ANALYSIS ON DECRIMINALIZING ADULTERY: PROS AND CONS
Category: Criminal Law
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On the other hand, there is another perspective of the right of self-determination, right to personal choices. This article focuses on the landmark judgment of Joseph Shine v. Union of India. The article delves into the advantages and disadvantages of striking down Section 497 of the Indian Penal Code, 1860. The readers will get coherent ideas on the diverse perspectives of decriminalization of adultery.
KEYWORDS
Adultery, consent, decriminalise, choice, constitution
INTRODUCTION
Joseph Shine v. Union of India took a major place in Indian legal precedents as it decriminalized adultery by declaring it as one of the grounds for divorce. The judgment highlighted the right to choose one's partner. It mentioned that choosing a partner is personal right and cannot be interfered. The state cannot intrude in such personal relationships and this judgment has given the major individuals especially, consenting adults a fundamental right to engage in consensual sexual relations.
The petitioner filed a Public Interest Litigation challenging the constitutionality of adultery as defined in the Indian Penal Code (Section 497). The court of law held that the law needs to be struck down due to its violation of Article 14, 15 and 21 of the Indian Constitution.
Section 497 of the Indian Penal Code reads as follows:
“Whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be the wife of another man, without the consent or connivance of that man. Such sexual intercourse does not amount to the offence of rape and is guilty of adultery.”
It is pertinent to note that under section 497, only men were held liable and women were exempted from liability.
Adultery has been made a ground for the divorce. One party can institute a suit for divorce when he/she is able to prove that his/her spouse has engaged in an adulterous relationship with another individual. It also falls under cheating and extra marital affairs.
PROS OF STRIKING DOWN SECTION 497 IPC, 1860
Decriminalizing adultery provides adults with the right to personal autonomy. It is important to understand that choosing one’s partner and being in relationships fall under pure personal choices and one cannot be held liable for the same. Any adult cannot be penalised for exercising their freedom in making their one choice in their personal lives. Adults must be given freedom to make decisions on their personal lives without any fear of legal repercussions.
Furthermore, the world is witnessing rapid growth in all spheres. It is important that people also need to progress. Many of them aren’t willing to be stagnant in age-old principles of marriage, relationships. Every person has the right to choose for oneself, choose the right partner and make decisions for themselves. Adultery cannot be viewed as a criminal act, but can be seen as a moral failure of upholding marital relationship.
Whilst personal choices are given more importance, and adultery can be seen as a moral failure of upholding marital relationship, nevertheless the spouse of the individual engaging in adultery always has an option to file for divorce on the ground that his/her spouse has engaged in adultery.
CONS OF STRIKING DOWN SECTION 497 IPC, 1860
In India, marriage is viewed as a relationship with morals, values, rituals and customs. According to the traditional perspective, marriage is a pure social and religious relationship. It becomes very essential to maintain its sanctity and the traditional values it holds in the society. Marriage is a relationship where both man and woman put in mutual time and effort to cherish their existing relationship between them.
It is important that individuals are bound by their marriage and uphold the traditional customs and practices. Decriminalizing adultery paves a way for adults to engage in sexual relationships outside their marriage eventually leading to diminishing value of such pure relationships.
Adultery is a moral wrong and is considered as an evil practice in the eyes of society. It must be punished considering society's morals, norms and values. Decriminalizing adultery can encourage individuals in extra-marital affairs with no adequate legal remedy available to their spouse.
Viewing adultery as a mere moral failure of upholding marital relationships is not an optimistic way of maintaining the sanctity of marriages in the contemporary world. Removal of adultery as a crime leads to less accountability of one partner towards the other. It will pave way for one to dabble in an adulterous relationship and cause harm to their spouse without any suffering on their part. It might also lead to ethical and moral ambiguities with regard to divorce or alimony.
CONCLUSION
Decriminalization of adultery is a contentious issue that raises larger issues regarding the role of the state in controlling conduct and striking a balance between social values and personal freedom. Decriminalization can improve individual privacy, lighten the load on the legal system, and be consistent with contemporary ideals, on the one hand. However, it also brings up issues with societal harm, cultural norms, and marital trust. Decriminalizing adultery would ultimately need to balance the many ramifications, including the advantages of individual liberty and legal economy, against the possible threats to social standards and marital stability. Policies that respect both individual liberties and communal values must be shaped by continual discussion and careful thought as societies change. Whilst the law of adultery is struck down, it becomes crucial to make it gender-neutral in nature while making both men and women liable for adultery.
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WRITTEN BY: PATHI HRUDAYA REDDY
GUIDED BY: ADVOCATE ANIK
