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Polity & Governance
Mahesh

04/12/23 06:48 AM IST

Re-criminalising adultery as a gender-neutral offence

In News
  • Recnetly, the Parliamentary Standing Committee on Home Affairs, examining the three new criminal law Bills set to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act, recommended the criminalisation of adultery but on gender-neutral lines.
Panel recommendations
  • The Committee suggested that adultery be reinstated as a criminal offence, but be made gender-neutral, thereby making both men and women equally culpable under the law.
  • Highlighting the need to protect the institution of marriage, the report stipulates, “..the Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.
  • For the sake of protecting the institution of marriage, this section should be retained in the Sanhita (Bharatiya Nyaya Sanhita) by making it gender neutral.”
  • The Committee also pointed out that the revoked Section 497 of the IPC “only penalised the married man, and reduced the married woman to be a property of her husband”. The proposed change also seeks to address this deficiency.
Legislative history
  • When the IPC was enacted, Hindus had no law of divorce as marriage was considered to be a sacrament.
  • It made little sense to punish a married man for having sexual intercourse with an unmarried woman as he could easily marry her later since Hindu men were permitted to marry any number of wives till 1955.
  • However, with the advent of the Hindu Code, a Hindu man was allowed to have only one wife and as a result adultery became a ground for divorce in Hindu Law.
  • Lord Macaulay, instrumental in the early drafting process of the IPC, was not inclined to make adultery a penal offence, believing that a better remedy lay in pecuniary compensation.
  • In 1971, the Law Commission of India in its 42nd Report deliberated on the benefits of criminalising adulterous conduct.
  • In 2003, the Committee on Reforms of the Criminal Justice System, popularly known as the Malimath Committee, proposed in its report that adultery be retained an an offence but on gender-neutral terms.
  • It observed, “..object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”
Supreme Court Judgement
  • A five-judge Constitution Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra, and comprising current CJI D. Y. Chandrachud, and Justices A. M. Khanwilkar, R. F. Nariman, and Indu Malhotra, in its landmark judgmentJoseph Shine v. Union of India (2018), held that adultery is not a crime and struck it off the IPC.
  • It, however, clarified that adultery would continue to remain a civil wrong and a valid ground for divorce. In 2020, a five-judge Bench led by former CJI Sharad A. Bobde dismissed petitions seeking a review of the verdict for lacking merit.
Legislative overruling
  • The Supreme Court in Madras Bar Association v. Union of India (2021) held that “the test for determining the validity of validating legislation is that the judgment pointing out the defect would not have been passed if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. “
  • In September this year, a division bench of the Supreme Court in NHPC Ltd. v. State of Himachal Pradesh Secretary reiterated that the legislature is permitted to remove a defect in an earlier legislation, as pointed out by a constitutional court, and that laws to this effect can be passed both prospectively and retrospectively.
  • However, the court cautioned, ‘..where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires.’
Source- The Hindu

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