Adultery : No More A Felony
Adultery : No More A Felony
- Joncy Lakhani & Jaydeep Findoria, Students of Parul Institute of Law, Parul University, Vadodara
Panoramic Introduction
When we talk about India, it has been seen from time immemorial that Indian culture has always believed in the term, ‘liberation’ . Kings from the various dynastieswere having various relationships with many women inclusive of the women not married to him. The mere reason why it could not be considered as an offence is the consent which itself defines the willingness of the person. But seeing from the other perspective as every coin has two sides , on the ground of morality it could be considered as phoney thing. In nutshell, it all basically goes with the human understanding proficiency indeed.
Legal Frame of Reference
On 27 September 2018, the Hon’ble Supreme Court, decriminalized a 158-year-old law of adultery Section 497 of Indian Penal Code and Section 198 of Criminal Procedural Code ,establishing that wife is not a husband’s property anymore and holds the equal position in the society as a male do. Erstwhile, any man who had consensual sex with married women, not her wife and without her husband’s approval was said to be committed a crime.
The law was challenged by, Joseph Shine a 41-year-old man living in Italy, he filed petition in the Supreme Court to cut-off the law which discriminates against men and women, and violates Article14, 15(1) and 21 ofthe constitution. Adultery cannot be committed without a woman’s consent, yet the Section 497 burdens men alone for the offence, “marriedwomen are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said. This made 5 judges bench of the Supreme Court led by Former Chief Justice Dipak Misra to give the unambiguous decision of scrapping off this section and CJI Misra said adultery can be a ground for divorce but not a criminal offence, and further Justice Khanwilker shared a same prospective and added that adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if evidence produced, it could be treated as an abetment to suicide. The bench in whole held that adultery can be treated as civil wrong for dissolution of marriage, also while delivering the judgment, the Supreme Court said that unequal treatment of women invites the wrath of the constitution.
Encroachment of Dignity of a Woman and Article 21
Adultery fell afoul of Article 21 Right to life and personal liberty as dignity of the person is a facet of Article 21. Section 497 essentially retrenches the dignity of a woman which she is entitled to have by creating solitary distinctions based on gender stereotypes which devise a sink in the individual dignity of a woman.
Encroachment of Right to Privacy
Sexual privacy is a natural right which is given recognition under the Constitution, to handcuff the freedom to choose the sexpartner and criminalize the consensual relationships and extra-marital affairs is an encroachment of this right . Justice Chandrachud also in the judgment of this case said that a woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage cannot be curbed, however, Justice Indu Malhotra said adultery is moral wrong contrasting it with Chandrachud view that each partner in marriage don’t mortgage their sexual autonomy to each other. But she the lone woman judge in the 5 judges’ constitutional bench also termed Section 497 as unconstitutional and discriminative in nature.
Clinching Remarks
As rightly observed by the then CJI Dipak Misra, the law of adultery was based on a discriminative basis as it assumes one of the parties of adultery as a victim and the other as a criminal.Considering the aspect of ‘consent’, it can be said that the law laid down that the relationship of a woman with other married persons depends on the consent of her husband. This means that a woman can sleep outside her marriage with the consent or connivance of her husband. This is further lying down that the husband can control the sexuality of his lawfully wedded wife. By striking off Section 497 of Indian Penal Code, the Supreme Court assured the women of the country that no one can come in their way of dignity and empowerment. And how the society perceives this and how correct is this in a moral sense should be outside the purview of this law. In the eyes of law, it should just be two adults who had consensual sexual intercourse. Further, there should be no confusion between personal laws and community laws, because when it comes to legalizing community laws they are done so considering the moral fabric of the society and the same is not true for personal laws.Critics also viewed it with negative connotations that the validity of this judgment is merely immoral as marriage is an important aspect for the society.
In the end, it can be viewed as something which places a reasonable restriction, which means that there are valid limitations on sexual autonomy.Hence, it can be concluded that the legal system should not regulate whom one should sleep with but rather regulate the process of separation if one of the two partners violate the sanctity of marriage. Moreover the criminalization of broken trust in a marriage neither leads to a couple coming back to a blissful way of life nor does it change the social behavior of the society. And henceforth, Extramarital Sex is not an offence in India anymore. Saving of marriage totally depends upon the individual morality as moral aspects are very divergent amongst diverse cultures as well as mentalities of being liberal. It is important to have discernment that such perspectives are varying from person to person due to strong subjectivity of proceeding.
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References :-
Joseph Shine v. Union of India, SC 2018
