Decriminalization of Adultery in India

November 25, 2023
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India, a country known for its rich cultural heritage and traditional values, has witnessed significant legal and societal changes in recent years. One such landmark decision was the decriminalization of adultery by the Supreme Court of India in September 2018. This decision not only challenged the traditional notions of marriage but also emphasized the importance of personal autonomy and gender equality. In this article, we will explore the background, legal provisions, and Supreme Court judgments that led to the decriminalization of adultery in India.

What is adultery?

Adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse, was considered a criminal offense under Section 497 of the Indian Penal Code (IPC). This archaic law treated adultery as a violation of the sanctity of marriage, focusing solely on the extramarital conduct of men. It considered women as passive victims, incapable of committing adultery or being held responsible for their actions. Such a provision not only perpetuated gender stereotypes but also undermined the principle of gender equality enshrined in the Indian Constitution.

Supreme Court Judgments on adultery

It is to be noted that Supreme Court on various occasions has determined the constitutional validity of the provision of adultery. It was only in 2018 that the Supreme Court declared it to be unconstitutional.

  • Yusuf Abdul Aziz v. State of Bombay (1954): In this case, the Supreme Court held that adultery is not a criminal offense under the Indian Penal Code (IPC). The court stated that while adultery may be a moral wrong, it should not be treated as a criminal offense.
  • Sowmithri Vishnu v. Union of India (1985): The Supreme Court, in this case, upheld the constitutional validity of Section 497 of the IPC, which deals with adultery. The court held that the provision doesn’t violate the right to equality guaranteed under Article 14 of the Indian Constitution, as it only punished men for committing adultery and not women.
  • Joseph Shine v. Union of India (2018): In this landmark judgment, the Supreme Court struck down Section 497 of the IPC as unconstitutional. The court held that the provision treated women as property and violated both the rights to equality and privacy. The court also observed that marriage is a personal choice, and criminalizing adultery interferes with individual autonomy under Article 21 of the Constitution.

The court further noted that Section 497 treated women as property of their husbands and perpetuated gender stereotypes. It recognized that women had agency and should be treated as equals, capable of making independent decisions regarding their personal lives. The judgment emphasized that marriage should be based on trust, mutual respect, and understanding rather than fear of criminal punishment.

Also, the Court made it clear that adultery is a realm of personal space and personal matter of the parties in which the courts or the law should not interfere.

  • Navtej Singh Johar v. Union of India (2018): Although not directly related to adultery, this judgment played a crucial role in shaping the discourse around personal autonomy and privacy rights. The Supreme Court struck down Section 377 of the IPC, which criminalized consensual same-sex relationships. This landmark decision highlighted the importance of recognizing individual choices and dismantling discriminatory laws that infringed upon personal autonomy.

Legal Provisions and Repercussions:

Following the decriminalization of adultery, several legal provisions underwent significant changes. Some of the key aspects include:

  1. Section 497 of the IPC: The Supreme Court declared Section 497 unconstitutional, effectively decriminalizing adultery. The provision was seen as an infringement on personal autonomy, privacy, and gender equality.
  2.  Section 198(2) of the Code of Criminal Procedure (CrPC): The court also struck down the provision that allowed only the husband to file a complaint against a man involved in an adulterous relationship with his wife. This amendment ensures gender neutrality by allowing both spouses to file complaints against their partners or third parties involved in adultery.
  3. Civil Consequences: While adultery is no longer a criminal offense, it still holds civil consequences in terms of divorce proceedings and matrimonial disputes. Adultery can be considered as a ground for divorce if it can be proven that it has caused irretrievable breakdown of the marriage.

Impact and Controversies

The decriminalization of adultery sparked debates and controversies across society. Supporters argue that it is a step towards individual freedom, allowing adults to make choices regarding their relationships without fear of criminal repercussions. It promotes gender equality by recognizing women’s agency and holding both spouses equally ac countable for their actions.

However, critics express concerns about the potential breakdown of the institution of marriage and family values. They argue that decriminalization may encourage infidelity and weaken the sanctity of marriage. Such concerns often stem from deeply rooted cultural and religious beliefs that view marriage as an inviolable bond.

The decriminalization of adultery in India marks a significant step towards personal autonomy, gender equality, and individual freedom. The Supreme Court judgments recognized the importance of treating women as equals and emphasized the need to dismantle archaic laws that perpetuate gender stereotypes. While the decision faced its fair share of controversies, it is a progressive move that aligns with the principles of a modern, inclusive society. Moving forward, it is crucial to address the civil consequences of adultery and continue fostering a society that values personal choices while upholding the sanctity of relationships.

Significance of the Topic

The decriminalization of adultery is a major step towards women’s empowerment, as it recognizes the personal autonomy and bodily integrity of women. Therefore, judiciary coaching recommends that judiciary aspirants have a good knowledge of the issue. Furthermore, judiciary coaching suggests that this topic may be prepared from an essay perspective.

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