Ethics Of Adultery Legalization And Controversy Surrounding The Topic

Introduction

The word Adultery is the Latin term adulterium which means to corrupt. Adultery can be defined in general as voluntary sexual intercourse with a person other than his own spouse. Sec 497 of the Indian Penal Code defines Adultery as If any person finds having sexual intercourse with any other woman which was not supposed to his wife. Such a person is guilty of the offense of Adultery and should be imprisonment which can extend to five years, or with fine, or with both.

According to this section, the wife is not punishable even as an abettor. In the case of adultery, the husband of the women against whom adultery is committed can file a complaint and in absence of him, some other person who cares his women can file. This offense is non -cognizable and it is a bailable offense. It can be a compoundable offense compoundable by the husband against whom adultery is committed.

Essentials of section 497 of IPC

• The Husband must have committed the sexual intercourse other his wife.
• The husband must know that the woman was the wife of another person.
• Women husband has not given consent to do so
• The intercourse was not rape
• Women's consent is not an excuse in the offense of adultery.

Section 198 of the Criminal Procedure Code,1973 states that no Court shall take the cognizance of such offense like adultery except the complaint was done by the husband of the women and if the husband was not there the person who takes care of women when such offense was committed.

Jesus has defined Adultery as “Adultery includes any married man who has intercourse outside the amid of marriage “.

Marriage is a holy relationship and vows were taken by both of the spouses and they both should take responsibilities and both should be faithful to each other. Adultery is a social and civil offense and infidelity of trust. In ancient times, all religions like Hinduism, Islam, and Christianity consider adultery as a social and moral sin. Adultery is considered an invasion of the right of the husband over his wife.

The law of adultery varies from country to country. It is not the same everywhere. There are some countries like Afghanistan, Bangladesh, Nepal, Indonesia where adultery is still a crime and in Pakistan, both men and women were guilty of adultery. But in India, after Joseph Shine's case is not a crime it was only a ground for divorce.

Adultery as a Ground for Divorce

The Supreme Court in the Joseph Shine case held that adultery is a ground of divorce and the adulterer should be given civil penalties. According to Sec 13(1) of the Hindu Marriage Act,1955 If any person voluntarily does sexual intercourse other than his spouse is a ground of divorce. And Sec 10 of the Hindu Marriage Act,1955 says adultery as a ground for judicial separation.

Section 22 of the Indian Divorce Act has made the provision of judicial separation on the ground of adultery. If a husband had done sexual intercourse outside the wedlock, is also a ground for divorce according to the Special Marriage Act,1955.

Constitutional Challenge of Sec 497

In Yusuf Aziz v. State of Bombay [1] In this case for first-time adultery, the law was challenged. Petitioner argued that adultery law infringed on the fundamental rights which were given under Article 14 and 15 of the Constitution. The Supreme Court held that Article 14 should be read with other provisions that are the exception to our fundamental rights. Article 15(3) gives an exception to women and children. The petitioner says that this clause is for the benefit of women and children and not giving a license for abetting the crime. The Court finally held that Article 14 and 15 of the Constitution validate the Sec 497 of the Indian Penal Code.

In Sowmithri Vishnu v. Union of India [2], the Court held that Article 14 and 15 is not violating the Sec497 of IPC on the following grounds:

• Sec 497 gives the right to the husband to prosecute the adulterer but does not prosecute women who have committed adultery.
• Sec 497 IPC does not grant any right to a wife to sue her husband who has committed adultery.
• According to Sec 497 husband can have a sexual relationship with a single woman and it was not an offense.

V.Revathi v. Union of India [3] in this case court held that not prosecuting women in adultery cases is a social good. It allows both the spouse to maintain their sanctity of marriage. The Supreme Court states that adultery law was a shield rather than a sword.

In the Joseph Shine v. Union of India [4] In this case a non – resident of Kerala file a PIL under Article 32. A petition was filed challenging the constitutionality validity of Sec 497 of Indian Penal Code, 1860 and also sec 198(2) of Criminal Procedure Code,1973. The five-division bench struck down sec 497 of IPC and declare sec 497 unconstitutional and Sec 198 (2) of the Criminal Procedure Code as it violates Article 14,15,21 of the Constitution of India. The Joseph shine case held the following things:

• Sec 497 Is archaic and Constitutionally Invalid – This section gives women dignity, privacy, and autonomy. Sexual autonomy is a personal thing and comes in the ambit of Article 21 of the Constitution. But sec 497 denies the fact that women are equal participants in a marriage and was incapable of taking decisions related to a sexual act which was a violation of Article 14.
• Section 497 is not a criminal offense – A crime means which is wrong for the society as a whole and adultery was a personal issue between both the spouses. So, adultery doesn’t come in the category of crime. It is a civil offense and a ground of divorce.
• A Husband is not a master of wife – The woman should not be considered as a property of the husband or a master of wife which was held in this case. The Constitution of India has provided equal status to women.
• Sec 497 is arbitrary – It is irrational that this section confers the right to the husband to treat his wife as he likes which was not appropriate. This section does not enable to wife to file any criminal prosecution against the husband.

Arguments In Favour Of Legalising Adultery

It was the right decision that adultery was decriminalized and there was no gender bias. If two mature person wants to do consensual sex then no one has a right to stop them. Whether it is against the moral and ethical sense does not come in the purview of the law. According to law, it was just two persons who had consensual intercourse. There should be no confusion between personal laws and community laws. When it comes to legalizing any community laws all the factors must be considered but the same is not true for personal laws.

When the Hindu Code Bills and Dowry Prohibition Acts were passed the feeling that men are those who commit wrong and it is necessary to protect women as there was in a bad position in the society in the time of 1950 -55. But in today's era, women are literate, independent, and know their rights and there was no need for such adultery laws in this scenario.

Arguments Against The Legalising Adultery

Marriage is necessary things for the smooth running of society and adultery leads to harm to the ethical and moral values in society. Legalizing adultery means influencing western culture and there was a high rate of divorce in western countries. We Indians should not follow this fashion and not encourage the system of extra -marital affairs which would increase if adultery is decriminalized.

Section 497: A Misuse Of Article 15(3)

The makers of the Constitution believed that in this era of the twentieth century no person should discriminate based on their gender. But it was seen the protective discrimination for the women. The special advantage was given to women under Article 15(3) of the Constitution.

The intention of makers is clear as they want to safeguard and protect and leads to the betterment of women as a whole. Even the Supreme court says that both men and women liable for adultery is against as per the law.

The adultery law considers the husband as an offender and treats women as they are incapable of committing adultery. So, this kind of legislative discriminatory and arbitrary for the women. Sec 497 of IPC is a violation of equality under the constitution.

Conclusion

This article concludes that there was a huge change in the society related to women as they are not a chattel of her husband because the Supreme Court has struck down 150 years old law on adultery as unconstitutional. As many Law Reforms Committee has also given suggestions that this section needs changes and should be repealed.

Along with sec 497, Section 198 of the Criminal Procedure Code is also unconstitutional. By invalidating both the section the Supreme court guaranteed that no one can harm women’s dignity and empowerment.