Adultery: An offense- by Vedant Karia at LexCliq

 Adultery: An offense- by Vedant Karia at LexCliq

Adultery is derived from a French word, that has evolved from the Latin verb, “adulterium”, which means to corrupt. Adultery is defined as the consensual extramarital sexual relationship that is considered objectionable on social, religious, moral, and earlier on legal grounds as well.

Though adultery is decriminalized, it still exists as a delinquent act as it violates social norms which an individual is believed to be followed. 

For the last 158 years, it was treated as a crime but after the verdict of Hon’ble Supreme Court in Joseph Shine v. Union of India, adultery is decriminalized and remained merely a civil wrong rather criminal offense. There were two major contentions for the decriminalization of adultery. They were:-

This section provided husbands with the right to prosecute their wives’ adulterers while wives were deprived to complain against the adulteress of their husbands.

The section was ignorant on the matter of the adulterous act of the husband.

India is a country known for its unity in diversity. Our country is a secular country where the sentiments of all religions are equally respected. Every religion follows its views and objectives. However, in the matter of adultery more or less every religion is highly critical. Different religions have different views on adultery but the core view remains the same. In every religion, adultery is treated as a crime. However, the forms of punishment may vary among religions. It is treated as a delinquent act as it violates the religious sentiment of every religion. 

Since time immemorial it is considered to be a sin not only on the religious or legal ground but on the spiritual ground as well.

• Traditional Hindu views regarding adultery are that it creates disorder in the society and degradation of family values. In Hinduism, marriage is a sacrament, believed to be for seven consequent births, where both the spouses are supposed to be loyal to each other. They are believed not to have a sexual relationship other than their spouse.

• According to Islam, adultery, rape, and fornication which are unlawful are considered Zina. According to the Quran, Zina is huded a crime for what punishments are fixed by god. The punishments range from amputation of hands and crucifixion to public lashing to public stoning to death. In particular to adultery, according to Quran, an adulterous person should be stoned to death.

• According to the Bible, adultery is a sin deserving death for both men and women. Adultery is treated as unethical and immoral and evil for society.

• According to Buddhism, sexual intercourse outside wedlock is a sin that increases suffering. In Buddhism, adultery is the 3rd of the five fundamental precepts that one must refrain from.

• According to Judaism, which is one of the ancient religions, there is a provision of the death penalty for both adulterer and adulteress.  

In India, Section 497 of the Indian Penal code (IPC) 1860, defined adultery as:

“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 offense of rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor”.

In 2018 section 497 was struck down by Supreme Court in the case Joseph Shine v. Union of India unanimously by the constitutional bench of five judges comprising of Justice Deepak Mishra, Justice Ajay Manikaro Khanwilkar, Justice Rohinton Nariman, Justice D.Y.Chandrachud and Justice Indu Malhotra. It was also held that in that matter if any aggrieved spouse commits suicide, based on the evidence could be treated as an abetment to suicide attracting section 306 of the Indian Penal Code (IPC). However, though section 497 got decriminalized, it continued to be treated as a valid ground for divorce according to the pronouncement of then Chief Justice Deepak Mishra and justice A.M.Khanwilkar in the instant case.

In the instant case, the petitioner was Mr. Joseph Shine, a hotelier from Italy, though he was personally unaffected by the law. His petition was accepted in the view of the locus standi (right or capacity to bring an action or to appear in a court) in Public Interest Litigation (PIL) cases with the objective of welfare of the society and to bring justice in the society.

The petitioner argued that the law deprives women of the fundamental right to sexual autonomy. While the government, on the other hand, argued it as an essential element to maintain the sanctity of marriage, although also recognized section 497 as discriminatory against women and proposed to make the offense of adultery gender-neutral.

Supreme Court suggested that adultery could be a ground of divorce and carry civil penalties, but not a criminal offense.

According to the Hindu Marriage Act, 1955 Section 13(1), any voluntary sexual intercourse with a person who is not the spouse, is a ground for divorce. Section 10 of the Hindu Marriage Act, 1955 defines adultery as a ground for judicial separation.

Section 22 of the Indian Divorce Act made the provisions of judicial separation on the ground of adultery.

The Special Marriage Act, 1954, stated that if a person had voluntary sexual intercourse outside the wedlock, is a valid ground for divorce.

According to my, decriminalization of adultery is a constructive step towards a progressive society by striking down the law which deprived the dignity of women. It is deviant behavior as it is unethical and immoral as it violates the sanctity of the institution of marriage which is believed to be a sacred institution of society.

However, this is just halfway. Our country still has to cover a long way to eradicate discrimination and to ensure gender equality. I think that society should also rise from the patriarchal mindset.

To ensure the sanctity of marriage which according to me is a necessity in every aspect whether being religious, legal, or spiritual, everyone should be more careful and sensitive towards the institution of marriage and family system as it is the fundamental unit of society.

Vedant Karia