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Section: C

Category: Legal Essay

Paper Code: LE-AS-02

Page Number: 392 - 397

Date of Publication: February 10, 2021

Citation: Aadarsh Kumar Shrivastava, Adultery was Never a Crime: It is a Moral Wrong, 1, AIJACLA, 392, 392-397, (2021),

Details Of Author(s):

Aadarsh Kumar Shrivastava, B.A.LL.B. 10th semester, Government New Law College Indore MP

ABSTRACT Adultery was a crime and punishable offense in India a few years back but through the landmark judgment of Josheph Shine v. U.O.I. the Supreme Court has passed a landmark judgment and decriminalized it. This judgment is indeed a social justice for all the Indians and there was a dire need for its decriminalization because of the gradual degradation of the social status of women. Adultery makes the women as property of their husband and their consent was not important legally. This judgment is a milestone for upgrading women in society. Adultery is a mortal sin and no one can deny this fact but criminalizing someone for having consent full sex is wrong and is also somewhere discrimination of fundamental rights. This article aims to justify why adultery was a moral wrong and not an offense through various judgments and statements. KEYWORDS Adultery, Decriminalization, Hammurabi-Codes, Fundamental rights, and Offence

INTRODUCTION In our daily life, we more often hear adultery from our neighbors or relatives in the form of gossip or on the news channels. Although the Supreme Court passed a judgment against adultery and nullified it as a crime, we still have a general perception that adultery is a heinous crime against society and is a sufficient basis to destroy the family. Even this view is supported by many jurists, thinkers, and philosophers. Have we ever wondered whether it was a crime or not? The history and related laws of adultery are older than centuries and are traced from Hammurabi codes where adultery was legally wrong. The adultery was used as a legal ground for the first time in the matter of divorce by King Henry VIII of England against his second wife Anne Boleyn, by making charges of adultery, incest, and conspiracy against the king. At her trial, she was found guilty[1] and was subjected to behead.

ADULTERY IN INDIA Hunger and sex were the prime concern of man in the primitive era and there were no regulations for it. But later on, social orders were made for the establishment of an ideal society based on the sociological theory of mankind. And when the sexual relationships were regulated in the civilized society through sacred sacrament-‘marriages’, many sexual offenses were evolved such as prostitution, adultery, polygamy, etc. Before the codification of penal laws in India, Lord Macauly was not in support to add adultery as an offense in the draft of 1837 because it is a personal civil wrong between husband and wife but later on, it was added as an offense against the state.[2] In India adultery was a criminal wrong because according to paradoxical concepts, the women were deemed to be the lifetime partner of a man as property and were forced to maintain and keep up the relationship with her husband irrespective of her desire. The Indian primitive laws changed the conception of adultery and declared it as a sin. In India, everyone is bound by the religious customs and principles and the major religions of the country prohibit and condemned adultery. In Apastamba Dharmsutra, adultery was a punishable crime based upon the caste of man and woman. Hinduism and Christianity strictly forbid sexual and adulterous relationships outside the marriage. In Muslim culture, Zina is prohibited by the Holy Quran. These religious customs are the source of codified adultery laws.[3]

ADULTERY IN PENAL LAWS According to Section 497[4] of the IPC, when a man, along with the wife of another man, shall have sexual intercourse without consent or connivance of such another man with a belief or knowledge that she is the wife of such another person, and such sexual intercourse does not fall under the category of rape then he will be held guilty 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 and whereas the wife shall not be punishable neither as wrongdoers nor as an abettor of such offense. It inference that there is no life of woman out of her matrimonial life and she can’t take decisions according to her own will without the consent of her husband. In India, adultery is an offense by a man against a husband or wife with whom he had sexual intercourse. The Indian penal law regarding adultery was century-old of 1860. Adultery was non-cognizable and compoundable offense under section 497 of the IPC and to constitute the crime of adultery there must be the following essentials- o There should be sexual intercourse between men and women out of wedlock. o There should be consent of both o There is no consent of the husband of the woman for such intercourse. o The aggrieved husband has made a complaint. In the present context, there was a dire need for decriminalization of adultery. The apex court commenting on the balance between an individual sexual autonomy vis-à-vis societal moralities stated that- “the society is changing into one where the private interest of sexual autonomy is put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals.”[5]

WHY ADULTERY WAS NOT A CRIME? According to Indian Penal Law adultery was a sexual offense, but in every case why offender was only a man not a woman too? Why she was treated like property of her husband which is snatched or stolen by that offender for a day/night, without the consent of her husband? Adultery was contradictory to the fundamental rights of women given under the Constitution of India from the day it was added in IPC. 1. Because according to article 14 of the Constitution of India[6], both male and female are equal on one side as article 14 of the constitution states that there is equality before the law and equal protection of laws but on the other side under section 497 of IPC women is bound to take the permission of her husband to choose what she wants or to fulfill her desire. 2. Because according to article 15[7] of the Constitution of India, there should be no discrimination on basis of sex but in the matter of adultery there are 2 kinds of gender discrimination i.e.– · During sexual intercourse, there was the consent of both males and females and they both are major and in a sound state of mind to make a decision. Then why only the male or man who makes sexual intercourse is liable for punishment and not that woman. Even the woman is not penalized for abetment too. Why? · The status of man is irrespective, means if any married man has made a sexual relationship with any widow or any unmarried woman out of wedlock without knowledge of his wife; was not a crime of adultery. And there is no relief for the wife except the divorce on grounds of adultery. 3. Because according to a wide interpretation of Article 21[8] of the Constitution of India, whereas, no person shall be deprived of his life and personal liberty, it is the fundamental right of everyone to live and grow with dignity, liberty, and freedom against every kind of restriction and restraints.

DECRIMINALIZATION OF ADULTERY In the latest landmark judgment of Joseph Shine v/s Union of India, the Supreme Court of India held the adultery under section 497 IPC and section 198 CrPC unconstitutional and decriminalizes it as it was a discriminatory law against women. The Supreme Court stated that the law is pro-women but, it is -anti-women law in a grave ostensible way. As if with the consent of the husband, the wife can be subjected to someone else desire is not Indian morality. The former Chief Justice of India, Deepak Mishra head of the constitutional bench stated “It is time to say, the husband is not a master” and quoted the proverb of John Stuart – “Legal subordination of one sex over the other is wrong in itself”.[9] Supreme Court has recognized sexual relationships as a private and natural right, protected under the constitution. In a democracy, there is assurance of fundamental rights and adultery violates such fundamental rights under the guise of saving matrimonial relationships. The sexual relationship outside the marriage by any of the spouses is the cause of divorce and devastation of matrimonial life but actually, it is not a cause, but a consequence of pre-existing disruption of matrimonial tie. It should be used as a ground for the divorce between the spouses but including state into the personal matter of spouse and criminalizing someone for making consent-full sexual intercourse with someone outside the marriage was always illegal and unconstitutional. Everyone has the right to privacy and the right to choose under Article 21 of the constitution to make decisions by own without the interference, consent, or permission of the husband. Justice Chagla of Mumbai High Court made an observation for adultery in the matter of Yusuf Abdul Aziz v/s State of Bombay[10] and stated that- “It may be argued that Section 497 should not find a place in any modern Code of law. Days are passed, we hope, when women were looked upon as property by their husbands.” While recognizing that marital infidelity is immoral and unethical, the apex court stated that love and sexual life were intimate concerns and they should not be made subject to criminal law.[11]

ADULTERY IS A MORAL WRONG Adultery is indeed a moral wrong, as the marriage ceremony is a pure and trustworthy relationship between husband and wife and it is always a sin to have sex with another person outside the marriage, betraying trust and love. It is always wrong and unfair to deceive a spouse for sexual pleasure because using a person for sexual pleasure and fulfilling desires is not less than prostitution and it violates the moral standard of marriage as it was stated by Alan Soble in Philosophy of Sexuality that one person’s agreeing to have sexual relations with another person when the former has no sexual desire of his or her own but does want to please the latter might be an act of supererogation, and rape and incest are commonly thought to be morally wrong[12]. Marriage is a relationship between mature and profound love, companionship, and caring. Marriage is a promise to have the best relationship with each other, which also includes abstaining from having sex with any other person outside the wedlock. This is a dark side of human rights because it is the fundamental right of the person on one side but it hurts the feelings and emotions of the partner on the other side. Getting cheated is one of the worst feelings in the world. It affects the partner psychologically and those who are emotionally weak may feel hurt, pain, stress and may experience loss of trust, even from closure ones. Suffering from loss of emotions leads to anxiety, bipolar - disorders, depression etc. and may also result in suicides and self-harms. In the matter of Sachindranath v/s Banmala,[13] the learned judge stated that- “Unchastity on the part of a woman and also sexual intercourse by a man with a woman outside wedlock are sins against the ethics of matrimonial morality in this country”.

CONCLUSION Adultery was never a crime and treating women as chattel or property of husband was unlawful and was always against the fundamental human rights. Although the apex court has declared the adultery laws unconstitutional but millions of peoples still believe it to be a criminal offense rather than a moral wrong. It is time to stand with women against the violation of their fundamental rights because although the woman had so-called rights and liberty but they are still forced to follow her husband and are considered as the property of her husband.

[1] Pia Catton, How Anne Boleyn Lost Her Head, (Sep. 2020, 19, 02:50 PM), [2] Tejaswi Pandit, Adultery S. 497 IPC and S. 198(2) CrPC (2019), (Sep. 2020, 22, 08:12 PM), [3] Dhananjay Mahapatra, why was adultery law enacted in 1860, why it had to go now, Times of India, (Sep. 2020, 22, 10:20 PM), [4] Indian Penal Code, (No. 45, Act of Parliament, 1860 India), Sec.497. [5] Joseph shine v. union of India AIR 2018SC1676(India). [6] Constitution of India 1950, Art.14. [7] Constitution of India 1950, Art.15. [8] Constitution of India 1950, Art.21. [9] Michael Safi, Adultery is not a crime, India's supreme court rules, (Sep. 2020, 19, 09.38 PM), [10] Yusuf Abdul Aziz v. State of Bombay AIR1951 BOM470 (India). [11] Joseph shine v. union of India AIR 2018 SC1676(India). [12] Alan Soble, Philosophy of Sexuality: Moral Evaluations, (Sep. 2020, 23, 08:23 PM), [13] Sachindranath v. Banmala AIR 1960CAL575 (India).

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