THE CONTROVERSY BEHIND ADULTERY IN INDIA by - Ananya Majumdar

THE CONTROVERSY BEHIND ADULTERY IN INDIA

Authored by - Ananya Majumdar

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES,

DEHRADUN

SYNOPSIS

You may have heard the term adultery, but what does it really mean? Adultery in the healthy sense means "extramarital affairs." 
In India it is a misdemeanour and carries a maximum penalty of 5 years imprisonment under Section 497 of the Indian Penal Code. It is also one of the major causes of divorce.     
The Attorney General has recognized this crime as limited to adultery with a married woman, and only male perpetrators have been prosecuted from the outset. Its effectiveness has been repeatedly questioned for constitutional and ideological reasons. But the law remains the same.

INTRODUCTION

Adultery is characterized as “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 offence 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 case the wife shall not be punishable as an abettor.”[1]

It is important to establish an institution whose purpose is not to preserve the sanctity of marriage from the outset, but to ensure the structure of the institution. In the case of V. Revathi v. Union of India, it was determined that men, not women, were seducers. Basically, it has been said that section 497 does not give a wife the right to prosecute her husband for adultery with another woman. The above laws are notable in that they seek to imprison only "outsiders" in marriage, and communities can also punish outsiders who violate the sanctity of marriage by breaking into matrimonial homes.

In the judgement of Joseph Shine v. Union of India the supreme court has recinded the 158 year old. The apex court under this case struck down section 497 of the IPC as unconstitutional. It was contended that this section was archaic and went against there privacy. The contested clause violates women's rights to life and personal liberty by promoting a vision of marriage that undermines true equality by applying criminal penalties to gender-based approaches to relationships between men and women. It was held that excessive attention to the permissive and consenting aspects of the husband led to subordination of the wife. The court affirmed sexual privacy as a natural constitutional right.

EVOLUTION OF THE CONCEPT OF INDIA

In the earlier times the british considered the woman that were married to be a property of their husbands.[2] Adultery was not a wrongdoing under either law or common law. In its heydayadultery was illegal, which he also abolished in 1857. Thus, criminalizing adultery was actually little known to the composer of his IPC.

The Law Commission of India has attempted to amend the IPC in depth and has provided it in its 42nd report.[3] The report contained data on the authoritative history of Section 497 and provided a survey of its status in France, Great Britain and the United States. The Commission offered an argument similar to the one we focus on here, which called into question both the criminalization of adultery itself and its specific manifestations in Section 497. After raising serious questions about the implied benefits of criminal activity for bilateral direct trade, the Commission said, "Some of us were personally inclined to recommend the abolishment of this section, but the overall As such, we believe the time has come to make such a radical change to the existing position...it has not yet come."

Though the proposed amendments never materialized, reflections continued in subsequent attempts by the IPC to reconsider, ending in the Commission's 156th Report [4]. Here the findings made in the 42nd Report are repeated with passages quoted from the Supreme Court decision of Sowmithri Vishnu v. Union of India.[5] The commission proposed removing the woman's impunity while retaining her 13,5-year prison sentence in a proposal that reflected the "transformation" that society had experienced. 12 13

ORIGIN OF THE CONCEPTUAL IDEA OF ADULTERY

The word, never used before the 16th century, is of Latin origin.

Jerome is a Catholic scholar. The Catholic philosophy of religion is obliged to include this term in its content. This includes ancillary material to their assumptions about the "sacred rite" of marriage in the Bible. The Catholic philosophy of religion and the translations of the Vulgate formed a progression which had a great influence on the following centuries.

The Vulgate translation became the standard Bible used by the Catholic Church. 16 In the middle of the century, the Council of Trent "in good faith" produced an official Bible as part of all the liturgical activities of the congregation. The Church of England is a product of Catholicism and maintains many of the ordinances of the Catholic Church. Given the connotations of “infidelity,” the display of sexual activity supports the Catholic notion that the community determines who is eligible for marriage and who is not.

The framers of the Code did not make adultery a criminal offense punishable under the Code.

The Second Law Commission took this matter very seriously and concluded that it did not recommend that such violations be prohibited in the Code. Adultery appears in the criminal codes of many countries, and some of Britain's most prominent lawyers have argued that the omission of adultery from British law was wrong. The marriage was valid at the time of the incident.

ADULTERY AS A MATRIMONIAL OFFENCE

In Hindu personal law:

Prior to the enactment of the Marriage Act (Amendment) 1976, living in adultery was a ground for separation. On the other hand, applicants can obtain a statement of legal separation if they can prove that their partner had intercourse with someone other than their partner after the celebration of marriage. Adultery is now a cause of separation and divorce. . The new clause reads: "After marriage, after engaging in voluntary sexual intercourse with a person other than one's spouse." A spouse is not punished even if he is an aide. However, when the Marriage Act requires an appeal for legal dissolution of the marriage or for separation on the basis of infidelity, it is often the case that the perpetrator, if known, is the principal party to the action and is made a co-defendant. is needed. The Supreme Court has requested that adulterers be appointed correspondents under the 1955 Hindu Marriage Act. 22

The intercourse considered in the proviso is intercourse with a third party. Non-life partner. Thus, intercourse with a spouse in a polygamous marriage does not legally constitute additional conjugal intercourse. However, if the second marriage is void, sexual intercourse with the second spouse at that time constitutes extramarital intercourse within the meaning of the provisions. The burden of proof rests on the applicant.24 Whereas formerly one had to prove this beyond a reasonable doubt, today it can be proved by weighing probabilities.24 25

In Christian law:

Section 10 (1) (i) of the Divorce Act 1869 (as amended in 2001) states: "Any marriage which takes place before or after the coming into force of the Indian Divorce Act (Amendment ) of 2001 may be after the book Dissolution of marriage contract filed by husband or wife in district court on grounds that defendant had committed adultery since marriage.”

Previously, only men Christians could file for divorce on the basis of adultery. For a Christian woman to challenge adultery, it must be incest or some other reason, such as vandalism or cruelty.

This change has been made by the landmark Ammim v. Indian Union.

A special committee of the Kerala High Court has ruled that the grounds for adultery are much more favourable to husbands than wives.

In Muslim law:         
Section 2(viii)(b) of the Muslim Marriage Code states that a man can be a woman of disrepute or lead a life of notoriety, as no law under Islamic law emphasizes the relevant clause of adultery as a basis for seeking divorce. When dating a woman, he states: , it amounts to her cruelty to women and he can sue her, which amounts to her
adultery.
The concept of Liang is widespread in Islamic law. Not very popular in India but brings interesting her concept. If a man accuses his wife of infidelity, a woman can sue her husband for dissolution of the marriage. Of course, if the husband retracts such a statement, the wife's claim no longer exists. A wife who is not guilty of adultery can use this concept, but a wife who has actually committed a crime cannot. In a separate ruling, the Supreme Court of Allahabad31 ruled that if a man himself committed adultery and then prosecuted his wife, it was sufficient grounds for a divorce on grounds of cruelty. Judicial separation is not recognized by Islamic principles

CRITICS VIEW ON THE LAW

1. This section does not come under the view of article 15(3)

The framers of the Constitution firmly believed that in the 20th century no one would be divorced on the basis of sex. However, it is clear that the legislator explicitly applies sexual segregation under the guise of protective discrimination against women. The unusual treatment of women under Article 15(3) should be limited to circumstances where certain advantages or disadvantages must be identified by separating women from men.

The judicial provisions of the Indian Constitution are shrouded in the premises of the US Constitution, the basis of which is not only an abuse of the established fundamental norms of similar laws but also of rights. It also violates the US Constitution.

The S. Supreme Court said that to segregate a particular sex as a class is to negate the Constitution's reservation to the guarantee of equality when the two sexes tend to be balanced. "Preferences to women based on 'ease of administration,' whether positive or negative, must be removed as discriminatory and unconstitutional."

Apparently the framers of the Constitution intended to include this statement to defend, secure, or encourage the advancement of women and expect it to be retained to enable the support or promotion of crime. The court ruled that adultery between men and women is prohibited as stipulated by law .

1. Violative of article 14

Section 497 of the Indian Penal Code, which defines adultery, does not allow a woman whose spouse has an adulterous relationship with a significant other to be prosecuted, but does allow a man whose husband has committed adultery for his half. It is largely one-sided because The law considers women to be victims of wrongdoing, not perpetrators. Exactly this victim's idea stems from the psychological belief that they believe they are powerless, powerless to overcome the situation and dependent on the need for external agencies to get out of it.
The Honourable Supreme Court held that society should punish “outsiders” who invade the marital home and cause violations of the sanctity of the marital bond by establishing illicit relationships with spousal subjects. judge.
Not the woman who made the mistake could be punished. It does not mean that two spouses are armed to fight each other with the weapons of the criminal law.”54 In any event, the court held that while a spouse is of no help in criminal law, a similar rule applies to her husband. It overlooks the point that it is given. A woman cannot be prosecuted if she is unmarried. This can be seen as a violation of the principle of natural justice so important to our Constitution.

CONCLUSION

The controversy surrounding the adultery law in India is complex and multifaceted. On one hand, proponents of the law argue that it serves as a deterrent against extramarital affairs and protects the sanctity of marriage. On the other hand, critics argue that the law is archaic and discriminatory, and infringes upon individual rights and freedoms.

In 2018, the Indian Supreme Court struck down the adultery law, deeming it unconstitutional and a violation of the right to equality and privacy. The Court ruled that adultery should be treated as a civil wrong, rather than a criminal offense.

However, the decision was not without controversy. Some argued that the ruling undermined the institution of marriage and would lead to a breakdown of social norms. Others applauded the decision as a step towards greater gender equality and individual freedom.

Ultimately, the controversy surrounding the adultery law reflects larger debates in Indian society around issues of gender, morality, and individual rights. While the Supreme Court's decision has resolved the legal question, the social and cultural implications of the controversy are likely to continue to be debated for years to come.

[1] The Indian Penal Code, 1860 (1860), s.497

[2] The Married Women’s Property Act, 1874

[3] Law Commission of India, “42nd Report” (June, 1971)

[4] Law Commission of India, “156th Report” (August, 1997)