A CRITICAL ANALYSIS OF ADULTERY LAWS IN INDIA BY - KUMAR KANISHK

A CRITICAL ANALYSIS OF ADULTERY LAWS IN INDIA

AUTHORED BY - KUMAR KANISHK,

 AMITY UNIVERSITY, PATNA

Abstract:

"Adultery is a crime of the heart and the laws can never do justice to the emotions involved." - Manju Kapur

Adultery laws in India have been a topic of debate and criticism for several decades. These laws, which are primarily based on Victorian morality, have been criticized for being discriminatory, arbitrary, and archaic. In this paper, we aim to critically analyze adultery laws in India and examine their implications on individuals, society, and gender relations.

We begin by providing a historical background of adultery laws in India and their evolution over time. We then examine the legal provisions related to adultery, including the definition of adultery, the punishment for adultery, and the exceptions to the offense of adultery. We also explore the gendered nature of adultery laws in India and how they disproportionately affect women.  Furthermore, we examine the social and cultural implications of adultery laws in India. We argue that these laws reinforce patriarchal norms and stigmatize women who engage in extramarital affairs. We also analyze the impact of these laws on the institution of marriage and the perception of gender relations in Indian society.

Finally, we propose a series of recommendations to reform adultery laws in India. These include the decriminalization of adultery, the establishment of gender-neutral laws, and the promotion of alternative forms of dispute resolution. We also highlight the importance of changing social attitudes towards adultery and promoting gender equality.[1]

In conclusion, this paper highlights the urgent need to critically analyze and reform adultery laws in India to promote justice, equality, and human rights.

Abstract:

Adultery, gender, laws, India, Equality

History of adultery laws in India

Adultery laws in India have a long and complex history that spans several centuries. In ancient India, adultery was considered a grave offense, and punishments ranged from public shaming to castration or even death. These laws were primarily enforced to ensure the paternity of children and to preserve the institution of marriage.

During the colonial period, British rulers introduced new laws related to adultery in India. The first codified law related to adultery was introduced in 1860 when the Indian Penal Code was enacted. The law defined adultery as sexual intercourse between a man and a married woman who is not his wife, with the knowledge or consent of the woman's husband. Adultery was punishable by imprisonment of up to five years, a fine, or both.

After India gained independence in 1947, the Indian Penal Code was adopted by the new government with minor modifications. However, the law related to adultery remained unchanged, and it continued to be enforced throughout the country. In 1951, the Special Marriage Act was enacted, which allowed couples to marry without religious or social restrictions. However, adultery continued to be a criminal offense under this law.

In 1971, the Law Commission of India recommended the decriminalization of adultery, arguing that it was a private matter that should be left to the discretion of individuals. However, the recommendation was not implemented, and adultery remained a criminal offense.[2]

In 2018, the Supreme Court of India declared adultery to be unconstitutional and struck down the law related to adultery in the Indian Penal Code. The court observed that the law was discriminatory towards women and violated the principles of equality and autonomy. The judgment was hailed as a significant step towards gender justice and the protection of individual rights.

Legal provisions related to adultery

The legal provisions related to adultery in India were primarily governed by Section 497 of the Indian Penal Code, which was in force until 2018 when it was struck down by the Supreme Court. The following were the main provisions of the law:

1. Definition of Adultery: Adultery was defined as voluntary sexual intercourse between a man and a married woman who is not his wife. The law did not consider sexual intercourse between an unmarried man and a married woman as adultery.
2. Punishment: Adultery was a criminal offense punishable with imprisonment of up to five years, a fine, or both. The person who had sexual intercourse with the married woman was considered guilty of adultery, but the married woman was not punishable under the law.
3. Consent of the Husband: The law required the husband of the married woman to file a complaint of adultery against the man with whom his wife had sexual intercourse. If the husband gave his consent or connivance to his wife's sexual relationship, he could not file a complaint of adultery.
4. Exceptions: The law provided certain exceptions to the offense of adultery. If the man had sexual intercourse with the married woman with the consent or connivance of her husband, he could not be punished for adultery. Similarly, if the man had sexual intercourse with a woman whom he believed to be unmarried or divorced, he could not be punished for adultery.

An analysis of Section 497

Section 497 of the Indian Penal Code criminalizes sexual intercourse between a man and a married woman without the consent of her husband, excluding cases of rape. The law distinguishes between consent given by a married woman without her husband's consent and that given by an unmarried woman. It does not punish a married man having sexual intercourse with an unmarried woman or a widow, or even a married woman with her husband's consent. If adultery is committed, the husband can only prosecute the adulterer, not his wife, who cannot be punished even as an abettor to the crime. The section treats the woman as the victim of the offence, but it does not consider a situation where the same married woman has sexual intercourse with multiple persons other than her husband without his consent. The law, as it stands, is insufficient.[3]

In the past, the offence of adultery did not punish women, but instead existed in the law because polygamy was prevalent, and women often had to share their husbands with multiple wives and extramarital partners. Women were considered victims of the offence since they were often deprived of love and affection from their husbands and could be easily persuaded by anyone who offered it. The law was intended to prevent men from having sexual relations with other men's wives and limit their extramarital relations to unmarried women.

However, polygamy has become illegal, and men now have only one wife, making the original purpose of Section 497 obsolete. The personal laws have also changed, giving a more level playing field for both husbands and wives. While women are now given more attention from their husbands, this does not mean they are treated equally in every aspect of society.

If women were made punishable for adultery, it would become a tool for husbands and in-laws to get rid of their wives and daughters-in-law, damaging their social status and reputation. This could make them vulnerable to abuse by other men, and changing the law to make women equally punishable would be like killing their soul and leaving only their body alive. The object of prosecuting for adultery is often to reach a settlement rather than sending the offender to jail.

Overall, the existence of Section 497 has no apparent effect on society, and making women punishable for adultery would be detrimental to their well-being.

Landmark cases related to adultery in India:

There have been several landmark cases related to adultery in India. Here are a few notable ones:

1. Yusuf Abdul Aziz v. State of Bombay (1954): This was the first case that challenged the constitutionality of Section 497 of the Indian Penal Code. The Supreme Court held that the section was not violative of the Constitution and did not discriminate against men or women.
2. Sowmithri Vishnu v. Union of India (1985): In this case, the Supreme Court held that Section 497 of the IPC violated Article 14 (right to equality) and Article 21 (right to life and personal liberty) of the Constitution. The court observed that the section treated married women as the property of their husbands and discriminated against women by holding them solely responsible for adultery.
3. V. Revathi v. Union of India (1988): In this case, the Supreme Court struck down a provision in the Indian Divorce Act, which allowed a husband to seek divorce on the grounds of his wife's adultery, while denying the same right to a wife whose husband had committed adultery.
4. Joseph Shine v. Union of India (2018): This case challenged the constitutionality of Section 497 of the IPC and Section 198(2) of the Code of Criminal Procedure, which dealt with the procedure for prosecuting cases of adultery. The Supreme Court struck down both these provisions, stating that they were archaic and violated the right to equality and dignity enshrined in the Constitution.

These cases have had a significant impact on the legal landscape of adultery in India.

Adultery laws in different countries:

Adultery laws differ across countries and regions. In some countries, adultery is considered a criminal offense and is punishable by law, while in others, it is not illegal or is treated as a civil offense.[4]

In some Middle Eastern countries, such as Iran and Saudi Arabia, adultery is punishable by death, often by stoning. In some countries, such as Pakistan and Afghanistan, adultery is a criminal offense punishable by imprisonment or even death.[5]

In the United States, adultery is not a criminal offense in most states, but it can be considered as grounds for divorce in some states. In some states, adultery can also be used as a factor in determining alimony or spousal support.[6]

In European countries, such as France, Germany, and Spain, adultery is not a criminal offense, and it is not usually considered as grounds for divorce unless it can be proven to have caused harm to the marriage.[7]

In some countries, such as Thailand, adultery is illegal only for women, while men are not prosecuted for it. In other countries, such as China, adultery is a criminal offense, but it is rarely prosecuted.

Overall, the laws and attitudes towards adultery vary greatly across different countries and cultures.

Impact of adultery laws on the institution of marriage and the perception of gender relations in Indian society.

The impact of adultery laws on the institution of marriage and the perception of gender relations in Indian society is a complex issue. On one hand, adultery laws are intended to protect the sanctity of marriage and prevent the breakdown of families. Adultery is seen as a breach of trust and a violation of the commitment made by the spouses to each other. The fear of legal consequences may deter some individuals from engaging in extramarital affairs, which could help to strengthen the institution of marriage.

However, on the other hand, adultery laws may also reinforce traditional gender roles and stereotypes in Indian society. Historically, adultery laws have been primarily used to control the behavior of women and protect the interests of men. Women have often been viewed as passive victims of adultery, rather than as active agents with their own desires and motivations. In some cases, women have even been punished for adultery when they have been coerced or forced into sexual relationships.

Furthermore, adultery laws may contribute to the stigmatization and marginalization of women who are accused of adultery. In Indian society, a woman's reputation and honor are closely tied to her sexual behavior and fidelity. An accusation of adultery can lead to social ostracism and even violence. In this context, the existence of adultery laws can perpetuate harmful gender norms and reinforce the idea that women's sexual behavior is a matter of public concern.

In conclusion, while adultery laws may serve a legitimate purpose in protecting the institution of marriage, they also have the potential to reinforce gender inequalities and contribute to the stigmatization of women. Any reforms to adultery laws in India must take into account the complex social and cultural context in which they operate and strive to promote gender equality and women's rights.Top of FormTop of Form

Series of recommendations to reform adultery laws in India:

Here are a series of recommendations to reform adultery laws in India:

1. Gender-neutral law: The current law only punishes men for committing adultery with a married woman without her husband's consent. This is discriminatory against men and treats women as passive victims. Therefore, there is a need to make the law gender-neutral so that both men and women can be punished for committing adultery.
2. Decriminalization of adultery: Adultery should be decriminalized and treated as a civil wrong. This would remove the possibility of imprisonment for the offender and instead make the offender liable to pay compensation to the aggrieved party.
3. Remove Section 198 of the Criminal Procedure Code (CrPC): This section only allows the husband of a woman to file a complaint for adultery. This is discriminatory towards women and assumes that women are always the victims of adultery. The section should be removed, and any person who has suffered harm due to adultery should be allowed to file a complaint.
4. Allow wives to file complaints: Currently, the law only allows the husband to file a complaint for adultery. This is discriminatory against women and assumes that only men can suffer harm due to adultery. Wives should be allowed to file complaints against their unfaithful husbands and their adulterous partners.
5. Punish the adulterous partner: Currently, only the man who commits adultery with a married woman can be punished, but the woman who commits adultery with a married man cannot be punished. This is discriminatory against men and assumes that women are not capable of committing adultery. Both parties should be punished for committing adultery.
6. Preserve privacy: In cases of adultery, it is essential to preserve the privacy of the parties involved. The media should be restrained from publishing the names of the parties involved to prevent any harm to their reputation.
7. Educate the public: There is a need to educate the public on the harmful effects of adultery on individuals and families. This could be done through public awareness campaigns, school education programs, and counseling services.

These recommendations would help make adultery laws in India more just and equitable. They would help ensure that both men and women are treated equally under the law and that the privacy of the parties involved is protected.

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1. [1]  Bureau, ABP News. "Supreme Court quashes Section 497, says 'Adultery not a criminal offence'". Retrieved 27 September 2018.

[2] https://thelawmatics.in/history-of-adultery-law-in-england-and-india/

[3] https://indianlegalsolution.com/article-critical-analysis-adultery/

[4] https://www.business-standard.com/article/news-ians/few-countries-treat-adultery-as-crime-sc-118092701282_1.html

[5] https://www.business-standard.com/article/news-ians/few-countries-treat-adultery-as-crime-sc-118092701282_1.html

[6] https://www.business-standard.com/article/news-ians/few-countries-treat-adultery-as-crime-sc-118092701282_1.html

[7] https://www.business-standard.com/article/news-ians/few-countries-treat-adultery-as-crime-sc-118092701282_1.html