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Polity & Governance
Mahesh

16/11/23 08:43 AM IST

What is Adultery?

In News
  • The Parliamentary Committee on Home Affairs has suggested that adultery should be re-instituted as a crime in the Bharatiya Nyaya Sanhita (BNS), 2023, the proposed law to replace the Indian Penal Code (IPC), 1860.
Legal Position of Adultery
  • Until 2018, the IPC contained Section 497, which defined adultery as a criminal offence that attracted up to five years in prison, or a fine, or both.
  • However, only men could be punished under Section 497, not women.
  • The section read:  Whoever has sexual intercourse with a person 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, is guilty of the offence of adultery… In such case the wife shall not be punishable as an abettor.”
  • This was contrary to both the common understanding and the dictionary definition of adultery, which is simply voluntary sexual intercourse between a married person, man or woman, and someone other than that person’s current spouse or partner.
  • In Joseph Shine vs Union Of India (September 27, 2018), a five-judge 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, unanimously struck down Section 497 of the IPC on grounds that included discrimination.
Recommendation
  • The 350-page report on the BNS, 2023, which was adopted by the Committee, said that adultery should be reinstated as a criminal offence, but it should be made gender-neutral — that is, both men and women should be punished for it.
  • The Committee recommended: “…This section only penalised the married man, and reduced the married woman to be a property of her husband… 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.”
  • The report has argued that Section 497 was struck down on grounds of discrimination, and making it gender-neutral would address this deficiency.
Section 497
  • The discriminatory nature of Section 497, and its “manifest arbitrariness” in punishing only men for adultery, was just one of the grounds on which the court had struck down the provision.
  • Section 497 was violative of Articles 14, 15, and 21 of the Constitution (which protect the fundamental rights to equality, non-discrimination, and life respectively).
  • The husband is neither master of his wife, nor does he have legal sovereignty over her — and that “any system treating a woman with indignity … invites the wrath of the Constitution.
  • Section 497 was “replete with anomalies” — for instance, an adulterous relationship would not be an offence if the married woman had her husband’s consent. Also, a wife could not prosecute her husband or his lover, even if they committed this offence.
  • The court also struck down Section 198(2) of the CrPC to the extent that it applies to the offence of adultery under Section 497.
  • Section 198(2) CrPC says that in certain cases, courts can take cognizance of a matter only if approached by an aggrieved party and, in cases of adultery, only the husband shall be deemed as “aggrieved”.
Source- Indian Express

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