Editorial

Source: Indian Express

Introduction

Adultery is decriminalized in India through the case of Joseph Shine v. Union of India (2018). However, a 350 paged report of a Parliamentary committee on 10^th November 2023 recommended to re-instate adultery as a crime in the Bhartiya Nyaya Sanhita, 2023 which is a law proposed in place of the existing Indian Penal Code, 1860 (IPC).

What are the Contentions of the Parliamentary Committee on the Criminalization of Adultery?

• In Favour:
  • It was recommended that “For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender neutral”.
  • Struck down of Section 497 of the IPC is violative of Articles 14, 15 and 21 of the Constitution of India, 1950.
  • The committee further said that “This section only penalized the married man and reduced the married woman to be a property of her husband”.
• The Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.
• Against:
  • The opposition said that “Adultery should not be a crime. It is an offence against marriage which is a compact between two persons; if the compact is broken, the aggrieved spouse may sue for divorce or civil damages”.
  • It added that “To raise marriage to the level of a sacrament is outdated. In any event, a marriage concerns only two persons and not society at large”.
    • The State has no business to enter into their lives and punish the alleged wrongdoer.

What is the Landmark Case which Upheld Adultery as a Crime?

• Former Chief Justice of India Y V Chandrachud upheld the act of adultery as a crime in the case of Sowmithri Vishnu v. Union of India (1985).
• The court observed that “It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned”.
• The court invalidated Section 198(2) of the Code of Criminal Procedure, 1973 (CrPC) as it pertains to the crime of adultery outlined in Section 497 of IPC.
• According to Section 198(2) of the CrPC, in specific instances, courts can only consider a case if brought forward by the aggrieved party.
  • In the context of adultery, the provision designates only the husband as the party deemed "aggrieved."

How can Legislature Make a Law Contrary to Supreme Court’s Verdict?

• Parliament cannot directly pass a law against the Supreme Court’s judgment, however it can pass a law having retrospective or prospective effect amending the basis of that judgment.
• A bench of Justices L Nageswara Rao, Hemant Gupta, and S Ravindra Bhat, Madras Bar Association v. Union of India (2021) said: “The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed”.

Conclusion

The discussion on making adultery a crime in India involves an intricate mix of legal, social, and constitutional elements. The potential impact of the Bhartiya Nyaya Sanhita, 2023, and its position on adultery is expected to trigger more discussions, necessitating a careful equilibrium between personal freedoms and societal norms in the context of marriage.