Introduction

Marriage is a personal affair between two people standing on pillars of trust. Breach of trust is immoral and unethical but should not be a crime. Before 2018, India considered extra marital affairs as a crime. Section 497 of Indian Penal Code talks about Adultery meaning having a sexual relationship while being married, with someone else. The provision states-

“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.”

 It means that Only a man who had consensual sexual intercourse with the wife of another man without his consent could have been punished under this offence. Woman, in this case, is a victim and she cannot be prosecuted for the same. This law was challenged by Joseph Shine back in 2017 and it was struck down by the Supreme Court of India.

Manusmriti, an ancient Hindu text, says in its literature that “If men persist in seeking intimate contact with other men’s wives, the king should brand them with punishments that inspire terror and banish them” at the same time f we go back to Indian folklore and other historic epics each of them mention extra-marital love. Infact, Most love poems in Sanskrit are “about illicit love” according to scholar J Moussaief Masson.

People were divided in two parts having opinions on this law. One part did not want this law to be struck down, arguing that it will destroy the sanctity or marriage and that it will result in adulterous relations having more free play. The central government also had the same opinion and was not in favor of decriminalizing this law. The other set of people opined that this is a very skewed and sexist law making it a discriminatory provision towards women. This does not protect the sanctity of marriage. The 158 years old, archaic, Victorian morals based law is more about treating women as property of their husbands rather than saving the institution of marriage. Act of adultery is definitely unethical and it breaches the trust of a person and a marriage too but how does putting someone behind the bars for a private act justified in the name of morals. Malimath Committee had given certain recommendations back in 2003, suggesting reforms for Indian Criminal Justice System. The committee had also pointed out that law of Adultery should be gender neutral.[1]

There are various questions and open ends to this law that will be further discussed in this paper. It briefly talks about the mindset behind the archaic law and its absurdity in the current times.

Law of Adultery: History

Section 497 was a pre-constitutional law which was enacted in 1860. At that point in time, women had no rights independent of their husbands and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender. The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties and not a criminal offence[2]. This was an archaic law based on the mindset that women can be treated at chattels.

Section 497 was first challenged in Yusuf Aziz v. State of Bombay[3], where it was contended by the petitioner that the section violated Articles 14 and 15 of the Constitution. The court held that women could only be a victim of adultery and not a perpetrator[4]. In V. Revathi v. UOI[5], it was held that adultery law was a shield rather than a sword[6]. This law had been criticized for treating women as property owned by men. The law was often misused by husbands during matrimonial disputes. 

The Supreme Court decriminalized the section in Joseph Shine v. UOI[7]. The court held that the offence is unconstitutional and it violates Article 14, 15, 21 and the dignity of a woman and her right to privacy and denudes her sexual autonomy. Section 198 CrPC was held to be violative of Article 14. Which will be further discussed in following sections of the paper.

Since adultery is prohibited in Islamic law, it is a crime in quite a few Islamic countries. To name a few, Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia[8].South Korea struck down a similar law and said that the law violated self-determination and privacy in 2015. International trends worldwide indicate that very few nations continue to treat adultery as a criminal offence. Adultery is still a ground for any kind of civil wrong including dissolution of marriage in India[9]

Joseph Shine case

The historical judgment that changed the perspective of adultery as a crime in India dated on July 27th, 2018, Joseph Shine v Union of India[10] decriminalized the act of adultery. It was a five- judge bench, namely Justice Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman. A PIL under Article 32 of the Indian Constitution was filed by Joseph Shine, a non- resident of Kerala. The petition challenged the constitutionality of adultery as an offence under Section 497 of the IPC read with Section 198(2) of the CrPC that talks about offences regarding marriage. The main purpose behind that petition was to protect Indian men from being punished by vengeful women or their husbands for extra marital relationships. A close friend of Petitioner’s in Kerala committed suicide after a woman co-worker charged him with malicious rape. Further section 497 is a gross occurrence of unfair sexuality, authoritative imperialism and male patriotism. The issues were

1)     whether section 497 of IPC is unconstitutional?

2)     There is no legal provision that a woman can file a complaint of adultery against her husband, this should be addressed.

3)     Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal and violative of fundamental rights.

Petitioner also wanted to point out that if the husband gives his consent for such an act then such act is no more considered as a crime. Therefore, women are treated as an object under adultery law. Intervenor Vimochana was represented by Advocate Jayna Kothari, Executive Director of CLPR. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in Puttaswamy case. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution.

A three-judge bench led by former Chief Justice of India Dipak Misra had referred this case to a five- judge bench. The court observed that husband cannot be master of wife and that this law was based on Social Presumption. The Supreme Court of India struck down this law and declared that “The notion that a woman is ‘submissive’, or worse still ‘naive’ has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman”

Adultery was earlier punishable by Five years of imprisonment, maximum, or fine or both. 

Imposing Morals: Hart and Delvin

From the perspective of the Hart Devlin debate started in 1960’s, deciding whether law should enforce morality. Professor Hart and Lord Devlin debated about what the law ‘ought’ to be and whether morality should be enforced by law to form a good society[11].Jurisprudence analyses what would be the best form of law in order to form a civil society where both individual liberty and normative goals are practiced. Should the aim of law be primarily focused on the protection of individual liberty or, instead, the normative goals aimed at the good of civil society? The laws in any society should not only be focused on normative goals it should also protect individual liberty. Professor Hart discussed the connection between crime and sin and to what extend should the law be concerned with the enforcement of morals and the punishment for immorality. According to Devlin there are certain moral principles aimed at the good of civil society and a breach of those morals is a social offence. Regarding these issues Lord Devlin put forward three questions.

First ‘Does the society have the right to pass judgement regarding morality? Ought there, to be a public morality, or are morals always a matter for private judgement?’[12]In Devlin’s view public morality exists. A civil society does have the right to pass moral judgments and morality is not always a matter of private judgement.

Devlin’s second question was that if society has the right to pass judgement does it also use the law as a weapon to enforce it? Devlin said society does have a right and a civil society uses the law to preserve morality in order to safeguarding social morals[13]. A civil society has an indefinable right to legislate against internal or external damages.  Further Devlin thought how moral judgement in civil society should be considered. To consider public morals the law is not looking for true belief but what is commonly believed by individuals in a civil society as a whole.

The third question is whether the weapon of law should be used in all cases or in some cases? If not in all cases what should be in mind? Devlin realizes that citizens cannot be expected to social judgement on every aspect of their lives. Therefore, there must be a balance between normative goals in civil social and individual interest. It is difficult to suggest how the balance ought to be struck. However, Devlin believes there are certain principles that legislators should bear in mind which enacting law and enforcing morals. Before a civil society does thing beyond the limits of tolerance judgement has to be purposeful where any act is dangerous. The legislature should also remember that the limits of tolerance often shift but that does not always mean that the standard of morals will also shift but the extent to what society will tolerate may be limited.  Devlin explained moral standard change from generation to generation so the law should intervene slowly striking a balance between individual liberty and the normative goals aimed at the good of civil society baring in mind as to what morality changes with time.

In context to Adultery and the Supreme Court striking down The Adultery Law in India, we understand that Delvin’s theory of law, that certain breaches of morals are a social offence and not a criminal one and do not deserve a certain level of penalization has clearly be upheld by the bench that delivered the judgement on Joseph Shive V/s UOI[14] , hence it can be understood that while Professor Hart’s approach is more idealistic and belonged to a different time, due to the level of rigidity attached to it’s theory, Professor Devlin’s approach is more futuristic and flexible with the changing times and scenarios.

Absurdity of section 497 IPC

There were many stands against striking down the law of adultery. People believed that decriminalization will result in more adulterous relations and being more in free play. It Is against Indian Ethos and keeping it a punishable offense protects, supports and safeguards the institution of marriage. The Union Govt. had given a statement that striking down this law will only weaken the institution of marriage. In their opinion, diluting this law on Adultery will affect the Sanctity of marriage. But, does criminalizing this act actually helps the marriage sustain?

There are various questions and grey areas left in the provision. The Language of the Section 497 is not very clear and in my sense very absurd. The arguments are threefold here.

1)     Right to Privacy.

How putting a consenting adult behind the bars for having sexual relations with another consenting adult save the sanctity of marriage? Going back to the science of law, jurisprudence, particularly the debate of Hart and Delvin it very well explains that doing something immoral and unethical is one thing and imposing morals, making private acts between two consenting adults a crime, another. This act is surely unethical and immoral but criminalizing it is nowhere helping the marriage to sustain.  J. Chandrachud stated “Act of Adultery is symptomatic of a broken marriage and not a cause of broken marriage. And if we start criminalizing the symptoms of a problem, you are actually heading towards a disastrous situation.” 

This situation is between two people and their marriage, the constitution gives them the right to privacy which should be maintained. Criminalising adultery also 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 by undermining the concept of privacy.

Going back to the LGBTQ case[15] Supreme Court had pointed out a very beautiful fact of life “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.”  It is baseless to invoke tradition to justify such restrictions, fouls the fundamental tenets of constitutional interpretation, under which constitutional morality supersedes popular morality. To attach criminality to something happening in the four walls of privacy is wrong. The act of adultery involves breach of trust in the institution of marriage and making it a criminal offense does not protect the sanctity of marriage in any possible way. It in turns only forces the woman, emotionally abuses and punishes her which will be dealt with in the next section.

2)   Gender Neutrality

The law looks like it is a pro woman provision but is an anti- woman law in totality. Women are treated as chattels and enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, section 497 does not pass constitutional muster. In this case, woman cannot complain against an adulterous husband or prosecute him where as the man has complete right to file a complaint against his wife’s sexual partner. This archaic law had the purpose to ensure the husband’s control over the sexuality of his wife and manifest arbitrariness as it was founded on a notion that a woman, by entering into marriage, loses her voice, autonomy and agency. J. Chandrachud stated in his arguments that Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse.

In Sowmithri Vishnu v. UOI[16], the Supreme Court held that men are not allowed to prosecute wives in order to protect the sanctity of the marriage and for the same reason, women are also not allowed to prosecute their husbands[17]. The three-judge bench, led by former CJI Dipak Misra had a view that its time to bring focus on the rights of women. Before Josheph Shine judgemnet, Section 198 of the Code of Criminal Procedure, 1973, stated 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. This petition had also challenged this section of CrPC. In India, adultery is still a ground for divorce under Section 13 (1) of Hindu Marriage Act, 1956. It means that a woman can have sexual intercourse with many men and the husband can file a complaint against all those men and not the woman where as, if the husband has sexual intercourse with many women, the wife cannot file a complaint against anyone on the ground of adultery.

We also see that this provision offends article 21 of the Indian Constitution. Section 497 of IPC, provisionally curtails a woman’s dignity and equality which creates a gap between men and women as well as dents their identity by creating ill gender distinctions and stereotypes. Also, the element of husband’s consent tantamounts to the subordination of the female partner or wife.

It is also important to point out that Centre’s view stating that decriminalizing this section will lead to destruction of the sanctity of marriage has a very illogical thought behind it. By criminalizing this act, the women are all the more burdened with the compulsion of upholding that family, keeping it together. This is indirectly forcing the wife to stay in the marriage. As stated by Justice Indu Malhotra during the hearings of the case, “A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.” The last line of the provision mentions that ‘in such case the wife shall not be punishable as an abettor, this hints towards making the wife neither a seducer nor an abettor but only a victim. This cannot be held true and practical in today’s world. It is very wrong, rather immoral to think of a woman being her husband’s subordinate.

3)     Absurdity of law

Firstly, As explained in the above section, a woman cannot complain against an adulterous husband or prosecute him, only the husband can file a complaint. Section 497 is very absurd in many ways. It leaves a lot of open ends and language that cannot be held true in the 21st century. We cannot make this a gender biased law. Only allowing male to be able to complain or be prosecuted is a throwback to the Victorian morality. In a democratic society, one cannot impose morals in the name of laws and make private affairs a crime. Making only men prosecutable or for that matter only men having the power to complain can in no way preserve the sanctity of marriage. What about a wife who find out about the adulterous relationship her husband is involved in, she can’t do anything except for filing for a divorce?

Secondly, the law states that a sexual affair with a sex worker, widow or an unmarried woman shall not be considered adultery. The question remains, what is the law trying to protect? Marriage? Men having sex with anyone except a married woman? Or just giving them a leeway to indulge into anything but not with a married woman? This imposes that a married woman is her husband’s property and no other man shall trespass the property. There are specifications in the law that men can indulge in a sexual relationship with anyone while being married but not with a married woman. Does this protect the sanctity or marriage or gives men a way to do what the want with a clean chit?

Thirdly, if husband consents to his wife having an extramarital affair, its not adultery. All these points boil down to only one conclusion: Men have rights over their wife and they are supposed to be their husband’s subordinate. Only thing happening here is objectification woman and subjecting them to a forced marriage. It only proves that women cannot be given personal autonomy and they are seen as their husband’s property that shouldn’t pe trespassed. The law also mentions that without the consent or connivance of that man which means that this is a crime only if you don’t have the “permission” of your husband.  This penal provision was based on gender stereotypes about the role of woman. It’s illogical to say sexual act is not an offence if it’s done with his (husband’s) consent

This law was enacted around 158 years ago, the mentality and theories behind the provisions of this law is not at all a practical approach in this century. When the court had decided to strike this section down by decriminalizing adultery, the bench proved that India has progressed and such absurd laws have no space in Indian law anymore. It shows that women are unequal participants to the marriage. 

 Conclusion

Marriage is a private affair between two people and If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative would always exist. Adultery is not always the cause of an unhappy marriage it is also a result of the same. By making it a criminal offence, there is an unnecessary burden on the wife to uphold the unhappy marriage. There were arguments that Adultery not only jeopardizes the marriage between the two consenting adults, but the act also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence. But again, an unhappy marriage will lead to the same conclusion. This is immoral and unethical, it should be a ground for divorce, making it a civil crime but no one should be sent to jail for the same. In joseph Shine case, the Supreme Court decided to strike down this law as a crime and continued it as a civil crime, a ground for divorce only. Former CJI Dipak Misra summarized the issue in a few words:

 “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said act should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.”

This case proved that India has progressed and moved ahead from the centuries old Victorian morals and has stood up for the people of this country by making it a gender- neutral concern. They have upheld the privacy of a marriage and kept this law as a ground for divorce. Women have their sexual autonomy and can no more be treated as their husband’s property.