Decriminalisation Of Adultery

Prof G.S. Bajpai & Priya

7 Feb 2018 2:45 PM GMT

  • Decriminalisation Of Adultery

    The decisions to criminalize or decriminalize in India do not seem to be based on the established principles in the realm of criminal jurisprudence. It therefore leads to a variety of confusion and most discussion in this regard remain centered around personal opinions and conjectures. In order to test the proposition, this paper focusses on the initiative of the Supreme Court to...

    The decisions to criminalize or decriminalize in India do not seem to be based on the established principles in the realm of criminal jurisprudence. It therefore leads to a variety of confusion and most discussion in this regard remain centered around personal opinions and conjectures. In order to test the proposition, this paper focusses on the initiative of the Supreme Court to decriminalize adultery in certain terms.

    Adultery, said Vladimir Nabokov, “is a most conventional way to rise above the conventional.” It forces one to relook the assumptions surrounding sexual exclusivity as the evil nature associated with adultery mainly arises from regressively traditional ideas of betrayal. But in today’s world, adultery practiced openly, with the consent of all concerned, stands on different footing.

    The provision of Adultery as defined under S.497 of the IPC seeks to punish only men for adultery and treats women involved in the crime as victims and defines the offence of Adultery and creates a criminal sanction against a man from having sexual intercourse with someone else’s wife without her husband’s consent[1]. This provision which seeks to morally police the personal marital decisions of the people has continued without any progressive amendments since it was first drafted by Macaulay in 1860. It has long remained under the scanner and efforts have been made for its reconsideration.

    This recently came to light when the Supreme Court in Dec 2017 in the case of Joseph Shine v UOI[2] issued notice to the Centre on a petition challenging the constitutional validity of the Adultery Law. A three-judge Bench suggested that the provision which prescribes a jail term of up to five years or fine or both, shall be declared unconstitutional for “being unjust, illegal and arbitrary and violative of citizens’ fundamental rights.” A close look at the language employed in the Section reflects that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established.

    Viewed from the said scenario, the provision really creates a dent on the individual identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This is tantamount to subordination of a woman when the Constitution confers equal status on them. In fact, such criminal sanction on adulterous acts finds its roots in the conflict that exists between: Societal Morality saturated with the patriarchal ideas of subordination of women and resultant inequality and the Constitutional Morality Not only that, this provision faces challenge at two levels as it is considered not only being in violation of Art- 14 as being against the Right to Equality[3] but also as being discriminatory on basis of sex under Art-15 of the Constitution.

    The gender discrimination aspect kicks in as S.497 of the IPC which makes it a criminal offence for a man to have a sexual relationship with a married woman, grants immunity to the woman involved. Here though the act is carried out with the consent of both the adults, yet only one of the parties is prosecutable while the women enjoy absolute immunity.

    Further, there also exists a disparity of the right even under S.198(2) of the CrPC which denies a wife the right to prosecute her adulterous husband, reserving this power only for the husband of the woman involved in the relationship[4]. So, only the husband of the woman involved enjoys the right to prosecute while the wife of the involved man has no resort to take any action.

    In short, the law states that only a man can file a case of adultery and that too against a man with whom his wife has allegedly slept with. So, in essence, a woman can neither file a case of adultery, nor can she be prosecuted on the ground of adultery. This cuts gender discrimination both ways, that is, it discriminates against men and women.

    Art.15 also stands violated[5] as such penal provision not only creates a categorisation among the two sexes but in fact metes out unequal treatment amongst the males as well. A married man who has an affair with an unmarried woman is not prosecutable under the existing adultery law while the same man if indulges in such activity with a married woman would be at the risk of facing a prosecution. There exists an inequality in the treatment being mete out depending upon the marital status of the woman.

    Further, it also indirectly discriminates against women by holding them to be the "property" of their husbands, for it does not consider adultery an offence if done "with the consent of the husband of the woman". It is perceivable from the language of S.198(2) that the fulcrum of offence is destroyed once the consent of husband is obtained. Effectively, the provision seeks to create a dent on the independent identity of women and in fact amounts to institutionalized discrimination.

    The law on Adultery is highly discriminatory and unconstitutional as well when pitted against various provisions like Art-14 and 15 of the Constitution. It also casts attacks a person’s Right to Privacy as guaranteed under Art-21[6]. Sexual relations in our society are generally considered to be private matters. However, though the state does not wish to interfere in marital rape, it enforces restitution of conjugal rights through its courts and regulates adultery through criminal sanction.

    Clearly the boundary of the private is not sex, but marital sex. Sex outside marriage, such as in adultery or sex work, is denied the same level of privacy protection as sex within marriage. A major ground of challenge that the law on adultery faces is that it is prima facie unconstitutional as being violative of the Right to Life, Liberty and Privacy as guaranteed under Art-21 of the Constitution.

    The question that comes to forefront is that when this piece of legislation is so discriminatory in nature, then it must have some rationale attached to its drafting which has ensured its continuance for the last century and a half. To understand the object behind such legislative piece and evaluate its relevance in the contemporary times, one needs to scrutinize the legislative intent of Macaulay behind its drafting.

    This provision was drafted by Macaulay based on an erroneous presumption that women are the property of the men and the husband had the sole right over the body of his wife. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act ceases to be an offence. So, the idea was not to criminalize physical relations outside marriage but rather to put a bar on any infidelity by the wife without the consent of her “owner”.

    Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass. There is no doubt then that this section treats a woman like a man’s chattel.

    Another view is that at the time the enforced law was enacted, polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alones so as to create a sense of security amongst the women.

    However, these basis of evaluation no longer support the criminal nature of the act. Now, Philosopher Joel Feinberg gives us various principles to determine what sorts of conduct may the state rightly make criminal. But critical scrutiny of the penal provision related to Adultery against the various Principles of Criminalization, brings to light the lack of any just legislative intent and its highly discriminatory nature, but also its failure to satisfy any of the Principles.

    Feinberg describes that State interference with a citizen’s behaviour tends to be morally justified only when it is reasonably necessary to prevent harm or the unreasonable risk of harm to parties other than the person interfered with. More concisely, the need to prevent harm (private or public) to parties other than the actor is always an appropriate reason for legal coercion. When tested against the various principles, the results are:

    • Harm to Others: This theory supports that prevention of harm to persons other than the perpetrator is a legitimate purpose of coercive legislation[7]. However, in case of Adultery, the husband of the woman is not being harmed by such act of his wife, rendering it ineffective in reducing any kind of harm to the person other than the actor i.e., the husband. Another justification for such criminalisation is that there should be no other equally effective means at greater cost to other values. However, ascribing it the nature of a civil offence under the Domestic Violence Act as a Mental Torture would solve the purpose more effectively. In fact, its classification as a matrimonial offence, allowing it as a ground of Divorce and Judicial Separation would act a greater deterrent..

    • Offence to Others: Its rationale is that a criminal prohibition is justified only if it is prevent serious offence to persons other than the actor and would be an effective means to that end[8]. However, adultery which is based on the patriarchal notions of morality considers any act of the wife, done without her husband’s consent as an infringement of his right over his property. There is no element of any physical or emotional offence being caused to the husband and does not even prevent any future offence from being committed but rather leads to animosity in the harmonious relation of the husband and wife. Moreover, this provision only considers the possible offence caused to the husband of the adulterous woman but fails to address the offence caused to the wife of the adulterer man.

    • Benefit-to-Others Principle: Joel Feinberg argues in support of a criminal punishment when it is necessary for the production of some benefit for persons other than the person who is prohibited[9]. Non- performance of adultery won’t outrightly confer any benefit on the third party. It is merely grounded in the patriarchal and regressive midset of the society that disallows the woman to exercise her right over her body without the consent of her husband. There is no benefit to her husband being lost by de- criminalisation.

    • Harm to Self: This principle involves addressing the concerns related to self- inflicted harm and finds it basis in the attitude of Legal Paternalism. It is argued that prohibition by way of criminal sanctions is justified only if it prevents any kind of Physical, Psychological or Economic harm to the actor himself[10]. Such sexual activity is done out of volition and does not involve any physical or psychological harm to either of the actors involved. Involving consenting adults, the criminal punishment for the same does not find any justification. An adulterous act finds its basis in the Personal Sovereignty of the individuals who voluntarily assume any and all kinds of risk with full consent, without any scope of counterfeit or coercive force being involved and hence needs to be de-criminalised.

    • Harmless Wrongdoing: This principle covers behaviour that doesn’t actually harm anyone else but still is outlawed. Based on the concept of Legal Moralism, punishment is considered morally legitimate for the state to adopt for the prohibition of certain types of actions that cause neither harm nor offence to anyone, if there are sufficient grounds that such actions would constitute or cause evils of other “free- floating” kinds[11]. Adultery does not find any basis in legal moralism since it does not cause any evil outcome to any individual or the society. If viewed from progressive lenses, it is a matter of choice and doesn’t affect the rights of communities or exploitation to any third party and hence cannot remain criminalised when no harm in being inflicted on anyone.

    In a scenario where Adultery fails to meet any of the broader principles for criminalisation of an act, there is an urgent need to reconsider the archaic and un-amended law that confers unjustified powers on the certain category of men. Society has for a long time now, recognised the need for some amendments in this way of outlook and has struggled to change the criminal nature of this offence. The drive for reformation started with the certain cases coming up before the Judiciary for reconsideration.

    However, each time these laws were challenged before- in 1954, 1985 and 1988, the apex court had refused to quash the provisions, saying a woman in an adulterous relationship was usually the victim and the man the seducer. The legislators also sought to outdo this 1860 provision by incorporating Adultery as a ground for divorce[12], but to no avail. The position under IPC remained the same with it being additionally classified as a matrimonial offence, which later, in 1976, also got qualified as a ground for Judicial Separation.

    Later the 42nd Law Report[13] proposed certain changes and called for making the law on adultery gender neutral, by making it equally applicable to men and women. It recommended removal of the exemption provided for women from being prosecuted and reduction in the punishment for the offence from five years to two years. It suggested that rather than removing S. 497 from the penal code, both the man and the wife should be made guilty as there is no valid justification “for not treating the guilty pair alike”. The recommended section[14] is as follows:

    1. 497 – Adultery – “If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

    But these recommendations failed to materialize and gather consensus, with the continuation of older provision. Then in 2003, the Malimath Committee Report recommended certain measures for revamping the criminal justice system proposing that adultery should be made gender neutral as: “Whosoever has sexual intercourse with the spouse of any other person is guilty of adultery[15]. But, all attempts to replace the existing provision remained fruitless .

    Finally in the mid- 2017, a nine-judge Constitution Bench[16] verdict declared right to privacy a fundamental right under Article 21, stating: “Sexual privacy is an integral part of right to privacy.” Apex court unreservedly held that privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.

    While acknowledging decisional privacy, it upholds the cognitive decisions of every individual including the ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations.Such view renders the provision criminalising sexual intercourse between two consenting and willing adults as being illegal and unconstitutional. The mutual decision of two agreeable adults to participate in sexual activity goes to the very core of the privacy jurisprudence and calls for removal of any restrictions on a person’s decision to participate or not participate in a sexual activity.

    Such fallacy in the argument backing the Adultery Law has been recognised by legislators all over the globe who have now realised the need to do away with this piece of legislation. In the U.S.A., several state laws criminalise adultery[17] while South Korea has decriminalised adultery, revoking a law that punished cheating spouses with up to two years’ imprisonment. In fact, all European nations have decriminalised adultery. While it is not considered a criminal offence in most Western countries, it may still have legal consequences, especially in divorce proceedings.

    It is majorly only the countries governed by the Islamic law, including Saudi Arabia, Pakistan and Somalia that have continued to strictly prohibit “Zina”, or “Fornication outside marriage”[18]. This reflects the nature of Adultery law as being interlinked with the progressiveness of the society. Considering how the societal structure and the value system have gone through rapid changes, there is a need for the decriminalization of Adultery. If not so, it definitely needs reconsideration.

    What is essentially required is changing the regressive perspective and accepting the fact that there can be crimes against men, that men also suffer, and that women can be perpetrators as well. The process of socialization in the Indian society remains to adopt a sexist approach, that we are somehow unable to accept that men can be violated as well. The need of the hour is that the education to our children should be based on recognising the principles of equality and right to all.

    There have been campaigns and movements worldwide for the cause of men. International Men’s Day is celebrated on November 19 every year, from 2007, in response to International Women’s Day[19]. We need to set up a dedicated ministry to safeguard men's rights and welfare or set up a men's commission, similar to those for the women. We, as a society, really need to inculcate Gender-Sensitivity amongst ourselves and develop a feeling of respect and warmth towards the opposite sex. There is a need to realize that upliftment of one section of the society does not require oppression of the other.

    Legally, we need to ensure that gender-neutral language is used in our laws, and both the sexes are equally protected. Laws should not be based on the presumption that only one of the sexes is the perpetrator, and the other, a hapless victim. Strong legislations should be laid against false complainants causing unquantifiable miseries to the innocent victims. In order to establish a gender-just society, we need to recognize LGBT rights as well, because that will ensure both legal justice, and societal inclusion of all communities. Lastly, we need to realize that crime has no gender, and everyone should be deterred from committing it. It inflicts innumerable sufferings upon the victim, and he deserves justice

    Correctional changes are needed in a patriarchal society that has discriminated against women for thousands of years but want the country’s laws to become ‘gender neutral’ and discriminatory against men. Adultery is more of a social and civil offense and depicts a more arbitrary and infidelity of trust not only the spouse but the whole family. Adultery is a consequence of the collapse of faith and conscience in a relationship and requires corrective action rather than penalize. The sanctions imposed by the laws can bring relief to the injured party for a short time, but destroys the sanctity of marriage and family life in the long term ruins.

    The law has considered woman to be a sufferer not as the author of the offence[20]. the community punishes the “outsider” that breaks the wedding and events the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. However, the court misses out the point that the wife has no relief in criminal law though the same provision is given to the husband and in a case where the woman is unmarried the woman cannot be prosecuted altogether.

    This can be viewed as a violation of the principle of natural justice[21]. There is immediate need for reconsideration by either decriminalising the entire act of Adultery or else resorting to alternate channels like ascribing it a Gender Neutral character to do away with the discriminatory nature of the provision and making it inclusive of all sections of the society.

    [1] S.497, IPC 1860

    [2] Joseph Shine v UOI, WP(Crl.)No.194/17

    [3] Art.14, The Constitution of India, 1950, India

    [4] S.198 cl.2, Criminal Procedure Code, 1973

    [5] Art.15, The Constitution of India, 1950, India

    [6] Art.21, The Constitution of India, 1950, India

    [7] Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others. New York: Oxford University Press, 1984

    [8] Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others. New York: Oxford University Press, 1985

    [9] Ibid. n.6

    [10] Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self. New York: Oxford University Press, 1984

    [11] Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing. New York: Oxford University Press, 1988

    [12] S. 13 (1), Hindu Marriage Act, 1956

    [13] Forty-Second Report, Indian Penal Code. June, 1971. Government Of India, Ministry Of Law.

    [14] Id.

    [15] Committee on Reforms of. Criminal Justice System. Government of India, Ministry of Home Affairs. Report. VOLUME I. INDIA. March 2003

    [16] Justice K.S. Puttaswamy vs Union of India, MANU/SC/1604/2017

    [17] The states of Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan, Mississippi, Alabama, North Carolina, South Carolina, New York, Florida, Georgia, Virginia.

    [18] Hector Davies Morgan, The Doctrine and Law of Marriage, Adultery, and Divorce, Oxford University Press, Vol.II

    [19] Celebrated on March 8 of every year.

    [20] Sowmithri Vishnu v Union of India, AIR 1985 SC 161

    [21] Subash C. Kashyap, Constitutional Law of India at 481, (universal Law, 2008)

    Mr G.S. Bajpai is a Professor at National Law University Delhi and Priya is a 2nd Year B.A.LL.B. student, National Law University Delhi.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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