The word adultery has derived its origin from the French word “avoutre” which has been evolved from the Latin word “adulterium” meaning “to corrupt”. If a man has sexual relations with a woman with whom he has not entered into wedlock is said to have committed adultery.
Section 497 of the IPC criminalizes adultery and prescribes imprisonment up to 5 years and a fine as a punishment. The offence of adultery has a very limited scope as per section 497 of the IPC as compared to the misconduct of adultery in divorce proceedings. The offence is said to be committed only by a man who has had sexual relations with the wife of another man without the latter’s consent. The wife is not punished for being an adulteress or an abettor of the offence. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and 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, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.
Extramarital relations do not and cannot be authorised under the law. Morality and legality are two different things that need to be understood. Adultery is a gender-neutral offence that both men and women can commit and even otherwise it takes two to tango, so why the liability should be fixed on one. The societal norms decree a monogamous behavior amongst the married couples and the indiscretions are censored. Proving adultery in front of the Court is an extreme challenge as it needs proof beyond doubt that the parties complained against have actually had sexual relations. Thus this section served only as a tool for harassment.
WHO CHALLENGED SECTION 497 OF THE IPC?
However, Adultery does not account for as a crime in India anymore. This is the second colonial-era law that has been struck down by the Supreme Court of India. It was challenged by Joseph Shine in 2018, a 41-year-old Indian businessman living in Italy. His main argument was that it was discriminatory against men as it held only men accountable for extramarital affairs and treated women as objects. His petition stated that married women are not a special case for the prosecution of adultery and they are not in any way differently situated than men. Earlier the adultery laws said that no woman can be punished as an abettor, instead, the man was considered to be the seducer. It also did not allow women to file a complaint against an adulterous husband. Although there is no information on the actual convictions under the law husbands tend to misuse these laws too often during matrimonial disputes such as divorce or civil cases. “Men would often file criminal complaints against suspected or imagined men who they would allege were having affairs with their wives. These charges could never be proved, but ended up smearing the reputations of their estranged or divorced partners.”
The court began to hear the arguments on this petition on the 1st of August 2018. The Court held that it would strike down Section 497 if the challenging party proved to the Court that it violated Article 14 of the Constitution. A five-judge bench of the Supreme Court on the 27th of September unanimously held that adultery was no longer a crime and scrapped Section 497 of the Constitution. Section 497 of the IPC criminalized adultery by imposing culpability on a man who has sexual intercourse with another man’s wife.
Advocate Jayna Kothari, the Executive Director of CLPR was representing the intervenor Vimochana assailed that the provision which made adultery a crime and an offence by invoking the fundamental right to privacy as guaranteed under the Constitution of India. Her argument was that the right to intimate association comes under the right to privacy which is protected under the Constitution. In the judgement, Justice Indu Malhotra stated that the autonomy of an individual to make his or her choices in regard to his or her sexuality in intimate spaces should be protected from public censure. The Court while striking down the Article said that the laws basically archaic in nature and were based on societal presumptions and it was not nuanced enough as to what marriage it was or why did the partner cheat.
The women in such cases were seen as an agency who had no mind of her own or a chattel lacking agency as she could be easily seduced and led and thus the entire liability was on the male. On the other hand, the woman whose husband has been involved in adultery cannot prosecute her husband or the other woman who is involved with him. She could only prosecute her husband if he married the other women, which would be the case of bigamy under section 494 of the IPC. The law does not permit adultery and it is a ground for divorce and also amounts to mental cruelty. Most of the countries worldwide treat adultery as a ground for divorce and civil issues and so does India.