ADULTERY NO MORE A CRIME

ADULTERY NO MORE A CRIME

Kamaraj IAS Academy | ADULTERY NO MORE A CRIME
  • September 28, 2018, 5:08 pm

IN NEWS

A five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, held that adultery is no more  a crime and struck down section 497 of Indian Penal Code .

SECTION 497

Section 497 of the 158-year-old Indian Penal Code says: “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.”

 If we simplify it, Section 497 of Indian Penal Code convicts and penalises a man if he is found guilty of engaging in adultery. Women have been given immunity from this law. Apart from this, if the wife is given consent by her husband to have sex with another man, it constitutes no offence.

WHAT ARE THE ARGUMENTS?

The main crux of the argument is that Section 497 is “violative of gender equality”. The law only identifies men as a victim. It also does not empower women to prosecute her husband even if he is engaged in adultery.

CENTRE ‘S VIEW ON SECTION 497

“It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family.

 Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers,” the Centre had said in court.

COURTS VIEW

  1. Any system treating women with indignity or discrimination invites wrath of constitution.
  2. Any provision treating woman with inequality is not Constitutional and adultery law arbitrary, said Chief Justice of India.
  3. Equality is the governing principle of a system. Husband is not the master of the wife
  4. Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.
  5. Adultery creates dent on the individuality of women and is a matter of absolute privacy.
  6. The Supreme Court had upheld the legality of the crime in 1954, arguing that in adultery "it is commonly accepted that it is the man who is the seducer and not the women".
  7. It opined that adultery might not be the cause of an unhappy marriage; it could be the result of one. Section 497 "denudes women from making choices".
  8. The Supreme Court said the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
  9. Saying that Section 497 also deprived a woman of her privacy, the court said, “Society has two sets of standards for judging the morality of men and women. The law is gender biased, gives unequal voice to partners.”

HOW SEC 497 INFRINGES ON ARTICLE 14 AND ARTICLE 21

Section 497  punishes only the man and spares the woman portraying her as a victim and violates Article 14. Both parties in adultery derive the benefit of the act. Despite that one is treated as a victim and other is punished. If an unmarried man has sexual relationship with a married woman, then it did not attract the offence of adultery. The law discriminates between men and women in different situations like a married man can complain against another married man in adulterous relationship with his wife, violating article 14 .

Criminalising adultery denies an individual bodily autonomy by placing a penal restriction on choosing a sexual partner, which is considered the most intimate of decisions a person can make. It, thus, violates a fundamental right of article 21 (Right to Privacy )by undermining the concept of consensual sex. Decisional autonomy and, by extension, bodily and sexual autonomy are integral to the right to privacy.

ANALYSIS

  1. The adultery law in India is a throwback to the times when women were considered as property of their husbands. The challenge before the court was not to equalise the right to file a criminal complaint, by allowing a woman to act against her husband’s lover. It was, instead, to give the IPC and the CrPC a good dusting, to rid it of Victorian-era morality.
  2. It is only in a progressive legal landscape that individual rights flourish — and with the decriminalisation of adultery India has taken another step towards rights-based social relations, instead of a state-imposed moral order.
  3. The legal system supports giving a short term and psychological outlet to the parties in a marriage to blame a third person for the breakdown of a marriage. The nature of evidence   tend to become too personal and results in further hampering of the relationship.
  4. By decriminalizing adultery india has given heed to the calls given by the United Nations Organisation (UNO) to the governments to repeal laws that criminalise adultery, as these are predominantly used to discriminate against women.
  5. The 42nd Law Commission report of India called for making the law on adultery gender neutral, by making it equally applicable to men and women and the  verdict stand by the law commission report.

TAKING IT  FURTHER

It is a matter of concern that refreshing the statute books is being left to the judiciary, without any proactive role of Parliament in amending regressive laws. The shocking message here is not merely that provisions such as Section 497 or 377 remained so long in the IPC, it is also that Parliament failed in its legislative responsibility to address them.

WAY FORWARD

The verdict has made that the consent of the spouse at the time of tying the knot does not remain in force for all time to come and there has to be consent of partners at every stage of life. This has provided women an equal space to women on sexual and bodily autonomy .And it has stressed that individual dignity is important in a sanctified society.

The recent judgments of  decrimilasing sec 497,criminalizing triple talaq indicates that the institution of marriage is not a patriarchal one and that both sexes has equal say in it .Moreover these verdicts are  a sign of modern outlook thought giving  importance to fundamental rights and space for individual privacy than to the antiquated outdated  arbitrary laws .

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