Adultery refers to the act of voluntary sexual intercourse by a married person with some person other than their spouse. The act is considered a violation of the marital commitment between two individuals.
Adultery is sexual intercourse by a husband with the wife of another person. Adultery is an offence committed by a man who engages in sexual intercourse with another man’s wife. Such intercourse is not considered as rape.
SECTION 497 IN THE INDIAN PENAL CODE
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 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.
a) Section 497 gives the right to the husband to prosecute the adulterer, but it does not give the same right to the wife to prosecute the woman with whom her husband has committed adultery. It is gender discrimination and against the spirit of equal rights given by the Constitution of India.
b) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.
c) Section 497 does not recognize the cases where the husband has sexual relations with an unmarried woman, with the result that the husband has, as it were a free license under the law to have an extra-marital relationship with an unmarried woman or widow.
ADULTERY AS A GROUND FOR DIVORCE IN INDIA
Adultery is treated as a crime in every religion. Since it offends every religion’s fundamental principle, it is regarded as a delinquent act. Adultery is viewed as a serious offense in many religions, and faithful adherence to moral and ethical principles is seen as crucial to maintaining a healthy and harmonious society. under Indian law, the punishment for adultery is imprisonment of up to five years, a fine, or both, regardless of the religion of the individuals involved.
Hinduism: Adultery is considered a sin in Hinduism. In Hinduism, marriage is a sacrament that lasts for seven subsequent births and requires the loyalty of both partners. It is believed that they only have sexual contact with their spouse. However, it is grounds for divorce under the Hindu Marriage Act.
Adultery as a ground for divorce 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.
Because the wife must establish adultery together with certain other offences such as desertion or cruelty, in the case of Ammini E.J. v. Union of India, the Kerala High Court determined that it is unfair to the wife and puts the husband in a better position with regard to it being a ground for divorce.
Section 10 of the Hindu Marriage Act defines adultery as a ground for judicial separation. Sulekha Bairagi v. Prof. Kamala Kanta Bairagi included both Sections 10 and 13 of the Hindu Marriage Act. According to the spouse, she used to visit the co-respondent and was even caught in a compromising situation with him, and she used to disregard her responsibilities. On the basis of the facts presented, the judgment was made in favour of the petitioner, and judicial separation was granted.
Muslim: Adultery is strictly prohibited in Muslim and is considered a major sin. The Quran explicitly states, “do not go near adultery; it is an indecent act and an evil way”. Muslims are expected to remain faithful to their spouse. However, it is grounds for divorce under the Dissolution of Muslim Marriages Act, of 1939
Under the Dissolution of Muslim Marriages Act, of 1939, The husband has the right to divorce his wife if he can prove that his wife had an adulterous relationship. But the wife can give divorce only in circumstances of false accusation and may ask her husband to draw back the allegation. However, if the husband draws back the claims and apologizes in a prescribed manner, the claim of the wife gets subsists.
In Zaffar Hussain v. Ummat-ur-Rahman case, the plaintiff’s wife claimed that her husband had claimed in front of several people that she had illicit intercourse with her brother. The court held that a Muslim woman may get a divorce on the grounds of being falsely accused of adultery. But at the same time, the wife cannot file a divorce under Islam if the allegation of adultery is true and a suit can be filed in case of an irregular marriage.
Christianity: Adultery is prohibited in Christianity and is considered a violation of the Seventh Commandment in the Bible. Adultery is seen as a sin against God, one’s spouse, and oneself. Christians are encouraged to avoid all forms of sexual immorality and to remain faithful to their spouse.
The law regarding divorce and judicial separation among Christians in India is contained in the Indian Divorce Act, of 1869 and the Indian Christian Marriages Act, of 1872.
According to the Indian Christian Marriage Act, the divorce process is dual in nature. The couple must first ask the Church for an annulment before they may apply to the court for a divorce judgment. But, under the Act, the husband simply needed to show that his wife had committed an adulterous act; the wife had to prove the presence of other grounds along with adultery, such as cruelty, a change in religion, insanity, etc.
In the case of Pragati Varghese vs. Cyril George Varghese, the Bombay High Court made a comment about this, stating that it unfairly places extra pressure on the woman and allows adultery as an independent ground for divorce. The Kerala High Court ruled in Ammini E.J. v. Union of India that it is against Section 21 of the Indian Constitution for a Christian woman to have to prove the offense of cruelty or desertion coupled with adultery.
Special Marriage Act
The Act has recognized adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation. The present position on the concept of burden of proof has also been relaxed under the Special Marriage Act, 1954.
In the case of Sari v. Kalyan, it was decided that circumstantial evidence would have to be sufficient to show adultery because prima facie proof of the act of adultery may not be present and adultery need not be proven beyond a reasonable doubt.
SECTION 497 OF IPC AS BEING VIOLATIVE OF THE GOLDEN TRIANGLE OF THE CONSTITUTION I.E., ARTICLES 14, 15, AND 21 OF THE CONSTITUTION
Section 497 violates Article 14 [Equality before the law] – Section 497 treats men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery.
Violation of Article 15(1) [Prohibition of discrimination]– Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not if her husband does the same.
Violation of dignity of woman and Article 21 [Right to life]-Article 21 promotes the individual’s dignity. Section 497 effectively limits a woman’s basic dignity by establishing invidious disparities based on gender stereotypes, putting a dent in women’s individual dignity.
Joseph Shine v. Union of India (Land Mark Judgment)
In 2018 section 497 was struck down by Supreme Court in the case Joseph Shine v. Union of India. Mr. Joseph Shine, an Italian hotelier, filed the petition, even though he was directly unaffected by the law. His petition was allowed based on the locus standi (right or ability to institute an action or appear in court) in Public Interest Litigation (PIL) proceedings with the goal of societal welfare and justice.
The Petitioner raised various issues with Section 497 that he felt violated fundamental rights. It was contended that the law permitted for a man’s punishment in the instance of adultery but not for action against a woman. Due to the lack of a legal provision to the contrary, a woman was not entitled to submit a complaint against her husband for adultery under the Section. Furthermore, he maintained that under this rule, women were treated like objects because the action was ‘criminal’ depending on the husband’s consent. The Petitioner contended that the rules violated basic rights guaranteed by Articles 14, 15, and 21 of the Constitution. It was argued that because sexual intercourse was a mutual and consenting act for both partners, neither should be held liable. The Petitioner further claimed that Section 497 of the IPC violated Article 21’s basic right to privacy since the choice of an intimate partner lay clearly within the area of autonomy over a person’s sexuality. It was argued that everyone (married or not; male or woman) had an unrestricted right to engage in sexual intercourse outside of his or her marital relationship.
According to the Respondent allowing persons to have sexual relations outside of marriage would ultimately destroy the institution of marriage and hence the clause criminalizing adultery was necessary to safeguard the sanctity of marriage. It was argued that an act that offended society’s morals and damaged its members should be punished as a crime. The Respondent contended that the right to privacy and personal liberty guaranteed by Article 21 was not absolute and might be subject to reasonable limitations when the public interest was at risk. Section 497 was also considered to be lawful as a type of affirmative action in favor of women.
The Supreme Court decided 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.
The Supreme Court said in its judgment that Section 497 was antiquated and unconstitutional since it deprived a woman of her liberty, dignity, and privacy. Court opined that the contested clause violated a woman’s right to life and personal liberty by promoting a marriage concept that undermined actual equality by attaching legal consequences to a gender-based approach to the relationship between a man and a woman. It was considered that the over-emphasis on the element of husband connivance or assent translated to the woman’s subjugation. The Court upheld sexual privacy as a constitutionally protected fundamental right. The court additionally determined that adultery could not be considered a crime unless it directly affected public order or resulted in a breach of the peace.
CONCLUSION:
Section 497 was a controversial law in India that criminalized adultery by making it a punishable offense for men who had sexual intercourse with another man’s wife without the husband’s consent. The law was gender biased as it did not consider women as offenders or victims of adultery.
In 2018, the Supreme Court of India declared Section 497 as unconstitutional and struck it down. The court stated that the law treated women as objects and violated their fundamental rights of dignity and equality. The court also observed that the law had no relevance in present-day society as marriage was a personal matter and the state should not interfere in it unless it was necessary to protect the interests of society.
This article is written by Shailaja Kurra. Shailaja is a 4th year law student from Padala Rama Reddi Law College, Hyderabad. For feedback relating to this article, she may be reached at shailajakurra3120@gmail.com.
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