Adultery: A Violation of Equality


Adultery; the closest we have come to understanding this term was cheating, as we call it in the layman language. Throughout our lives, we come across various instances cheating. In ordinary life, cheating can be said to have two meanings. First, the one where we copy something when it’s prohibited, for example, in an examination hall and the second, when you catch your partner in a compromising position, whether emotionally or physically with another individual while still being with you. Many times due to the anger and hurt, revenge is plotted against them and sometimes executed too.

Adultery, the second category of cheating, has a broader scope with all the legal terms and conditions being put into action and executed by the judiciary.

The Leading Question- What is Adultery?

Section 497 of the Indian Penal Code 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 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 a case, the wife shall not be punishable as an abettor.” It can be understood that adultery applies when a man or a woman is caught in a physical relationship, with someone who is not their spouse, while they are married. Even for this, there are certain conditions by which this particular act can be termed as adultery-

Has reason to believe to be the wife of another man- The man should possess the knowledge that the woman with whom he is about to have sexual intercourse is married to another man.

Without the consent or connivance of the man- If the husband of the woman who is involved in sexual intercourse with another man gives his consent for the same, it will not be considered as adultery.

Sexual intercourse not amounting to rape- The woman and the man involved in the act should indulge in this willingly. Wife shall not be punished as an abettor- The wife involved in the act is not to be punished rather the man held responsible for that offence. According to Section 198(2) of CrPC: “No person other than the husband of the woman shall be deemed to be aggrieved by an offence punishable under Section 497 or Section 498 of IPC, provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

According to this Section, the husband or someone on his behalf who is taking care of the woman involved in adultery would be the aggrieved party and can make a complaint.

The two sections defining the offence of adultery are as follows: Violation of Article 14

Article 14 of the Indian Constitution states that the State shall not deny any person of equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

According to this section, the man involved in adultery is punishable for the offence, not the woman. Moreover, the wife of the man will not be considered an aggrieved party and will not have a right to file a complaint. However, this is not the case for the husband, making it a clear violation of this Article.

Violation of Article 15(1)

Article 15(1) of the Indian Constitution states that the State shall not discriminate against any citizen on the grounds of religion, race, caste, sex, place of birth, or any other factors. This article continues to state the avoidance of discrimination based on sex, and yet, the sections defy the existence of these articles.

Violation of Article 21

Article 21 of the Indian Constitution states that no person shall be deprived of their life or personal liberty except according to procedures established by the law. This article talks about personal liberty. A woman whose husband is involved in the crime of adultery has no right to file a complaint against the same. This, in turn, leads to the fact that a woman has no personal liberty in this case. Similarly, a man is held responsible for the same crime and not the woman even if she is the abettor in this situation. Hence these Sections are a violation of this article.

India: A patriarchal society

These sections define India as being a patriarchal society. How? Well, a man is considered an aggrieved party in case his wife is involved in this offence. It is also given that if a man agrees or gives his consent for the act, it does not constitute adultery. Hence, the wife is considered to be the property of her husband whom she has to obey accordingly. Similarly, the wife of a man involved in this act has no say in the crime because it is perpetrated by a man by choice. On one hand, a woman has to take permission from her husband and on the other hand, a man is considered to be involved in this act by choice.

The Dignity of a Woman

These Sections greatly hamper the dignity of women in Indian society. The wife of a husband involved in adultery does not have any say in the matter. She has to accept the fact that her husband was involved in this act without any remedy from the state.

Objectification of Women

The mere presence of the line, “without the consent or connivance of that man”, gives the vibe that it all depends on the consent of a husband. A woman does not have a say in her sexual preference, rather she is her husband's property and will obey his orders.

Joseph Shine v Union of India

This is considered a landmark case in the history of adultery. It struck down Section 497 about decriminalizing adultery. Earlier the punishment for adultery was imprisonment up to five years, a fine or both. The public interest litigation was filed challenging the constitutionality of the given sections. The issue raised was that women were considered as properties of their husbands, objectifying them, and also that men were only punished for the said crime which defied the laws of equality. So, in September 2018, the 158-year-old Section was slashed down and adultery was decriminalized. Indian Society

The sanctity of marriage in Indian society is of the highest degree. A divorced individual, especially a woman, is looked down upon by society whereas a person who is unhappy in their marriage is accepted. By decriminalizing adultery, it slashed the rule of punishing men involved in the act and provided equal status to both involved parties. Earlier adultery was a compoundable offence to the husband of the woman involved, however, by decriminalizing the act, it was no longer prevalent.

Grounds for Divorce

After decriminalizing adultery, it was constituted as a ground for divorce. Parties can seek separation if one of their spouses is involved in this act. This struck down the concept of only the husband being an aggrieved party to the act, resulting in both sides being considered to be affected and can seek a remedy for the same.

Civil wrong

As said before, adultery was considered a criminal wrong in early society. After the Landmark case of Joseph Shine v UOI, it was regarded as a civil wrong. It was decided that marriage is to be a sacred bond between two individuals wherein the courts should not interfere. By criminalizing adultery, people took advantage of situations. Sometimes the husband would falsely accuse a man he doubted to be involved with his wife. In contrast, a woman would abet a man and accuse him of adultery, as a result of which he would be prosecuted. In some cases, husbands would indulge with various women while being married, putting their wife through mental stress to cope up with the activities of her husband.

Immoral Act

Adultery is considered an immoral act. Though not illegal, it is looked down upon by society. It goes against the morals of the age-old customs. It is illegal in various countries outside India.

Conclusion In my opinion, a country where marriage is given the topmost priority, where morality is given more weight than the legality of the situation, it should not have been decriminalized. Rather, amendments should be made to provide equal rights to men and women. Women should be held equally liable for this offence as men. Furthermore, the wife should also be considered as an aggrieved party. Additionally, if a husband's consent is required for the crime of adultery, the consent of the wife should also be added. If not, the part should be struck out completely.

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