Constitutionality of Adultery Law in India

By | January 25, 2018
Adultery

Last Updated :

Introduction

The word Adultery means voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner[1]. It is considered as intolerable on social, moral, religious and legal grounds.

Unlike many other countries in India, marriages are considered to be more sacramental and union of two persons and their families, than a legal contract between two members.

So, any offenses against such sacramental union are made strictly punishable in India under Penal Laws.

Section 497 of Indian Penal Code and Section 198 of Code of Criminal Procedure deal with the adultery laws in India.

Section 497 of Indian Penal Code, 1860,

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 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 case, the wife shall not be punishable as an abettor.

Section 198(2) of the Code of Criminal Procedure, 1973

Provides only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her.

Analysis of Adultery Law

Basically, the law says any sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse was voluntary and does not amount to rape.

Such man who committed it is punishable under the law for an imprisonment of five years or fine or both. Provided that such man had knowledge of women being married to another man.

And the adulteress (women) is exempted from punishment and also from filing a case against her husband and also with the women he committed adultery.

Illustration,

  1. Anita and Ashok are married, Anita had sexual intercourse with Dilip.

In this case, Ashok can bring an action only against Dilip as Anita is exempted from punishment under the section.

  1. In another situation, Ashok committed an act of adultery with Ruchi,

In this case, Anita cannot bring an action against Ruchi.

Loopholes in the Law

The main loopholes in the present law are Gender Discrimination and it is in two phases.

One is the women (adulteress) as in example 1, Anita not being punishable and as in example 2, Ruchi not being punishable.

The other the only husband has locus standi, i.e right to sue the person who inferred with their marriage and not women who can sue neither the husband nor the other women.

Here the Women is being considered as the property of the Man.

Basically, the law is only punishing the third person that to specifically the male who interfered in the marriage which may be psychologically relieving in the short term for the parties but may be damaging in the long term as once such legal proceedings arising the persons in the marriage wouldn’t remain the same loving life. As in most cases, eventually, the proceedings for divorce are initiated after the decision of the criminal cases.

Constitutionality of Law

The question of the constitutionality of this section law first came in the year 1954 Yusuf Abdul Aziz vs The State of Bombay[2], Where the husband on being prosecuted for adultery, appealed to the Bombay High court challenging the law as discrimination of Articles 14 and 15 of the Constitution of India. Bombay High Court decided against him, so he approached Supreme Court, where it was argued that the Article 15 (3) which states “Nothing in this article shall prevent the State from making any special provision for women and children” should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes.

But the court said, Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discriminate in general on that ground, the     Constitution itself provides for special provisions in the case of women and children. The two articles read together to validate the impugned clause in section 497 of the Indian Penal Code. The appellant is not a citizen of India. It was argued that he could not invoke articles 14 and 15 for that reason.

In the year 1971, the Fifth Law Commission made suggestions as to changes in the provision, including making the law gender-neutral and reducing the prison term from five to two years. But, those recommendations were not considered.

The same question in the year 1985, came up in the case Smt. Sowmithri Vishnu vs Union of India & Another[3], where during the pendency of a divorce petition against the petitioner/wife on the grounds of desertion and adultery, the husband also filed a complaint against one Dharma Ebenezer under section 497 of the Penal Code charging him with having committed adultery with the petitioner. Thereafter the petitioner filed this writ petition for quashing the complaint on the grounds (1) that section 497 of the Penal Code is violative of Article 14 of the Constitution because, by making an irrational classification of men and women, it unjustifiably denies to women the right which is given to men.

The, then CJ Y V Chandrachud, held that the law, is not violative against neither Article 14 nor 15, as it is not an offence committed against the husband or wife but against the institution of the marriage and also the definition of the section specifically excludes the women and not made punishable is the policy of law and policies of legislation could not be questioned.

In the year 1988, In V. Revathi vs Union of India & Others[4], similar question has been raised and the court held that one is to protect the matrimonial unit of marriage between such wife and husband as to promote social good and also to save the children from the trauma of their other parent going to jail. And to prevent usage of this section by both husband and wife for striking at each other with the weapon of criminal law.

Presently, In the case writ petition of Joseph Shine v Union of India[5], has been filed in the Supreme Court, challenging the validity of the Section 497 as outdated and ultra vires of Constitution of India, which on 8th December 2017 held in the interim order that wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act and the case to be transferred to a constitutional bench of Supreme Court to reconsider the earlier pronouncements as to regard to the change in the societal progression, gender equality, gender sensitivity and perceptual shift.

Conclusion

Though many relevant reasons as to why the women not being punished have been given such as when the law was made polygamy was prevalent and to protect the interests of the women but in this era, the society has changed tremendously from then and there is a need to reconsider the laws.

And also to look at the stand of different countries on adultery. South Korea has decriminalized adultery, revoking a law that punished cheating partners with up to two years’ imprisonment and all European countries have decriminalized it. So, whether to scrap the law in totality or to make it gender neutral is again a debatable question.


– Vaishnavi Sabhapathi

Content Writer @ Legal Bites


References

[1] https://www.merriam-webster.com/dictionary/adultery;

[2] 1954 AIR 321

[3] 1985 AIR 1618.

[4] 1988 AIR 835.

[5] Writ Petition (Criminal) No. 194/2017.