Decriminalization Of Adultery

In a landmark judgement in Joseph Shine vs. Union of India case, the Supreme Court struck down Section 497 of the Indian Penal Code that criminalizes adultery as well as Section 198 of Criminal Procedure Code which deals with the procedure for filing a complaint for the offence of adultery, terming both these provisions as “unconstitutional” as it is violative of Article 14 (Right to Equality) and Article 21 (Right to life and personal liberty).

Adultery means “voluntary sexual intercourse between a married person and a person who is not their spouse”. Section 497 of Indian Penal Code mandates that whoever has sexual intercourse with wife of another man, without the consent of that man, is found guilty of the offence of adultery andshall be punished with a term which may extend to five years or with fine, or both.

• The law has been criticised over the years for being archaic. Some of the reasons include:
• The law is gender biased as it allows only a married man the right to invoke Section 497 against another man having relationship with his wife. A woman with a similar grievance cannot approach the court to seek justice over adultery committed by her husband.
• The law does not penalize a married man committing adultery with a single women or a widow.
• The law considers the women committing adultery with another married man as a victim and not a guilty party.
• The law is based on the Doctrine of Coverture which believes women to be the personal property of her husband and after marriage she loses her individual and legal rights. This is violative of fundamental rights provided to each and every women in the Indian Constitution.
• Provisions of the law, which attaches criminality to infidelity has been found to be violative of the Right to Privacy.
• The law creates distinction between consent given by a married woman without her husband’s consent and consent given by an unmarried woman.

Even after the Karnataka government passed the Devadasis (Prohibition of Dedication) Act in 1982, the rules to administer the law in society was not issued. This has resulted in the practice of devadasi system (dedicating young girls to temples as an offering to appease the gods) becoming more prevalent not just in Karnataka, but it has also spread to neighbouring Goa. Recent study on the Devadasi system has revealed some disturbing aspects:

• Special children, with physical or mental disabilities are more vulnerable to be dedicated as Devadasis
• Under Reporting of cases pertaining to this custom even though it is highly prevalent in the society, with only four cases filed between 2011 and 2017.
• Recent legislations like the Protection of Children from Sexual Offences (POCSO) Act 2012, and Juvenile Justice (JJ) Act of 2015 have not made any reference to devadasi system as a form of sexual exploitation of children.
• State’s failure to enhance livelihood sources for weaker sections of society fuels the continuation of such practice.

• Recognizes the fact that the law creates unreasonableness class between men and women by punishing only one gender.
• Supreme Court observed that the law was archaic and was against principles of constitutional morality.
• Recognizes women’s autonomy, dignity and her equality in public sphere
• Reduces the archaic impact of patriarchical mindset in India, that is recognizes that women is not the personal property of her husband.
• Court observed that if an aggrieved spouse ended her life because of her partner’s adulterous relationship, it could be treated as an abetment to suicide.
• Recognizes the fact that the law gives a married man the right to blame an outside person for breakdown of his marriage without looking at the inadequacies in their own relationship.

• The argument that the judgement undermines the “sanctity of marriage” needs to be pondered upon by the state legislature and Parliament
• Observations by Delhi Commission of Women (DCW) that the judgement gives an open license to commit adultery needs to be debated on public forum.
• Judiciary’s proactive role in addressing regressive laws, points to the laxity shown by legislature in doing their duty. This does not bode well for Indian democracy.
• The legal system should not regulate who one sleeps with. It should only regulate the process of separation when one or both the partners violate the sanctity of a marriage. Moreover, the criminalization of broken trust in a marriage neither leads to a couple settling down again to a blissful life nor does it alter the social behavior of the society. This basic fact needs to be kept in mind.