ADULTERY: FROM BEING A PENAL PROVISION TO JUST A GROUND OF DIVORCE

adultery
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About the Author:

Srishti Yadav is a law student of Amity University, Noida.

HISTORY

The adultery law is as old as the code of Hammurabi where it was mentioned in the seventh commandment.  It is considered to be a moral, social and religious wrong. Henry VII used it to seek separation from her wife, Catherine Howard. Thereby, it had a wide application in history. It considered marriage to be a sacred institution and anyone who breached it should be punished.

A lot of cultures in history have regarded it as a serious offence and thereby laid down severe punishments for its commission such as the torture, mutilation and capital punishment. The Law Commission first considered adultery as a proper and appropriate law during the early independence era and this was upheld by the apex Court in the case of Yusuf Abdul Aziz.[1]

ADULTERY UNDER THE INDIAN PENAL CODE, 1973

Section 497 is said to be a pre-constitutional law which came to effect in 1860. During that time, women were merely treated as property and had no rights of their own independent of their husbands. Therefore, adultery was considered to be an injury to the husband as if someone has stolen his property, in pursuance of which he could even seek to prosecute the offender.

When the first draft of IPC was released by the Law Commission of India (LCI) in 1837, it had no mention of adultery as an offence. Lord Macaulay opined that adultery/ marital infidelity was a sort of private wrong between the parties, and thereby is not a criminal offence, but his views were overruled by other members of LCI. [2]

The word “adultery” has its origin in the Latin word “adulterium” meaning “to corrupt”.[3] The literal meaning of adultery is that a married man having sex with a woman whom he has not married. Adultery was made as a criminal offence under section 497 of the IPC.  Basically, section 497 says:

  • The person must have sexual intercourse with a woman,
  • Whom he knows
  • Or possesses the reason to believe that she is the wife of another man
  • The sexual intercourse must be without the consent of the woman’s husband
  • The intercourse should not be amounting to rape

Such a person is guilty of committing the offence of adultery and is punished with imprisonment of up to a term of five years/ fine or both.[4]

ADULTERY UNDER THE CRIMINAL PROCEDURE CODE, 1973

Section 198 of the CrPC lists down the provisions regarding the  offences that are said to be against marriage. It says that:

  • The court shouldn’t take cognizance of the offences which are punishable under chapter XX of the IPC except when a complaint is made by a person aggrieved of the offence.
  • It also mentions that for the purposes of sub-section (1), only the husband of the woman should be considered as aggrieved in any offence for which punishment is listed under section 497 or 498 of IPC.
  • But providing that in the husband’s absence, if there is any other person who had taken care of the women on his behalf, at the time of the commission of the offence may, with the permission of the court, files a complaint on his behalf.  [5]

 Adultery is a non-cognizable offence i.e. a case in which the police officer has no power to arrest the accused in the absence of an arrest warrant. It is also a bailable and a compoundable offence as it is compoundable with the aggrieved i.e. the adulterous woman’s husband. These are the kind of offences in which the court can offer a compromise between the two parties and thus causing the charges against the accused to be dropped (Section 20 CrPC). [6]

CRITICAL ANALYSIS OF JOSEPH SHINE V. UNION OF INDIA CASE

Joseph Shine was a hotelier who challenged the validity or constitutionality of section 497 of IPC. The main reason behind filing this petition was to protect the Indian men from being punished for extra-marital relations between their wives and other men. A close friend of the petitioner committed suicide in Kerela after he was alleged for rape by a woman co-worker. There were a lot of other issues which the petitioner wanted to be addressed such as absence of any action for the woman in the adultery cases and no legal provision for a woman to file a complaint of her husband against adultery. [7]

Judgment

The judgment which was given by Justice Deepak Mishra began with the statements that wives do not function as property of their husbands and therefore, the husbands should not act as their masters. Section 497 deprives the woman of her dignity, privacy and autonomy. The drafters of the Indian Constitution very well laid down their vision of the society emphasizing on values such as liberty, dignity and equality.

Also, the section is said to be the encroachment on the woman’s right to life and personal liberty by giving acceptance to the underlying notion of marriage as throwing away the right to equality. Sexual autonomy falls under the ambit of personal liberty under article 21 of the Indian Constitution[8]. Trust and respect are essential for a marriage to sustain. It’s only in the case when both the partners treat each other with dignity and respect that the sexual autonomy gets established.

The section is also a denial of right to equality to the women stating that the woman cannot freely give her consent for the sexual acts and her intercourse with the other man would not be treated as adultery if the husband has consented. Thereby, the section is also violative of the non-discrimination clause which finds a mention under section 15.[9]

The section puts an extreme emphasis over the husband’s consent, thereby leading to the subordination of women. Adultery is no longer treated as a criminal offence as a crime is generally committed against the society as a whole and adultery is a personal offence between the couples, thereby, it doesn’t fit the crime. [10]

Analysis

 The apex court brought down section 497 of the IPC. The court has put a restriction on the institution of marriage which forms the foundation of Indian society, thereby causing a cessation of the adultery related crimes. This paves the way for sexual anarchy. Also, adultery is no longer a civil wrong but can be a ground for divorce. But the justifications for it are not so convincing and therefore, it can’t be considered as a Lex Loci.

If adultery is not even taken up as a crime, then how divorce on its basis is justified as criminal law is generally regarded as the protector of the moral principles in our society. The court in the State of U.P. v. Deoman Upadhyaya, [11]found that: while considering the constitutional value of a particular statute on the grounds of equal treatment to all the persons in similar circumstances, one needs to remember that the legislature has to deal with practical problems. Therefore, the question cannot be judged just by enumerating other possible situations.

Adultery also has a major impact over the children and family members of the victim and the offender. Since divorce is available as the only option, the children are left in a state of stillness. Also, the judgment has no provision for the children born out of such acts of adultery or an adulterous marriage. [12]

ADULTERY AS A GROUND FOR DIVORCE

The act of adultery is condemned by the personal laws all over the world and it is even regarded as a basis of divorce/separation.

Hindu Laws

Under the Hindu laws, adultery has been defined as a ground for divorce under section 13(1) of the Hindu Marriage Act, 1955. For the purpose of this section to come into play, the petitioner needs to prove that they are married to the said respondent and that their spouse has voluntarily done sexual intercourse with any other person. [13]

The spouse who has filed the petition for divorce needs to substantiate their statements providing proper evidence. The Indian courts in a plethora of cases said that adultery needs to be proved beyond reasonable doubt. But, currently, the Apex Court seems to adopt a different path in these cases saying that proving something beyond reasonable doubt is a necessary condition under criminal cases but not in civil cases.

In the case of Dastane v. Dastane,[14] The court mentioned that in the case involving personal relationships, especially between the husband and wife, it’s not necessary that things should be proved beyond reasonable doubt.

Before the coming of the marriage laws, 1976, adultery was considered as an act of grave immorality and shame, regardless of the gender, but it wasn’t the ground for divorce. But after the amendment of 1976 came into force, the grounds for divorce and judicial settlement are same and it is a mark of achievement for the Hindu personal Laws.

Section 10 of the Hindu Marriage Act, 1955 provides for adultery as a ground for judicial separation. It says that the parties to a marriage may file a decree for judicial separation under the grounds mentioned in Section 13(1), regardless of whether the marriage was solemnized before or after the coming of the act.[15]

Muslim Laws

According to the Quran, Adultery is a harshly punishable offence that should be dealt with through stoning to death. But this can’t happen in democratic countries where the constitution emphasizes humane treatment of the citizens. The husband obviously has the right to divorce his wife if he proves that his wife was in an adulterous relationship.

But, the wife only in the case of false accusations may ask him either to take back the accusations or give a divorce to him. It is provided that if the husband takes back the claim and seeks an apology in the prescribed manner, the wife’s claim subsists. In Tufail Ahmad v. Jamila Khatun[16]The Allahabad High Court laid down that only such wives who were proved to be not guilty of adultery can use this for the purpose of divorce.

The Dissolution of Muslim Marriages Act, 1939 states under section 2 (viii)(b) that in cases where man leads an ill-famed life and has links with a woman of evil reputation, the wife can sue him on grounds of cruelty. In Zaffar Hussain v. Ummat-ur-Rahman,[17] The plaintiff’s wife alleged that her husband stated in front of several people that she had illicit intercourse with her brother.

Here, the court held that where a Muslim woman has been falsely accused of an adulterous act, she can claim a divorce under that ground. But, if the allegations are found to be true, then, the wife in no way can file divorce under the Islam Law. [18]

Christian Laws

The Indian Divorce Act, 1869[19] and the Indian Christian Marriages Act, 1872 (ICMA, 1872) deals with the laws regarding judicial separation and divorce among the Christians. The section 22 of the Indian Divorce Act puts a bar on divorce Mensa ET toro which means not formally dissolving the bond of marriage, but just authorizing the husband and wife to live separately on the grounds of adultery. But it does make provisions for a decree of judicial separation on the same grounds.

The procedure which is followed for divorce under the ICMA, 1872 has duality in its nature. At first, the couple needs to obtain an annulment through the church and afterwards, they might approach the Court for a divorce decree. Though under the act, the wife has to prove the prevalence of other grounds such as insanity, change in religion, cruelty, etc, whereas the man only requires proving that her wife has done an adulterous act. [20]

In Pragati Verghese v. Cyril George Verghese[21], the Bombay High Court said that the law puts a lot of unnecessary reassurance over the wife, thereby it is quite unfair and allows adultery as an independent ground. The Kerala High Court in the case of Ammini E.J. v. Union of India[22] held that the additional burden up on the Christian woman in proving the offence of cruelty or desertion along with adultery violates section 21 of the Indian Constitution.

Special Marriage Act

Adultery is recognized under the Special Marriage Act, 1954[23] which clearly mentions that if after the solemnization of marriage, the respondent voluntarily had sexual intercourse with anyone other than their spouses is a totally valid ground to seek divorce.

No additional offence is required for obtaining a decree of divorce/ judicial separation. In Sari v. Kalyan[24], the court was of the view that the offence of adultery may just be proven by preponderance of the evidence. No need of proving beyond reasonable doubt is there as the prima facie evidence might not exist and thereby only circumstantial evidence will have to be sufficient.

The act of adultery was discouraged since ancient times. Before 1976, a petition for divorce could be filed in cases only when the spouse has been living under adultery. But the situation has changed now and the petition could be filed even in the instance of having voluntary sexual intercourse outside the institution of marriage. [25]

THE GLOBAL SCENARIO

Adultery is regarded as illegal in 21 of the American states but it has been found that most of the Americans are not in favour of it and do not consider it as a crime. Under the Sharia or the Islamic Law, it is treated as a criminal offence in countries like Saudi Arabia, Iran, Bangladesh, Afghanistan, and Pakistan.

Taiwan too recognizes it as an offence and there is imposition of a punishment of about 1-year imprisonment. Same is the case with Indonesia and also, it is working towards prohibiting every kind of consensual sex outside marriage. South Korea in 2015 struck down its adultery law citing a reason that it was a violation to the right of privacy and self-determination.[26] More than 60 countries in the world have struck down adultery laws.

But in countries like the UK, it is still a criminal offence and further laid down that adultery couldn’t be used as the ground for divorce if the parties involved have lived as a couple for a period of more than six months. [27]

CONCLUSION

The Supreme Court very clearly laid down its views that the law incorrectly treats women as the property for men and is a violation of the fundamental rights, but still it sees it as a valid ground seeking divorce. It can be seen as a law which puts reasonable restrictions and valid limitations on sexual autonomy.

The legal system of our country should not try to regulate with whom one sleeps but instead the separation process if one of the partners breaks the sanctity of marriage. Also, there is no use over criminalizing the broken trust between the two partners in a marriage as it does not lead to their coming together to lead a happy life and doesn’t lead to any change in the societal behavior regarding the couple. [28]


References

[1] Dhananjay Mahapatra, “Why was Adultery Law enacted in 1860, why it had to go now” Times of India, Sept 28, 2018.

[2] Law Commission of India, 42nd Report on Indian Penal Code (Government of India, 1971)

[3] John Murray, “A dictionary of Greek and Roman Antiquities” p.17 (Art. George Long, London, 2014)

[4] The Indian Penal Code, 1860 (Act 45 of 1860), s. 497,498.

[5] The Criminal Procedure Code, 1973 (Act 2 of 1974), s. 198

[6] The Criminal Procedure Code, 1973 (Act 2 of 1974), s. 20

[7] Joseph Shine v. Union of India, AIR 2018 SC 1676

[8] Supra

[9] Supra

[10] Adultery [S.497 IPC and S. 198(2) CrPC], available athttps://www.scconline.com/blog/post/tag/joseph-shine/ (Last visited on September 16, 2021).

[11] AIR 1960 SC 1125

[12] Supra note 7 at 7.

[13] The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 13(1)

[14] AIR 1975 SC 1534

[15] Supra

[16] AIR 1962 All. 570.

[17] (1919) 41 All 278.

[18] Adultery as a ground of divorce in Indian Laws, available at: https://blog.ipleaders.in/adultery-and-divorce/  (Last visited on September 16, 2021).

[19] The Indian Divorce Act, 1869 (Act 4 of 1869)

[20] Supra

[21] AIR 1997 Bom 349.

[22] AIR 1982 SC 1261

[23] The Special Marriage Act, 1954 (Act 43 of 1954)

[24] AIR 1980 Cal 374

[25] Supra note 13 at 10.

[26] Adultery no longer a criminal offence in India, available at: https://www.bbc.com/news/world-asia-india-45404927 (Last modified on September 27, 2018).

[27] Supra note 24 at 11.

[28] Supra note 10 at 8.

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