Editorial

Source: Hindustan Times

Introduction

Section 497 of the Indian Penal Code, 1860 (IPC) pertained to the offence of adultery. Historically, it criminalized adultery, making it an offence punishable by imprisonment. However, the legal structure changed with the decriminalization of Section 497 in September 2018 by the Supreme Court of India in the case of Joseph Shine v. Union of India (2018).

What was the Legal Framework of Adultery?

• Section 497 of IPC stated that "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 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”.

What is the History of Adultery Law?

• The origins of Section 497 can be traced back to the colonial era enshrined in a 150-year-old statute.
• The section, as it stood initially, criminalized adultery but only penalized the male adulterer, treating the woman as a victim rather than a perpetrator.
• In the case of Sowmithri Vishnu v. Union of India (1985), the SC upheld the constitutionality of Section 497 but expressed dissatisfaction with its gender-specific nature.
• The court, in its observations, urged the legislature to consider amending the provision to make it gender neutral.

What was the Issue with the Adultery Law?

• Arbitrary and Discriminatory:
  • The court held that the provision was arbitrary and discriminatory, as it only punished the man involved in adultery with a married woman without the permission of her husband.
  • The court observed that the provision treated a married woman as the property of her husband, infringing upon her dignity and individuality.
• Violation of Right to Equality:
  • The court held that Section 497 violated the fundamental right to equality under Article 14 enshrined in the Indian Constitution.
• Infringement of Right to Privacy:
  • The judgment also highlighted the right to privacy as a fundamental right under Article 21 of the Indian Constitution.
  • Criminalizing adultery was viewed as an intrusion into the privacy of individuals and their personal relationships.
• Changing Societal Dynamics:
  • The court recognized the changing dynamics of society and the need to reevaluate laws that may not be in tune with contemporary values.
  • The judgment acknowledged the autonomy of individuals, especially women, in making choices about their personal relationships.

What Changes have been Made in Adultery Law?

• Unconstitutional:
  • In the landmark judgment in Joseph Shine v. Union of India (2018), the SC declared Section 497 of IPC unconstitutional and struck it down.
  • The court emphasized the importance of recognizing women as equal partners in a marriage, capable of making choices about their relationships.
  • The judgment marked a significant departure from the archaic notion that a woman loses her self-autonomy upon marriage.
• Step by Legislature:
  • The legislature, in response to the SC observations, introduced amendments to rectify the gender bias inherent in Section 497.
  • The amended provision not only decriminalized adultery but also made it applicable to both men and women, emphasizing equality before the law.
• Focus on Consent:
  • The changes in Section 497 were not solely focused on removing gender bias; they also addressed the issue of consent as the Section 497 required consent of the husband of the woman for committing the act of adultery.
  • The amended provision emphasized the importance of consent in relationships, reflecting a broader societal understanding of individual autonomy within marriages.

What is the Current Situation with the Act of Adultery?

• Decriminalization, however, does not mean that there are not any consequences of adultery other than imprisonment.
• While engaging in extramarital affairs may no longer lead to criminal charges, it can have profound implications within the realm of family law, especially concerning divorce proceedings.
• Adultery is frequently cited as a valid ground for divorce, allowing a spouse to seek dissolution of the marriage on the basis of breach of marital fidelity.
• While the law no longer seeks to punish individuals for engaging in extramarital relationships, it does provide a mechanism for addressing the impact of such behavior on the institution of marriage.
• This reflects a societal acknowledgment that marriage is not just a legal contract but also a moral and emotional commitment.

Conclusion

The journey of Section 497 of the IPC from its colonial origins to its ultimate decriminalization in 2018 signifies a transformative shift in legal perspectives on adultery. The focus has shifted from punitive measures to addressing the consequences of marital infidelity within the context of family and personal relationships.