INDIAN LAW ON ADULTERY
Category: Criminal Law
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in the Indian penal code but it has been abolished in Bharatiya Nyaya Sanhita of 2023.This article has put emphasizes on the legal statue, legal provisions, essential elements of Adultery and punishments. This article also provide important landmark judgement of Joseph Shine v. Union of India (2018) which declared Section 497 as unconstitutional. This article also talks about the Law commission recommendation and various Amendments that were proposed.
Key words - Punishments, Amendments, Adultery
Introduction
[1]The word Adultery has been derived from Latin word adulterium which means to corrupt. Adultery refers to an act where a person has sexual intercourse with some else' s wife . This relationship is between two individuals who are not married with each other. This is often referred as extra marital affair. Adultery is also one of the major reason for divorce. Adultery was considered as a crime under section 497 of Indian Penal code and was also punishable. in the Indian penal code but it has been abolished in Bharatiya Nyaya Sanhita of 2023.
Legal Statues
· INDIAN PENAL CODE , 1860
· Code of Criminal Procedure India , 1974
LEGAL PROVISIONS
· [2]Section 497 of Indian Penal code which States that 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor
· [3]198(2) of Code of Criminal Procedure India which states that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint, on his behalf.
[4]Essential Element Of Adultery
· Sexual intercourse must be with the wife of another person.
· The person must have the knowledge about marriage of the women.
· Such sexual intercourse must be without the consent of the husband.
· Such sexual intercourse must be with the consent of the wife.
Punishment
[5]A man who commits the offence of Adultery must be imprisoned for five years or fine or both.
Issue with the Adultery Law
· Section 497 is the violation of Article 14 of the constitution of India which states right to equality. Section 497 also violates Article 21 of the Indian constitution which states right to privacy.
· The court has held that Adultery has arbitrary and discriminatory as it punishes only the man who had sexual intercourse with another married woman.
[6]Law Commission Recommendations
Earlier women were considered as the personal property of the Man. Women did not have any own individual identity. They were identified by their husband. So, the offences of Adultery was considered as theft which will be injury to the husband.
Later law commission has India has recommended changes to the Section 497 which held that the women will also be charged or will be considered as offender for the commission of offence.
The 42 nd law commission has recommended that to reduce the punishments from 5 years to two years of imprisonment.
Proposed Amendments
The Indian Penal Code Amendment Bill had aimed to introduce Equality in gender for commission of the offences of Adultery. It has aimed to maximize the punishment of Five years.
CASE LAW
· Joseph Shine v. Union of India, 2018
[7]This is a landmark judgement in which section 497 of India penal code has been challenged. The supreme court held that section 497 of the Indian Penal code is unconstitutional law . This section is discriminatory in nature and hence violates Article 14 (equal protection of laws) and Article 15 (non-discrimination on grounds of sex) of the Indian Constitution. The court has also held Section 198 (2) of the Criminal Procedure Code as unconstitutional as it allows a husband to charge complain against the man , who had sexual intercourse with another married woman.
·Sowmithri Vishnu v. Union of India
This is a landmark case which challenged the section 497 on the ground of gender inequality. The supreme court held that it is the legislature duty to look for the necessary changes and amendments.
CONCLUSION
To conclude, laws relating to offences of Adultery has gone massive changes . Amendments has been brought related to offences of Adultery. Such offences are also widely accepted. The landmark judgement of Joseph Shine v. Union of India has held section 497 has unconstitutional as it was found to be discriminatory in nature. Adultery was considered as a crime under section 497 of Indian Penal code and was also punishable. in the Indian penal code but it has been abolished in Bharatiya Nyaya Sanhita of 2023. It has become very important to protect the fundamental rights of the person . Constitution provides protection to the rights of person as everyone is equal before the law.
[1] https://www.advocatekhoj.com/library/lawareas/divadultery/index.php?Title=Adultery%20Divorce
[2] https://indiankanoon.org/doc/1833006/
[3] https://indiankanoon.org/doc/289904/
[4] https://www.legalserviceindia.com/legal/article-9404-laws-on-adultery.html#google_vignette
[5] https://www.legalserviceindia.com/legal/article-9404-laws-on-adultery.html#google_vignette
[6] https://www.advocatekhoj.com/library/lawreports/theindianpenalcode/20.php?Title=The%20Indian%20Penal%20Code&STitle=Adultery#:~:text=The%20offence%20is%20committed%20only,with%20fine%20or%20with%20both.
[7]https://blog.ipleaders.in/supreme-court-struck-adultery-law-section-497-ipc-justified/#The_Supreme_Courts_judgement_in_the_present_case
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