Puru Pratap Singh, GNLU
Deepsea Chakraborty, Army Law College, Pune
Adultery law dates back to the code of Hammurabi, in which it was embraced in the seventh commandment. It has been defined as a consensual physical association between two individuals who are not married to each other and either or both of them are married to someone else having living spouse. In India, Section 497 of IPC was a section dealing with adultery. The law became invalid on 27th September, 2018 by a judgement of the apex court.
Section 497 read as follows:-
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 consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.
There have been three important instances before the SC wherein, the arguments against adultery was challenged but never once, the petition asked to render the law, as unconstitutional which was finally done in the case of Joseph Shine vs. Union of India.
In Yusuf Abdul Aziz vs. State of Bombay, it was held that the protection granted to women from being prosecuted under Section 497 was not discriminatory but valid under Article 15(3) of the Constitution. It does not violate the provisions of Articles 14 and 15 of the Constitution of India.
In the case of V. Revathi vs. Union of India and Ors., the apex court ruled that Section 497 of IPC is designed in such a way that a husband cannot prosecute the wife for tainting the sanctity of marriage by committing adultery. Thus, the law permits neither the husband pf the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband.
In another case of Sowmithri Vishnu vs. Union of India and Anr., it was contended that the contemplation of the law, evidently, is that the wife who is involved in an illicit relationship with another man, is a victim and not the one to commit the crime.
JOSEPH SHINE vs. UNION OF INDIA– CASE ANALYSIS
The writ petition in this case was filed after a friend of the petitioner, committed suicide as a result of malicious rape charges being filed against him. These malicious rape charges stemmed from the gender biased position of the law on the issue of adultery that prevailed in the country at that point. This petition challenged the constitutional validity of Section 497 of IPC on the grounds that it violated Article 14, 15 and 21 of the Indian Constitution. The main logic behind this petition that can be derived is that of there is mutual consent for a sexual intercourse between two parties, there is no proper reason as to the exclusion of one party from the liability.
Following are the two main issues that were framed by the Supreme Court-
1. Whether Section 497 IPC violated Article 14, 15 of the constitution?
2. Whether Section 497 IPC violated the idea of Right to Life and Right to Privacy under Article 21 of the constitution?
1) From the Perspective of Article 14
In the case of Maneka Gandhi v. UOI the SC described the scope of Article 14 as follows-
“The basic principle which therefore informs about Article 14 is equality and inhibition against discrimination. Equality is a dynamic concept which cannot be crib bled cabined and confined with the traditional and doctrinaire limit.”
Section 497 of IPC along with Section 198 of CrPC, makes it a criminal offence for a man to be involved in a sexual intercourse with a married woman. The other aspect of these two provisions is that if the husband of the woman is consenting to such a relationship, the offence of adultery does not exist. There existed no particular rationale behind such a law, where despite the presence of two consenting parties, one party was exempted of any criminal liability solely on the basis of gender. Such a difference was also violating the doctrine of intelligible differentia that was laid down in the case of Ajay Hasia v. Khalid Mujib. Therefore, Section 497 IPC and Section 198 CrPC were held to be violative of Article 14 of the Constitution.
2) From the Perspective of Article 15(3)
Article 15(3) of the Constitution provides for the making of special provisions for women and children wherever necessary, provided the same is reasonable. It must be read with the doctrine of reasonable classification. Not doing so, renders the special provision void as it violates Article 14 under that situation. Both men and women, in the eyes of law are equal. Thus, there is no reasonable explanation for women to be exempted from the criminal offence of adultery, and the same cannot be considered to be reasonable classification under Article 15(3) of the Constitution, and is therefore, violative of the same.
3) From the Perspective of Right to Privacy and Article 21
In the case of K.S. Puttuswamy v. UOI the Supreme Court of India recognised Right to Privacy as a fundamental right and observed-
“Privacy of the individual is an essential aspect of dignity. Privacy enables the individual to retain the autonomy of the mind and the body. The autonomy of the individual is the ability to make decision on the vital matters concerned with the life. Privacy of the body entitles an individual to the integrity of the physical aspect of personhood. When these guarantees intersect with the gender they create a private space which protects all those elements which are crucial to the gender equality. The marriage, the family, the procreation and the sexual orientation are all integral to the dignity of the individual.”
As is prima facie evident, Section 497 IPC is arbitrary and irrational and is violative of Article 21, which also includes the right to enter into a consenting sexual relationship. The same was accepted by the Supreme Court. The question then arises that is it even necessary to make adultery a criminal offence?
In the case of Bowers v. Hardwick, Justice Blackmun observed that depriving individual of the right to choose for them how to conduct their intimate relationship poses greater threat to the values that are most deeply rooted in the nation. There is no reason to criminalize consensual sexual intercourse between the two adults. In the case of Lawrence v. Texas, it was held that the criminal laws against adultery were held not be in legitimate state interest.
The principles laid down in these cases were accepted by the SC of India and it was noted that if the law on adultery prevails, it allows the possibility for women to be recognised as objects. Therefore, post this judgement adultery is no longer a criminal offence in the country.
POSITIVE REACTIONS TO THE JUDGEMENT
Critics pronouncing their opinion in favour of legalising adultery put forth the view that adultery was rightly decriminalised as it was not gender neutral. If two individuals want to get into consensual sex, it is nobody’s concern to stop them from doing so. How the society sees it and how correct it is morally should be outside the purview of law. In the eyes of law, it is two adults who had consensual sexual intercourse. Moreover, there should be no misunderstanding between personal laws and community laws, because when it comes to legalising community laws they are done so considering the moral fabric of the society and the same is not true for personal laws. When the Hindu Code Bills and the Dowry Prohibition Act, 1961 were passed, the belief was that men are the ones who commit wrong and hence, there is a need to give a special layer of protection to women. But now women are literate, independent, aware of their rights, and hence, there is no need for such a law in the present scenario.
NEGATIVE REACTIONS TO THE JUDGEMENT
Those who oppose the judgement are of the view that in a country beset with rising divorce rates and cases of marital infidelity, the decriminalization of adultery will critically endanger the sanctity of marriage. Not only does it run the risk of promoting extra-marital affairs, the emergence of divorce as the way out will catalyse the break-up of matrimonial ties, leaving children born from such marriages in the lurch.
 Namrata Kandankovi, Laws related to Adultery in India, https://blog.ipleaders.in/legalising-adultery-in-india/  Section 497, Indian Penal Code, 1860.  ABP News Bureau, “SC quashes Section 497, says ‘Adultery not a criminal offence’”, (2018).  Yusuf Abdul Aziz v. State of Bombay, 1951(53) Bom LR 736.  AIR 1988 SC 835  AIR 1985 SC 1618.  AIR 2018 SC 1676.  Maneka Gandhi v. Union of India, (1978)2 S.C.R. 621(India).  Ajay Hasia v. Khalid Mujib, A.I.R. 1981, S.C. 487 (India).  K.S Puttuswamy v. UOI, (2017) 10 SCC 1.  Bowers v. Hardwick 106 S. Ct 2841.  Lawrence v. Texas 539 U.S 558(2003) (U.S.A).