Decriminalisation of adultery

Source: The Hitavada      Date: 04 Oct 2018 11:13:55


By Dr L S Nigam,

Through the instrumentality of judicial activism, Hon’ble Supreme Court of India is playing a pivotal role in bringing about significant and desirable changes in the society. Those Victorian-aged-laws, which have become archaic in the eyes of the apex court, are being scrapped.
In this regard, recently a five-judge Constitution bench of the Supreme Court ruled to struck down, as unconstitutional, Section 497 of Indian Penal Code (IPC) which dealt with adultery.

The apex court regarded this 158-year-old colonial era law as irrelevant in modern era, blatantly gender-discriminatory and violating Articles 14 and 21 of the Indian Constitution.
According to Section 497 of the IPC, which now stands scrapped, a man could be punished for having a sexual relationship with a married woman without the consent of her husband, and only the husband had the right to initiate criminal proceedings against his wife’s adulterous lover, thereby treating women as their husband’s property. The petitioner, Joseph Shine, an Indian residing in Italy, wanted Section 497 of the IPC to be made gender neutral. Therefore, the court also abolished Section 198(2) of the Criminal Procedure Code (CrPC) under which only an adulterous woman’s husband could complain against adultery and prosecute her adulterous lover, though she could not be punished. Moreover an adulterous man’s wife had no such right against the adulterous women.

The Supreme Court’s aforesaid landmark judgement was aimed at promoting the interest of women, giving them ‘sexual autonomy’ as they are not ‘chattel’ of their husband, ensuring dignity of women and gender neutrality.
The intention of Hon’ble Supreme Court has always been bona fide and undoubted, to pave the way for the creation of modern and orderly society. But, I have few apprehensions that the judgement may have certain legal, moral and social repercussions. After the judgement of the Hon’ble court, now a husband cannot knock the doors of the court for taking criminal action against his adulterous wife and wife’s adulterous lover. Similarly, a wife will not have a legal right to file criminal case against her adulterous husband and husband’s adulterous lover. Moreover, now any random married man and women, subject to their consent, can establish physical relations with each other, and that will not be illegal, which in my opinion is a bit hard to digest!!

Having said that, the court had observed that adultery could be ground for dissolution of marriage/divorce and abetment to suicide. One of the far-reaching effects may be that the frequency of the filing of divorce case in the court of law can get increased, which may enhance the woes of women in the society. Conjugal infidelity and extra-marital affairs may prevail unabatedly, which can undermine the sacred institution of ‘marriage’.

As per Hindu traditions, marriage is called as ‘vivaah sanskaar’, while in Muslims, marriage is a contract and amongst Christians, it is considered that God decides marriage. Mere ‘consent’ between any ‘other man’ and woman is necessary for establishing sexual relationship, and is now no longer a criminal offence, but it may subvert the very concept of marriage which is considered as a permanent and a blessed bond between a couple. I believe that until and unless, a married couple has taken divorce from the court of law, extra-marital affair cannot be justified at any cost. It is sheer unethical, illegal and immoral practice and not at all in consonance with the ethos of magnificent Indian culture. Furthermore, few contentious questions like ‘who is the biological father of a child’, property feuds, rights of illegitimate child etc. may come to the fore very frequently.

Even in the ancient Hindu scriptures, a person guilty of adultery was being punished in the harshest ways. In ancient Indian society, adulterous males were forced to embrace an artificial lady made of Iron, which was done red-hot by fire. This mode of punishment was called as “soormi”.

It is noteworthy that in 1985 case of Sowmithri Vishnu v/s Union of India, a four-judge bench headed by then CJI YV Chandrachud of the Supreme Court upheld the constitutionality of Section 497 said, “It is commonly accepted that it is the man who is the seducer and not the woman. This position might have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately...” Therefore, I want to say that could the Hon’ble Supreme Court have avoided adjudicating on this controversial sociological issue and let the Union Parliament make desirable alterations in the adultery law?

It is argued that in most of the developed countries, adultery has been decriminalized long ago. But I want to make a point that, the moral values, belief system, practices, social securities, social framework, historical, political, sociological, economical and cultural development of those countries vis-à-vis India is different altogether. So, it would be unfair to compare India with those countries regarding adultery law.

After the verdict made by the apex court, few questions needs to be answered. Is the ‘decriminalization of adultery’ detrimental for the Indian culture and repugnant with the age-old Indian values? Will ‘decriminalization of adultery’ effectively promote the dignity of women? And lastly, dignity of women is a sacrosanct concept, and by allowing women to have sexual autonomy, will women empowerment be ensured and guaranteed?
(As told to Dr Abhinav Mishra)
Dr Nigam is acting Vice-Chancellor of ICFAI University (Raipur)