bond by forming an illicit relationship with one of the rider’s spouses that the erring ‘man’ alone can be punished, not the erring woman.

It doesn’t arm the two partners to assault each other with a tool of criminal law. That’s why neither the husband can sue the wife and send her to gaol, nor can the wife sue the husband and send him to prison. There is no prejudice on grounds of sex. Although the outsider who violates the sanctity of the matrimonial home is punished, the rider has added that if the outsider is a woman, she is not punished. Thus, there is a reversal of discrimination in the ‘favor’ of a woman rather than ‘against’ her.

In the case of each other, the statute does not allow for the imprisonment of either of the partners. There is also no prejudice against a woman in so far as she is not allowed to sue her husband. The husband is not allowed and the wife is not viewed as a criminal in the eye of the law. The wife is not allowed, as the provisions of Section 198(1) read in Section 198(2) do not allow her to do so.

In the final analysis, the legislation gave fair justice to both of them in the matter of punishing each other or ensuring the imprisonment of each other. Thus, no circumscription has been exercised in circumscribing the scope of Section 198(2) and making it so that the right to sue the adulterer is limited to the husband of the adulteress, but not extended to the wife of the adultererer. Consequently, Section 198(2) is not subject to the accusation of hostile discrimination against a woman.

  • Joseph Shine v. Union Of India[24]

In December 2017, Joseph Shine lodged a petition questioning the validity of Section 497. The three- magistrate, led by then-Chief Justice of India, Dipak Misra, referred the petition to the five- magistrate Constitution Bench, accepting that the rule seems to be obsolete.

The petitioners wished to discuss some of the issues with Section 497:

  1. The rule of adultery is made gender neutral. This is because the statute demands that a man be prosecuted in the event of adultery, but no action is proposed for a woman.
  2. Pursuant to Section 497, a woman can not file a lawsuit against her husband for adultery because there is no such legal provision.
  3. Women are viewed as an object under adultery law since, under section 497, if the husband accepts, the act is not a crime.

When hearing the matter earlier, the court acknowledged that the law appeared to be focused on some “societal presumptions.” In four distinct but concurrent decisions, the court reversed the rule and ruled that the husband could not be the master of his wife. The five-judgment panel consisted of Chief Justice Dipak Misra and Judges R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra.

The decision dealt with the following things :

  • Section 497 is Archaic and is Legally Void as it is Violative of India Constitution Articles 14 , 15 & 21

Section 497 depletes a woman of her autonomy, her dignity and her privacy. It compounds the violation of her right to life and personal liberty by embracing a definition of marriage that contradicts true equality. Equality is subverted by lending penalties under the Criminal Code to a gender-based strategy to the relation between a man and a woman. Sexual autonomy is a principle that is an integral component and falls within the framework of personal liberty as laid down in Article 21 of the Constitution of India. It is very important, along with other things, to consider and consider the aspirations of one’s relationship. One of these requirements is that both of them would have the same element of companionship and appreciation for choice. Gratitude for sexual autonomy is created only if the two partners treat each other with equality and justice.

This section is a rejection of fundamental equality in that it promotes the idea that women are unfair partners in marriage; unable to freely agree to a sexual act in a legal order that considers them to be the sexual property of their partner.

This is in violation of Article 14. It is based on gender roles and infringes the non-discrimination clause in Article 15. Moreover, the initial focus on the aspect of connivance or approval of the husband is analogous to the subordination of women. It is also directly opposed to Article 21 of the Constitution.

  • Section 497 to no Longer be a Criminal Offence

Crime is something that is committed to society overall, while adultery is more of a personal matter. Treating adultery as an offence would be tantamount to a state breaching a real private domain. Adultery would not fit into the definition of crime, since it would otherwise conflict with the extreme privacy of marriage. However, it appears to be a legal wrong and a reason for divorce. What happens after adultery has been committed should be left to the husband and wife to determine as it is something that should only require their personal discretion. It is difficult for the court to interpret the various situations that have brought them to this point. Declaring adultery as a crime would, thus, somehow bring inequality to the framework.

  • Husband Is not the Master of his Wife

The decision depends on the assumption that, for that matter, women can no longer be treated as property of their husbands or fathers. They have an equal status in society and every opportunity should be given to put forward their position.

  • Section 497 is Arbitrary

The entire judgement indicated that Section 497 is arbitrary in its nature. It does not maintain the ‘sanctity of marriage,’ for the one part, because a man can grant permission to allow his wife to have a relationship with another person. Rather, the judgement points out that the “property rights” that a husband has over his wife are preserved. Furthermore, his or her husband or his lover can not lodge a complaint. A married man who has an affair with an unmarried woman, or with the widow, does not have provisions.

  • Judgement Analysis

Direct and Indirect Discrimination: First and foremost, the adultery law only punishes men for the adultery commission and penalises only one of them.[25]

Secondly, in contrast to unmarried women, the provision criminalises sexual intercourse with married women alone. Thus, Section 497 of the IPC would simply not be drawn to the husband involved in a sexual affair against an unweded woman.

Thirdly, once the married man gives his consent to a specific sexual act, it is no longer an adultery offence.

The petitioner’s argument on the basis of Articles 14 and 15 was dual. The first is that the law seems to be arbitrary, intuitively vulnerable for constitutional scrutiny, punishing men by itself and excluding women. While admittedly only two persons can commit adultery, one is penalised and the other exempt from any criminal liability. This is an unambiguous direct discrimination.

Notably, although the main reason for attack, the judgement has little to offer with regard to direct discrimination against men. Nariman J’s competing opinion. Emphasizes the provision’s “manifest arbitrariness,” a principle extended in Shayara Bano v. India.[26] However, the diverse views do not provide an exhaustive assessment of how the provision is subject to a conventional case of discrimination.

Secondly, in two distinct ways the law discriminates against women. One of the reasons for this is that a married man has deprived them of sexual autonomy. A married man, for instance, can have uninhibited sex with unmarried females. In parallel, an outer sex affair by virtue of the adultery law is prohibited to a married woman. The law is a ‘prior restraint’ for her lover, whose consequences are seriously criminal. This is the same even if the parties have not acquired a divorce from de facto broke marriages. It was a severe irregularity which, excluding Chandrachud J, was not dealt with by considerable appeal.

At the centre of all four separate opinions is the other mode of discrimination. This disparity is less direct and more interpretative. It is assumed that the wife is the ‘property’ of the husband who is her exclusive and exclusive owner that the idea that a law penalises the third party to marriage when the married woman committed adultery. The intruder is therefore punished similarly to the intruder.

In addition to this interpretation, Section 198(2) of the Code of Criminal Procedure states that anyone who is ‘woman’s care’ must have a locus to initiate a claim. In real sense, the famous and media narratives about Joseph Shine were focused on this interpretation.

This distinct kind of discrimination differs fundamentally from conventional anti-discrimination law approaches. For instance, the contested legislation in Anuj Garg v. Hotel Association in India[27] prohibits women (and men below the age of one) from working in the premises of public consumption of alcohol and drugs. In this case, women have been required to avoid intoxication as a sexual stereotypical image. But it was not only this stereotype that worked against women, but also the ardent rejection of equal opportunities for women who together constituted two-fold discrimination.

Joseph Shine’s significance is that he essentially believes that this second limb is often imperative to attack a stereotypical law. It shows that the law is likely to be discriminatory simply because of societal stereotypes that do not fit in with the Constitution – an approach that could fundamentally modify the structure of the anti-discrimination law in India.

By this proposal, Joseph Shine shows what the expressive function of the law demands. The idea is that legislation is not only a regulatory or deterrent instrument, but also a means of expression. So what the text of the law says is important. Section 497 has apparently failed to properly observe this role and, although it took more than 65 years, this failure must eventually have been recognised by the Constitutional Court.

On the one hand, mere harm is not enough; harm must indeed mean ‘judicially’ or ‘legally recognisable harm.’ By the way, one of the aspects frequently overlooked about Gobind vs. the State of M.P[28]. is that, in the context of privacy, the Court referred in particular to the harm principle. The conference took place:

“There are two possible home privacy theories. Firstly, the activity of the home is only harming to others in the sense that it is only because of the idea that people are able to do so, and that such ‘damage’ is not constitutionally state-protective.”

There is indeed no reason why the State should interfere with it when adultery does not cause a legally or legally cognizable harm. CJI, in his view, said that ‘adultery is not in line with the notion of a crime’[29] and that it would be ‘retrograde’[30] to think of it. However, the main judgement and the two confronting opinions do not discuss in detail what reasons the State can legally support for criminalization except to reiterate certain definitions of ‘crime.’

Justice Malhotra ‘s concurrent opinion is a welcome exception. He observed that to make something criminal it must be a public mistake, which would reiterate Mill ‘s principle of harm. She also pointed out that the State needs to take the minimalist approach of criminalising crimes.

IV. Critical analysis

Yet another obvious argument of the petitioner was how the contested provisions violated Article 21’s fundamental right to privacy by impeding the right to voluntary, consensus-based sexual relations among adults. This submission was submitted in three steps :

Firstly, the Constitution ensures privacy.

Secondly, the right to privacy inherently includes the right to sexual independence. In matters of family and marriage[31], the right to privacy is understood as free personal choice, the choice whether or not to use contraceptives[32], and acceptance that various people make different choices.[33]

The third step, the key point in the argument is that there is no good reason for distinguishing between sex outside or inside marriage and between sex based on both individuals’ or marital status. Whatever the State thinks abominable is sexual behaviour outside marriage, this isn’t a reason for crime or for the “common state interest” to be constituted. The right to sexual behaviour outside marriage is protected by the ‘rights to privacy and privacy.[34]

It was asserted categorically that, although one person is lawfully married, the right to sexual liberties necessarily involves the right to choose a sexual partner. Penalizing adultery violates the right of the sexual partner or the right to choose the sexual partner. Accordingly, section 497 breaches the basic right of sexual privacy. Hence the State can not criminalise this behaviour, if it has been persuaded that there is a right to privacy, except by demonstrating allowable grounds for breach of an essential right. It is completely unconstitutional to penalise an action , especially when it violates freedom.

The Court, however, failed to address the privacy concerns adequately. CJI Misra’s and Khanwilkar J’s judgement. Did he argue “this immense intrusion into the extreme privacy of marital affairs would occur if (adultery) is treated as a crime[35]”. However, there appears to be a lack of an essential connexion between fundamental rights to privacy and crime. Most judgements and competing decisions, except for Chandrachud J. Are visibly reluctant to stress the basic right to consensual sex outside of marriage. However, the restriction on the government to criminalise behaviour can be explained by no other principle.

In terms of individual autonomy, the Constitutional Court in India developed enhanced jurisprudence. Under Article 21, the right to independence was consistently held to be an inalienable part of the right to life. The Supreme Court in Navtej Singh Johar[36] recognised that our Constitution protects sexual autonomy. Notably enough, some of Joseph Shine’s references[37] to privacy relate to the right to dignity, a right that is quite different from an independent right to sexual autonomy and choice.

Therefore, even when the majority of the judgement was elaborate on the right to dignity, the infringement of the right to sexual autonomy was not explored as part of the right to dignity. Consequently, Navtej’s Singh Johar and a well-conceived foreign jurisprudence could have developed a sophisticated theory about sexual privacy. This failure to explore the right to privacy in detail remains a deadly shortcoming in the judgement.

Different methods are adopted in different jurisdictions for testing criminal law constitutionality. This test is instructive in the context of the Constitutional Court of South Korea. When adultery criminal law was challenged as a breach of the constitutional rights to privacy and self-determination, the Court examined successfully the Statute challenged in relation to adequacy, efficiency and the secondary effects of penal law The nature and excess of the criminal punishment were also considered. The Court has developed questions on how the State can enter into an individual’s private realm, the external limit of the right to privacy and the allowability of State intrusion. The adverse effects of the penalty were also considered on matrimonial homes. Joseph Shine does not have such a systematic evaluation.

  • RETROSPECTIVE EFFECT GIVEN TO Joseph Shine v. Union of India

In a certain case[38] in the High Court of the Republic of Bombay, a Single Judge Bench allowed the review petition and rejected the convictions of the appellant pursuant to Article 497 of the IPC, in view of Joseph Shine v. Union of India’s Superior Court decision.

It was reported that the applicant had sex with the plaintiff’s wife. In accordance with Section 497 IPC, he was tried and convicted by the Court for committing adultery offence. He rejected his appeal before the Judge of the Additional Session. The present request for revision was therefore submitted. It was requested that the present request should be allowed in view of the decision of Joseph Shine in which the Supreme Court had found Section 497 to be unconstitutional.

The High Court has relied on A.S. Gauraya vs. S.N. Thakur[39], in which it was held that the law declared by the Supreme Court also applies to proceedings pending with a retrospective effect. The Court therefore gave retrospective effect to the law set out in Joseph Shine in the proceedings before it. Accordingly, in the light of Joseph Shine, the conviction and punishment of the applicant under Section 497 were  set aside.

V. Comparative study

(A) United States of America

The laws against adultery in the United States have strong puritan origins, originating from the ecclesiastical courts of England prior to the foundation of the republic. Since the colonial period, adultery in the United States has been seen as an offence against morality and chastity, with civil and criminal implications. In fact, the puritan colonialists in New England were so concerned with the rampant “moral corruption” of England that they made adultery with a married woman a capital offence. Most early state jurisdictions have followed suit by criminalising adultery, but not always as a capital offence. The prosecution of adulterers decreased dramatically after the eighteenth and nineteenth centuries; the laws were largely unenforced, and the disclosure of an adulterous affair was sometimes used as a means of blackmail, which led the American Law Institute to propose the decriminalisation of adultery across the board in 1962.[40]

The moral opposition to adultery, however, was lived in the statute. Many states not only upheld their criminal sanctions against adultery, but also instituted civil penalties for the act. For example, since a woman was regarded the property of her husband, adultery was a civil injury to an innocent husband: having a sexual relationship with another man’s wife was a trespass on his property, notwithstanding the fact that the act was coerced or consensual, as it was believed that “decent people” would never agree to sexual impurity. Additionally, the common law dealt with “trying to foist spurious offspring on her unsuspecting husband” and the effects this would have on succession and property rights, outlining how adultery put men at threat of raising and paying for a child not his own.

Therefore, in the twentieth century, legal remedies became open to husbands to resolve these problems: charges of trespass, torts of indignation, and exclusion from love and criminal conversation offered husbands the ability to obtain punitive damages from the paramour of his wife. “As time passed, courts steered away from seeing their wives as valid grounds of recourse for sexual purity and the rights of spouses, so over forty states instituted statutory bars against these” amatory charges “(commonly known as Heart Balm Acts) against the paramour of a spouse.

Nevertheless, in the US legal framework, the contemplation of adultery as an insult to a partner is always important. Some states, such as North Carolina, also allow the adultery of a partner to be resolved through amatory charges or charges of negligent or deliberate infliction of emotional distress, in which the adulterous partner may still be held responsible for damages. Instead of being a way to protect the chastity of women, the laws are now defended as a “device to maintain marital harmony.”

The courts have consistently recognised the emotional trauma sustained from adultery, including in states that disallow such arguments. Therefore, punishments for adulterous partners is a “victim-oriented tactic” to remedy these accidents. While in each jurisdiction, the concept of adultery differs slightly, it is a basis for divorce in thirty of the thirty-two states that continue to accept a scheme based on blame.

Due to the essence of marital dependence in the United States, the possible consequences of an adultery-related fault divorce (or even a showing that one’s partner was unfaithful in a no-fault divorce) were and continue to be overwhelmingly negative towards the adulterous partner, and even more towards an adulterous wife. First, adultery can affect spousal support (alimony), depending on the jurisdiction. Adultery is a full bar to alimony in four states, and some states use adultery as a factor in deciding how much alimony a spouse may award. The division of marital property[41] can also be influenced by adultery. Thus, if the adulterous spouse is the under-earner, an aggrieved spouse could gain the benefit of restricting support for the adulterous spouse. This fault bar approach economically disadvantages women in divorce proceedings as women are more likely to be dependent partners or in need of assistance after divorce. Second, the adultery of a wife was traditionally used in child custody proceedings as evidence of parental unfitness: if the life of a mother were “occupied by the flesh’s carnal impulses,” it will affect the life and character of the child.

As a criminal clause[42], twenty states continue to keep adultery on the books with fines ranging from a ten-dollar fine to felony charges, but adultery in the United States is rarely tried. Nevertheless, the de facto absence of criminal enforcement by the United States does not mean moral or cultural tolerance of adultery.

Thus, the continued regulation of adultery serves mainly as “moral legislation” and is aimed, although ineffectively, at deterring immoral conduct. States and advocates justify the continued prohibition of adultery by shielding innocent partners from damage and by protecting the public institution of marriage. Adultery is also believed to affect the structure of society and to penalise these behavioural efforts to discourage such degradation from taking place. This moral rejection, combined with the explicitly patriarchal legal past mentioned above, causes ongoing prejudice against adulterous women and mistresses in American society.

(B) South Africa

“In the seventeenth century, South African law followed the Roman-Dutch common-law principles: adultery was a crime and could result in the husband’s claim for criminal damages, but not the wife.[43]” “The husband lost his claim for damages (and divorce) where he condoned her adulterous actions, where there was connivance between the spouses, or where he committed adultery himself.”

“Adultery was a divorce ground, but in previous years it was unclear if a divorce was a condition for the husband’s claim for damages, as the case could be brought either with the divorce or in a separate simultaneous action.” “It was unclear if South African law became part of the Roman Dutch rule that adulterers were not permitted to marry each other.”

The divorce system was at the time faulty and divorce could result in financial sanctions for a marrying adulterant spouse at the time of the divorce, in accordance with the principle that “a spouse should not benefit financially from a marriage” “Any adultery was also significant to

the South African divorce legislation because it was just one of three reasons for divorce[44].”

“The above shows that the legal regulations on adultery in the state of South Africa have undergone significant changes.” Adultery is no longer a crime, and gender neutrality was more than sixty years ago compared with divorce and criminal damages claims.

(C) Pakistan and Other Countries of Islam

Adultery in Pakistan is regarded as an outrageous crime, with both men and women being punished for the death penalty. In 1987 a Pakistani court convicted a couple of them of having committed adultery to be buried and stoned to death publicly. In 2002, in North West Frontier province a woman who committed adultery was sentenced to death for stoning.

Maybe such a severe adultery sentence is given in Pakistan since it was introduced in 1980, the Islamic Penal Law (Huddod Ordinance). Adultery is severely punishable in certain other Islamic countries, including Saudi Arabia, Iran, Egypt, etc.

VI. Conclusion

Section 497 of the American Criminal Code, which defined and punished adultery, includes criminal law concerning adultery in India: Whoever has sexual relations with a person, whoever knows and has reason to believe that he or she is another man’s wife, without the consent or connivance of that person is guilty of a crime involving an adult and who has sexual intercourse not the offence of rape. In such a case, the wife shall not be punished as an abettor. Before the aforementioned landmark ruling, the clause under the IPC was so framed that a husband could not prosecute the wife by committing adultery with another man for violating the sanctity of the marital home, but he could prosecute the other man with whom his wife committed the crime. Thus, the law did not allow the offending woman’s husband to prosecute his wife, nor did the law allow the wife to prosecute the offending husband for being disloyal to her. In addition, a woman whose husband committed adultery with another woman was not remedied by the law, which is also a violation of the gender neutrality clause set out in the Indian Constitution. The law has been questioned on several occasions, but it remains unchanged.

Yusuf Abdul Aziz vs. State of Bombay[45] was the very first landmark judgement concerning the constitutional validity of the rule of adultery. In this respect, the ultra vires of Article 14 and 15 of the Indian Constitution is questioned in Section 497. The Apex Court held that Article 14 is a general provision and should be read as an exception to fundamental rights in accordance with other provisions laid down. It was held that a clause under the IPC was confirmed by the applicable provisions read together.

Only men were considered criminals by the archaic legislation on the basis that women were mentally or socially unable to commit such an offence. The two sexes were not on equal terms with each other. Thus the, this form of clause was unfair and was arbitrarily used to shield women.

Article 15(3) of the Constitution grants Parliament the right to make special laws for women, but it is not mentioned in the clause that such laws must be automatically biassed against men. It can not be inferred either since the whole object of the equality clause under the Constitution would be rebutted if it had been so. Therefore, under the Indian Constitution, the amendment is nothing but a violation of the equality clause.

The 42nd Law Commission Report and the Malimath Committee Report of 2003 recommended changes to the law, but the law remained unchanged until 2018, when the Supreme Court struck down the archaic clause in the landmark case of Joseph Shine v. Union of India and found it discriminatory. Joseph Shine will remain unquestionably influential in the evolving jurisprudence of liberty. It argues that the State should not enforce on individuals moralistic conceptions of right and wrong. It obviously bifurcates mainstream subjective morality from constitutional morality.

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VII. References

Books Referred:

  • D. Gaur, Commentary on Indian Penal Code, Second Edition, Universal Law Publishing Co.
  • Ratanlal & Dhirajlal, Justice K.T. Thomas and Advocate M.A. Thomas, Vol II. The Indian Penal Code, 33rd Edition
  • SC Sarkar, Indian Penal Code, 2014, Dwivedi Law Agency Allahabad

Articles Referred:

  • Alyssa Miller, “Punishing Passion: A Comparative Analysis of Adultery Laws in the United States of America and Taiwan and their Effects on Women Alyssa Miller”, Fordham International Law Journal Volume 41, Issue 2 Article 4, pg 425-470
  • Anna Duff, “What is adultery, is it the same as cheating, is it illegal in the UK and is it grounds for divorce?,” The Sun (18th September 2018)
  • Soutik Biswas, “Adultery no longer a criminal offence in India” BBC News, Delhi (27 September 2018)
  • Devika, SCC “The online Blog: LAW MADE EASY,” SCC (February 21, 2019)
  • Abha Singh, “Decriminalization of Adultery: A Setback to the Institution of marriage in India”, Outlook India (27 September 2018)

Web Links :

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[1] Author is a student at Symbiosis Law School Noida, India.

[2] 2018 SCC OnLine SC 1676.

[3] Indian Penal Code, 1860, Act No. 45 of 1860 (India) Sec. 397

[4] Writ Petition (Criminal) No. 194 Of 2017

[5] 1954 Cr.Lj 886 (SC)

[6] AIR 1985 SC 1618

[7] Madhub Chunder Giri (1873) 21 WR (Cr) 13

[8] Hari Singh Gour, “Penal Law of India”, Law Publishers, Allahabad, volume 4, p 4656 (11th Edition, 1988)

[9] AIR Manual, vol 29, pg. 901 (4th Edition)

[10] Ramachandra v. Baburaj (2009) 4 KLT 744 (Ker).

[11] Wj Philips Vs. Emperor AIR 1935 Oudh 506

[12] Vedavalli v. MC Ramaswamy AIR 1964 Mys 280

[13] AS Puri v. KC Ahuja AIR 1970 Del 214, (1970) Cr LJ 1441 (Del)

[14] Brij Lal Bishnoi v. State (1996) Cr. Lj 4286 (Del)

[15] Strouds Judicial Dictionary, Vol 1, p. 580

[16] Boulting v. Boulting, (1864) 33 LJ (P M & A) 33

[17] Munir, (1925) 24 ALJR 155

[18] Pothi Gollari v. Ghanni Mandal, AIR 1963 (Ori) 60

[19] Bharatlal v. Top Singh (1995) Cr LJ 3545 (M.P.)

[20] Kalyani v. State, AIR 2012 SC 497

[21] Macaulay, Macleod, Anderson and Millett, “A penal Code prepared by Indian Law Commissioners”, Pelham Richardson, 1838, Note Q, p. 175

[22] 1985 CrLj 1302 (SC)

[23] AIR 1988 SC 835

[24] 2018 SCC OnLine SC 1676.

[25] The Indian Penal Code contains other provisions that penalise only men in respect of a particular offence, such as Section 498A, which only punishes husbands for cruelty. However, section 497 is different since sexual behaviour is admittedly engaged by two parties.

[26] (2017) 9 SCC 1

[27] (2008) 3 SCC 1

[28] (1975)2 SCC 148.

[29] Para 49 of Joseph Shine v. Union of India

[30] Para 55 of Joseph Shine v. Union of India

[31]Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

[32]Griswold v. Connecticut, 381 U. S. 479

[33]Bowers v. Hardwick, 478 U.S. 186 (1986)

[34]Janelle Perez v. City Of Roseville US Court of Appeals, No. 15-16430, 2018

[35] Para 49 of Joseph Shine v. Union of India

[36] Navtej Singh Johar v. Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016

[37] Paras. 25-41 of Joseph Shine v. Union of India

[38] Rupesh v. Charandas,2018 SCC Online Bom 6292

[39](1986) 2 SCC 709

[40] MODEL PENAL CODE §213.6(3) (AM. LAW INST., Proposed Official Draft 1962) (note on adultery and fornication)

[41] Halleman v. Halleman, 379 S.W.3d 443, 452 (Tex. App. 2012) (noting fault of the breakup of the marriageas a factor in determining division of marital assets); Smith v. Smith, 433 S.E.2d 196, 221 (1993) revd in part, 444 S.E.2d 420 (1994) (noting that marital misconduct that dissipates or reduces the value of marital assets for non-marital purposes can be considered when dividing marital property)

[42] Alabama, Arizona, Florida , Georgia, Idaho, Illinois, Kansas, Maryland, Massachusetts, Michigan, Mississippi, Minnesota, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah, Virginia and Wisconsin are among the counties. The crime is typically defined as a sexual relationship between a married person and a third party who is not his or her spouse.

[43] Farmer v Farmer (1850-1852) 1 Searle 227

[44] Section 4(2)(b) of the Divorce Act

[45] 1954 AIR 321,1954 SCR 930.

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You may also like to read Understanding Adultery in a Post S. 377 World: A Socio-Legal Approach.