Supreme Court: Adultery is not a Criminal Offence in India

The constitutional validity of Section 497 of the Indian Penal Code, 1860 (IPC) which criminalized adultery was challenged in the Supreme Court of India. The section punishes a man who has sexual intercourse with the wife of another man, without his consent. The offence was punishable with imprisonment of up to five years or a fine, or both.

The Court held that the said section was unconstitutional and struck it down entirely. The Court found the provisions to be arbitrary and violative of Article 14 (right to equality) since it did not apply equally to a married man who had intercourse with another woman; and it permitted adultery if the husband consented, which indicates that the provision treated the wife as property of the husband. The Court further found the provision to violate the right to dignity, privacy and sexual autonomy of a woman guaranteed to her under Article 21of the Constitution (right to life).

The Court further clarified that adultery may continue to be a ground for divorce.

What was the problem with the law?

Under section 497, to constitute the offence of adultery, the following must be established: –

• Sexual intercourse between a married woman and a man who is not her husband.
• The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man.
• Such sexual intercourse must take place with her consent, i.e., it must not amount to rape.
• Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

Only the husband of a woman with whom adultery was committed could have been treated as an aggrieved person and could file a complaint. However, in his absence, some other person who had the care of the woman on his behalf at the time when such offence was committed could also file a complaint on the husband’s behalf if the court allows.

There were no provisions for the wife to prosecute her husband for being involved in an adulterous relationship. The law did not recognize it as an offence where a married man was engaging in an act of sexual intercourse with a single woman.

Only the man committing adultery could be prosecuted for the act, and not the adulterous woman, even when the relationship is consensual. An adulterous woman is not even considered to be an abettor to the offence. Women were exempted from criminal liability altogether.

These provisions were clearly in violation of Article 15(1) of the Constitution (Prohibition discriminating on grounds of sex).

Deciphering ‘Joseph Shine v. Union of India’:

Sections 497 IPC and Section 198(2) CrPC dealt with the procedure for filing a complaint about the offence of adultery. The Supreme Court of India in the case of Joseph Shine v. Union of India struck down the provisions on the ground that they were violative of Articles 14, 15(1) and 21 of the Constitution, and are invalid.

The petitioner had argued that provisions criminalizing adultery discriminated against men by only holding them liable for extra-marital relationships while treating women like objects.

The bench lead by CJI Dipak Mishra announced that making adultery a criminal offence would be ‘irrational and unconstitutional’, as it interferes with the sexual autonomy of an individual, besides chastising the man alone for the offence. Moreover, during the sexual intercourse, there must have been the consent of both parties. Hence, there is no good reason to exclude one party from the liability. To do such in a progressive society would be anarchic. The Court further held:

• The provisions curtailed the essential dignity which a woman is entitled to have by creating discriminatory distinctions based on gender stereotypes and were therefore in violation of the dignity of woman and Article 21 (Right to life)
• The Court recognized sexual privacy as a right guaranteed under the Constitution.
• The court also noted that under the bigamy law both men and women are liable for prosecution, unlike the adultery law. Adultery law certainly doesn’t sustain gender neutrality since it is the sacred duty of both man and woman to protect the sanctity of marriage by not entering adulterous relationship.

Adultery as a Ground for Divorce:

Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove that she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her.

The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The Indian courts have, time and again, stressed that adultery has to be proven beyond a reasonable doubt. However, in recent years, the Supreme Court is seen to be deviating away from such notions stating that proving beyond a reasonable doubt is essential in criminal cases and not in civil cases.

Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage being solemnized after or before the commencement of this act.

Conclusion:

Time and again, the legitimacy of this law in India has been argued based on its alleged tendency to radiate a very clear sense of gender bias and also, being a criminal act even though the people involved in it are two mature adults. The National Commission of Women had criticized this law for being anti-feminist- objectifying women as someone’s property and not an individual. Moreover, it also recommended reducing the law as a mere civil offence from being a criminal act would be apt as marriage, itself is a civil contract and it should have civil consequences only.