Re-criminalising adultery as a gender-neutral offence

The Parliament Standing Committee on Home Affairs has suggested that the proposed BharatiyaNyayaSanhita Bill, 2023 be amended to make adultery a criminal offence again— but on gender-neutral terms.

What is Adultery?

• Adultery can be defined as “An intended sexual contact between two people of opposite gender who are not married to each other under law”. In other words Adultery is a physical relationship between a married man and a woman who is not his wife or between a married woman and a man who is not her spouse.
• Adultery is also known as infidelity, philandery, extra marital affair or physical betrayal in marriage. Adultery is different from rape in the sense that adultery is voluntary while rape is not. The consent of both the individuals for a physical relationship is a must for adultery to exist. 

What is the Law of Adultery?

• Adultery law in India is defined by the Indian Penal Code Section 497.
• IPC Section 497 states, "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."
• A man found guilty of adultery "shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
• In cases of adultery, the wife shall not be punishable as an abettor. Similarly, an unmarried woman cannot be prosecuted for adultery. The offence of adultery is, according to Section 497, committed by a man against a married man.
• In the event of a man committing adultery by means of sexual intercourse with a married woman or an unmarried woman, this law does not confer any right on the man's wife prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with.
• The adultery law has been criticised for treating women as property owned by men. Only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.
• The Marriage Laws (Amendment) Act makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery. It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. 

Legislative History

• In the inception of the Indian Penal Code, marriage among Hindus was deemed sacramental, dissuading penalties for adultery.
• Lord Macaulay, a key drafter, opposed criminalizing adultery, advocating pecuniary compensation for marital issues.
• He acknowledged that given the sacramental nature of marriage in India, the law was not the solution in dealing with marital infidelity.
• Distinguishing between a moral wrong and an offence it was observed by him that “We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent.
• The Law Commission, in 1971, consideredcriminalization, dissenting voices highlighting changing views on women's status.
• Despite recommendations for gender-neutral provisions, procedural reforms, and acknowledging societal transformation, changes were slow.
• The 2003 Malimath Committee suggested retaining adultery as an offense, emphasizing the preservation of marital sanctity.

Supreme Court declaring Adultery Not a Crime

• A five-judge Constitution Bench of the Supreme Court in its judgment Joseph 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.

The inception of the proceedings

• Dates back to 2017 when Joseph Shine, a non-resident Indian, hailing from Kerala, filed PIL under Article 32 of the Constitution, challenging the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the Cr.P.C.
• The offence imposed culpability on a man who engaged in sexual intercourse with another man’s wife and was punishable with a maximum imprisonment of five years. However, the wife who had consented to sexual intercourse with a man, who was not her husband, was exempted from prosecution.
• The provision was also not applicable to a married man if he engaged in sexual intercourse with an unmarried woman or a widow.
• Notably, Section 198(2) of the CrPC empowered only the husband (of the adulterous wife) to file a complaint for the offence of adultery.
• In July 2018, the Centre filed an affidavit in the case arguing that diluting adultery in any form would weaken the institution of marriage and that the ‘stability of a marriage is not an ideal to be scorned’. On September 27, 2018, the Bench pronounced a unanimous ruling in the form of four concurring judgments.

According to the judgements-

• Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair, thereby treating a married woman as her husband’s ‘chattel’.
• Underscoring that adultery is “absolutely a matter of privacy at its pinnacle,”
• If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.
• Section 497 made a husband the ‘licensor’ of his wife’s sexual choices and that this archaic law does not square with today’s constitutional morality. The offence perpetuates the gender stereotype that the ‘third-party male’ has seduced the woman, and she is his victim.
• The criminalisation of adultery subjugated the woman to a position where the law disregarded her sexuality. He reasoned, “Marriage does not mean ceding autonomy of one to the other.
• The ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.”
• The autonomy of an individual to make his or her choices concerning his/her sexuality in the private sphere should be protected from criminal sanction.
• Adultery although a moral wrong quathe spouse and the family, however, does not result in any wrong against the society at large in order to bring it within the ambit of criminal law.
• Instead highlights that adultery should remain as a ground for divorce if one believes in a conservative framework of marriage. “It is difficult for a woman to live with a man who is cheating on her. But that’s between two private parties.

Parliamentary panel’s recommendations

• In its report, 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 (BharatiyaNyayaSanhita) by making it gender neutral.
• 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.
• The Committee reasoned that adultery be criminalised in a gender-neutral manner on the ground that it is crucial to safeguard the sanctity of the institution of marriage.

Dissent Note

• Opposition MPs have however refuted the claim by underscoring that it is “outdated to raise marriage to the level of a sacrament” and that the State has no business to enter into the private lives of couples and punish the alleged wrongdoer.
• Adultery should not be a crime. It is an offence against marriage which is a compact between two persons; if the compact is broken, the aggrieved spouse may sue for divorce or civil damages. To raise marriage to the level of a sacrament is outdated. In any event, a marriage concerns only two persons and not society at large.

Can Parliament make Adultery a crime again? -Legislative overruling of judicial pronouncements

• A ruling of the Supreme Court establishes a precedent and binds the lower courts to follow its dictat. However, the Parliament is well within its scope to overrule judicial rulings, but such legislative action will be considered valid only if the legal basis of the judgment is altered. 
• 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, 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.