INTRODUCTION
The building block of every relationship is trust and loyalty, but if these two requirements are tainted then the existence of any kind of union is pointless. But does the act of having consensual intercourse with someone land one in the domain of criminality?
The word Adultery originally hails from the French language “Adultere” meaning to violate the conjugal faith. The Latin word “Adulterium” meaning thereby to pollute is the original background of the word according to some.
In a layman’s view, it simply means when a married person indulges in sexual relationships other than their spouse. However, it is worth noting that this extra-marital relationship is consensual and not by force or any other unethical and unlawful means. The Indian Penal Code of India defines it under Section 497. Henceforth, it can be inferred that the law not only strictly prohibits someone from committing this crime but also penalises them.
In 2018, the Constitutional Bench headed by the then Chief Justice of India Dipak Mishra scrapped the 158-year-old Section 497, which penalises adultery. The five-judge bench unanimously squashed the IPC provision. However, this did not go that smoothly. The friction received from the society criticising the verdict persists to the present date. This is what brings us to dissect the rationale behind the judgement of the Supreme Court and how it is justified.
MOST SEARCHED QUESTIONS FT. DECRIMINALISATION
The article conquests of following research questions:
Does the decriminalisation hamper the sanctity of the marriage as an institution
What is the rationale behind the scrapping of the provision of adultery under IPC
What are rising controversy regarding the topic
How has this step forward been appropriate with the changing society?
All these questions fulfil the objective of expanding personal knowledge. Acquiring a new perspective and viewpoint is necessary and that is what the paper attempts at achieving.
ECLIPSE OF EQUALITY
Section 13 (1)(i) of the Hindu Marriage Act, 1955 states “either the husband or the wife, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse” as one of the grounds of divorce. When either of the spouses in a marriage union indulges in adultery, then the other spouse can claim divorce under this section of the Hindu Marriage Act, 1955. If the adultery is proved then the spouse guilty of adultery would be penalised for imprisonment extending to five years, or with a fine, or with both under Section 497 of IPC, 1860.
To commit the offence of adultery the following prerequisites are to be fulfilled:
Sexual intercourse committed with the wife of another man
The person must have the knowledge or belief that the woman is the wife of another man
Such sexual intercourse must be without the consent or conveyance of the husband
Such sexual intercourse must not amount to rape
-Dipak Mishra CJI.
The provision grants women relief regarding them as a victim. Thus, it can be inferred that adultery views women as a property of men rather than an individual human being. This is undignified to women and moreover offends sexual freedom. The protection given to women under the provision highlights her lack of sexual autonomy but also ignores the social repercussions of such an offence.
Furthermore, prima facie, - the perusal of the Section 497 is gender biased and discriminatory. The fact that, when the offence is committed by both of them one is convicted but the other is absolved. The concept of gender neutrality on which the whole IPC should be pillared on seems to be absent in the said provision. Also, the fulcrum of the offence is destroyed once the consent of the conveyance of the husband is obtained. Hence, perceiving women as subordinate to men while the Constitution confers equal status on all is unconstitutional.
This archaic and asymmetric law though doesn’t prosecute the woman even if she was a willing participant in the act, it confers a full right on the husband to prosecute the man who had sexual relations with his wife. But, in contradiction, the wife on similar lines cannot prosecute either the woman with whom her husband had sexual relations or the husband himself.
According to the UN report
As Justice Krishna Iyer rightly quoted,
This saying justifies the discarding of criminal provisions that confer partial pedestals among men and women and curtail them in making sexual choices. The dual sets of standards of mortality, validated by this provision were rightly struck down. The individualistic approach of the Courts in this case is seen as a sign of a progressive society where ascribing women to impossible virtues and confining them to a narrow sphere of behaviour is completely intolerable.
WHY HAS ADULTERY GAINED CRIMINAL SANCTION?
The time when the adulterous act was included in the criminal domain was in 1860. Comparing the morality standard of that time with the needless times of today creates a subjective distinction. The act may have different definitions in different nations but the core principle of sexual relations outside the present wedlock remains unchanged. Adultery was never considered a serious crime until Monogamy became a serious thing in society. It was with civilisation coming into play and marriage as an institution grabbing the world stronger, that certain sexual relations became immoral. With family ties growing, the union of marriage was seen as a means to secure a man’s property even after his death. This was possible only if it was ensured that the person inheriting the property belonged to the same bloodline. Intercourse with a married woman would adulterate the issue, thereby burdening the woman’s husband to support the child of some other man.
Adultery put under the penal sanction was enacted with a viewpoint to prevent men other than men from having sexual intercourse with someone else other than her spouse, whose property she was deemed as. The social relationships in Indian society are being weighed with the sexual relationships. Consequently, there exists a strict social sanction imposed on formation, continuation and regulation of sexual relations at any given point in time.
With repeated conditioning from time immemorial from social, moral, religious and legal agents, the perception of adultery to be wrong cannot be blamed on an individual’s mindset. Much of the friction rising against the decriminalisation of adultery is because a relationship outside the marriage is a faulty one. It is undoubtedly true. However, penalising someone for it is against the individual choice.
India being a collectivistic society considers this faulty relationship against the societal norms. It is so detrimental to society that it needs to be backed by some penal action. It questions the morality of the society as a whole. The attachment of this thought is so engraved in the minds of the people that punishment for the abuse of the same was the onus of adultery.
A COMMON-WOMAN PERSPECTIVE
The incident of decriminalising adultery by scrapping the long-lived Section 497 is a step forward. Adjusting a mentality that shelters individualism focuses on the larger picture. This act of the Supreme Court is treated as a torchbearer for theories of decriminalisation which is a less explored domain in comparison to the criminalisation sector.
Prior to the judgement scrapping Section 497, the criminal laws were not constitutionally questioned. But this landmark incident asserts that the criminal provisions be circumcised by constitutional validity thus offering scholarly enrichment. This can be seen as an outway for rebuilding the Indian Penal Code on constitutional lines.
Bringing equality in society by striking down discriminatory provisions is also the call of the hour. So, the provision which treats any sex less than the other is to be nullified. Also, changing something that has been validated by society for such a long time requires patience and a different angle to think from. It is the active participation, out-of-the-box thinking and assimilation of changes by the courts of India that has made it possible to make the Indian society more inclusive and egalitarian by squashing the discriminatory, unjust, patriarchal and archaic provision of criminalization of adultery
CONCLUSION
Criminalisation is important for a society. Apart from regulating it, it deters the wrongdoer from conduct which is unlawful and poses a threat to the public good. However, it is important that the criminalisation took place within the constitutional boundaries set by the Indian Constitution. When the criminal infringes on individual liberty, in turn, imbalances the welfare state, challenging the constitutional validity of those provisions becomes necessary.
In this case, the Indian Constitution lived for what it was invented for by our political leaders. Ensuring an egalitarian, just society where each individual acts independently and lives dignifiedly.
Viewing Section 497 from the lens of the Constitution the bigger picture of criminal law in contravention of the Constitution has been set right by the judiciary under Joseph Shine vs Union of India in 2018. This makes clear that any provision being antithetical to the constitutional guarantee of liberty, dignity and equality, would not pass the constitutional muster.
Comments