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RESEARCH ARTICLE ON LEGAL ANALYSIS OF ADULTERY LAWS IN CONTEMPORARY INDIA
Written by ANIKETAN S.
3rd Year BA LLB Student, School of law, Christ (Deemed to be University)
Abstract:
This Research paper deals with the legal aspect and analyse the regulation of adulterous behaviour of married persons under the different kind of legal systems and show that the supply of adultery is greatly influenced by the social values of “Sexual Morality,” which existed at the instant of formulating the legal provision. In India, Section 497 of IPC (Indian Penal Code) had been drafted during colonial period, which is almost 160 years old and, since from its outset, it has been turned into highly arguable, disputable, and debatable controversies on several issues, like its gender biased approach, cultural conflicts, equality clause, and powerful arguments are raised either to modify or complete delete from penal statutes. This paper has attempted to eloquently address these controversies in context of legal view in current India.
Further research paper attempts to convey and analyse the concept of adultery from its legal aspect or base, and looking at its effect, impact, and co-relation with other aspects like marital ties, property claims, divorce, re marriage etc. Also, Discusses the laws relating to adultery from the past to the latest amendments and critically analyse the realistic and viable decision passed by the Supreme Court of India with reference to adultery.
Key Words:
Adultery, Sexual Morality, IPC S.497, Marital ties, Property claims, Divorce, cultural conflicts, equality clause.
Introduction:
Adultery can defined as an ‘extramarital sex’[1] that’s considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, further because the social, religious, and legal consequences, adultery concept still exists in many cultures and is completely analogous in Christianity, Islam, and Judaism. One of the act of gender is usually sufficient to constitute adultery, and a more long-term relationship is typically named as an affair.
Historical Background:
Historically, many cultures considered adultery an awfully serious crime, some subject to severe punishment, usually for the girl and sometimes for the person, with penalties including execution, mutilation, or torture.[2] These punishments have eventually and gradually fallen into disfavour, especially in Western countries from the 19th century. In countries where adultery continues to be a criminal offense, punishments range from fines to caning and even execution. Since the 20th century, criminal laws against adultery became controversial, with most Western countries decriminalising adultery. However, even in jurisdictions that have decriminalised adultery, it’s going to still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery nearly always constitutes a ground for divorce and should be an element in settlement, the custody of youngsters, the denial of alimony, etc. Adultery isn’t a ground for divorce in jurisdictions which have adopted a no-fault divorce model.
International organizations have required the decriminalisation of adultery, especially within the light of several high-profile stoning cases that have occurred in some countries. the top of the global organization expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation, Kamala Chandrakirana, had stated that: “Adultery must not be classified as a criminal offence at all”.
A joint statement by the global organization social unit on discrimination against women in law and in practice states that: “Adultery as a criminal offence violates women’s human rights”.[3]
In Muslim countries that follow shariah law for criminal justice, the punishment for adultery could also be stoning.[4] There are fifteen countries within which stoning is allowed as lawful punishment, though in recent times it’s been legally distributed only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and a number of other Sub-Saharan African Christian-majority countries, but there are some notable exceptions to the current rule, namely Philippines, Taiwan, and a number of other U.S. states. In few jurisdictions, having a physical or sexual relations with the king’s wife or the wife’s eldest son results in treason.[5]
Some adultery laws differentiate supported the sex of the participants, and as a result such laws are often seen as discriminatory, and in some jurisdictions they need been struck down by courts, usually on the idea that they discriminated against women. The term adultery, instead of free love, implies an ethical condemnation of the act in and of itself it’s usually not a neutral term because it carries an implied judgment that the act is wrong.
Adultery refers to sexual relations which aren’t officially legitimized; for instance it doesn’t seek advice from having sexual activity with multiple partners within the case of polygamy.[6]
The Judicial Pronouncements on Validity of the Law with references to few Important case laws in India:
S.497 of the Indian Penal Code (IPC), 1860 states that:
“Whoever has sexual intercourse with any person who is and whom he knows or has a reason to believe to be the wife of another man, without the consent 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.”[7]
The validity of adultery law in India has been challenged a lot of times in the court, but the court has upheld its validity and also the ‘Classification’ made within it.
In the case of Yusuf Aziz v. State[8], the Court ruled that the immunity which is granted to women from being prosecuted under S.497 of the IPC was not discriminatory but valid under Article 15(3) of the Indian Constitution. Further it doesn’t affect articles 14 and 15 of the Constitution of India.
In case of Sowmithri Vishnu v. Union of India and Anr[9], the court in this case held that the contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is an victim and not the culprit of the crime.
In the case of V. Revathi v. Union of India and Ors[10], the court held that the S.497 of the IPC (Indian Penal Code) is so designed that the husband cannot prosecute wife for the defiling the sanctity of the matrimonial tie by committing adultery. Further, the governing law neither permits the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband after being disloyal to her. So, both the husband and the wife are disabled from striking each other with weapon of criminal law.
Status of laws in other countries with respect to Adultery:
Philippines:
Philippines is one in all the Asian countries where the practice of adultery and concubinage may be a crime. They are deemed as “crimes against celibacy” under the Penal code of the Philippines and are treated as sexual infidelity within the Family Code. Wife and her partner will be sentenced for up to 6 years in jail if the husband proves that she had a sexual activity with a person outside the wedding. On the other hand, husband can charged only when the wife proves that he had sexual activity under “scandalous circumstances” in the other place. The husband is also imprisoned for up to four years.
China:
In China, Adultery is not treated as crime, but it can be grounds for divorce, Article 46 of China’s marriage act has a provision to claim damages when an aggrieved party files a divorce petition on grounds of domestic violence or extra marital affairs.[11]
America:
In USA, about 19 countries regard Adultery as a criminal offence. Job termination, death penalty, demotions are the few punishment for the offence of Adultery.
Pakistan:
In Pakistan, adultery may be a crime under the Hudood Ordinance[12], promulgated in 1979. This controversial law mandated a girl making an accusation of rape to produce few male person eyewitnesses as good standing (tazkiyah-al-shuhood) to “The Act of Penetration” as evidence to avoid being charged with adultery.[13]
South Korea:
Adultery was decriminalized adultery in 2015, in its latest judgement, 7:2 majority judgement revoked the 1953 law which was grounds punishments for cheating spouses which was punished for up to 3 years jail.
Critics who favour Positive and Negative consequences of legalising Adultery:
In the year 1950-55 when the Hindu Code bills and The Dowry Prohibition Acts (1961) were passed, the most popular sentiment was that men are those who commit wrong and hence, there’s a desire to allow a special layer of protection for women’s condition as they were in an exceedingly vulnerable condition within the society at that point. But now women are literate, independent, conscious of their rights, and hence, there’s no need for such a law within the present scenario.
But, how the society perceives this and the ways of correcting this in an exceedingly sense of right and wrong should be outside the purview under this law. Within the eyes of law, it should just be two adults who had consensual gender. Further, there should be no confusion between personal laws and community laws, because when it involves legalising community laws they’re done so considering the moral fabric of the society and also the same isn’t true for private laws.
Legalising adultery will be considered something that’s influenced by the western countries or the civilisation, and here a vital point to be considered is that the divorce rate within the western countries is about 52% and still increasing. So, in Countries like India which has a very different cultures so as to prevent following the identical fashion it’s very essential to not encourage the “extra-marital affairs” which might tend to increase if adultery is decriminalised.
In order maintain a smooth functioning of the society, there are few things which are very much necessary and marriage is one among them. It’s greatly essential for growing society like India, because it gives future generations a caring and good environment.
Conclusion:
So now as S.497 of IPC has been decriminalized so it means now commission of adultery isn’t any longer a punishable offense[14] unless it ends up in abetment of suicide. But the laws associated with adultery in India has always been a component of controversy thanks to many factors like firstly it’s gender biased then secondly under the previous laws the husband was the one could prosecute and not the wife. As a result, this had result in the objectification of the ladies and had reduced them to a mere object instead of being a personal. Also, the older laws were in conflict with the non-public laws of the many communities where polygamy is allowed. So, as a result, the previous laws on adultery weren’t sufficient and needed an amendment instead of eliminating it totally from the written record.
It is still to be seen where the current debate on the opinion of the Supreme Court leads us to. Although the Supreme Court has put forth its purview that the law wrongly treats women because the property of men and goes against the basic rights under the Constitution, adultery continues to be a legitimate ground for divorce. Hence, it may be viewed as something which places an affordable restriction, which implies that there are valid limitations on sexual autonomy.
Hence, it can be concluded that the system shouldn’t not only regulate whom one should get it on but rather regulate the method of separation if one among the 2 partners violate the sanctity of marriage.
[1] M. Alavi v. TV Safia, AIR1993KER21
[2]2 Morgan, H. D. (1826). The doctrine and law of marriage, adultery, and divorce: exhibiting a theological and practical view … Oxford, Eng.: Printed by W. Baxter for J. Parker.
[3] http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E
[4] “Urgency Resolution on Human Rights Situation in Nigeria.” European Parliament, 2002-APR-8, at: http://www.waado.org/NigerDelta/HumanRights/
[5] Treason Act 1351
[6] Brake, E. (2013). Adultery. International Encyclopedia of Ethics. doi: 10.1002/9781444367072.wbiee372
[7] S. 497 of Indian Penal Code, 1860
[8] AIR1951BOM470
[9] AIR1985SC1618
[10] AIR1988SC835
[11] Article 46 of Marriage Law of the People’s Republic of China.
[12] KENNEDY, C. (1987). THE IMPLEMENTATION OF THE HUDOOD ORDINANCES IN PAKISTAN. Islamic Studies, 26(4), 307-319. Retrieved February 20, 2020, from www.jstor.org/stable/20839856
[13] https://indianexpress.com/article/india/india-decriminalises-adultery-a-look-at-other-countries-where-it-is-still-a-crime-or-not-5376598/
[14] Joseph Shine v. Union of India, 2018 SC 1676