Decriminalisation Of Adultery – A Setback To The Institution Of Marriage In India

In a judgment that has the potential to impact millions of families, the Supreme Court of India declared the 150-year-old adultery law as unconstitutional. This judgment, passed by a bench of five judges, struck down the section 497 of Indian Penal Code, 1860 along with section 198 of Cr.P.C. as unconstitutional, thereby decriminalizing the offence of adultery.

While the judgment is bound to have a far-reaching impact upon marriages in India, the adverse fallout cannot be ignored. In a country beset with rising divorce rates and cases of marital infidelity, the decriminalization of adultery will critically endanger the institution of marriage. Not only does it run the risk of fostering extra-marital affairs, the emergence of divorce as the way out will catalyze the break-up of marriages, leaving little children in the lurch.

As an intervener in the petition before the Supreme Court filed by Joseph Shine, I strongly opposed the decriminalization of adultery sought by the Petitioner. Rather, we prayed that only Section 198 of the Code of Criminal Procedure, 1973, which prohibits wives from filing adultery complaints, be struck down.

In our intervention application before the Court, we relied upon different grounds to suggest why this section should be made gender-neutral. We argued that Section 198 of the Cr.P.C violated Article 14 of the Constitution of India because they fail the test of reasonable classification as they carve out arbitrary classifications in favor of the husband. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife. Further, it also created an arbitrary classification between married and unmarried women, thereby violating the fundamental right to equality under Article 14 of the Constitution of India.

• In our arguments, we further stressed that Section 198 of the Cr.P.C. also violated Article 15 of the Constitution, which prohibits gender-based discrimination. It was also inimical to the right to life under Article 21 of the Constitution. It was a retrograde provision that demonstrated the failure of the State to provide equal justice under the Directive Principles of State Policy. Needless to add, the heteronormative nature of the Section 497 was a gaping loophole willfully exploited by married and unfaithful men to the detriment of their wives.
• It creates an offence against men only, rendering a right to prosecute by the woman null and void.
• It creates an arbitrary classification between married women and unmarried women.
• The Impugned Provisions violate Article 15 of the Constitution of India and cannot be accorded any protection under Article 15 (3).
• The Impugned provisions also violate Article 21 of the Constitution of India

As an Intervener, my prayers were as under:

Prayers

A)   That this Hon’ble Court be pleased to direct amendment of Section 497 of the Indian Penal Code, 1860 as this section is discriminatory against women and violates Part III of the Constitution of India;

B)    That this Hon’ble Court be pleased to direct amendment of Section 198 (2) of the Code of Criminal Procedure, 1973 as this section is discriminatory against women and violated Part III of the Constitution of India;

C)   That this Hon’ble Court be pleased to pass any such other and further orders as this Hon’ble Court may deem fit and proper in the interests of justice.

Adultery Judgment – Opinion

Adultery won’t be a crime now which will destroy the very foundation of marriage. As an intervener in this matter, I prayed for making section 497 of Indian Penal Code, 1860 and section 198 of Code of Criminal Procedure, 1973 as gender neutral and not unconstitutional.

Under the adultery law, only the husband of the woman had the right to file case against the man with whom she commits adultery, but this law won’t prevail now. Along with section 497 of Indian Penal Code, 1860, Supreme Court has struck down section 198 of Code of Criminal Procedure, 1973 which allowed the husband to bring charges against the man with whom his wife has committed adultery.

What about the Future of Children Born out of such marriages?

There will be breakdown of marriage and the future of children born from such marriages will be affected. Hon’ble Supreme Court has strike down the section 497 of IPC read with section 198 of CrPC just because woman had no right to prosecute, but it should have laid down the remedies for children who will be affected because of such adulterous relationships.

Right to Prosecute under Section 306 of Indian Penal Code, 1860 if Suicide is committed by a Spouse

Hon’ble Supreme Court clearly understands that adulterous relationships would cause disruption in society, but then too it has strike down the section 497.

Supreme Court has stated that if any of the spouse would commit suicide because of the adulterous relationship by the other spouse, then one would be able to prosecute under section 306 which relates to Abetment of Suicide. This would mean that suicide cases in marital disputes will increase now. Supreme Court could at least direct the Government to add adultery as an offence under 498 (A) of the Indian Penal Code, 1860.

Parliament should take steps immediately

From now on, the only remedy available to a man or woman who finds his partner to be in an adulterous relationship would be to go for divorce. Hon’ble Supreme Court should have thought that this decision would end up the institution of marriage.

Parliament will need to take some steps immediately to rectify the damage done by the Supreme Court in Adultery verdict.

(The writer is a former civil servant and currently a lawyer practising at Bombay High Court)