• UGI USER
  • Dec 04, 2023
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RE-CRIMINALIZING ADULTERY

Syllabus:

  • GS 2 : Judgements & Cases

Why in the News?

  • The Parliamentary Standing Committee on Home Affairs recommended re-criminalizing adultery.
  • This suggestion emerged during the examination of three new criminal law Bills intended to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act.
Source: Graphics

 Committee’s Recommendations

The recent recommendation to re-criminalize adultery is based on the assertion that safeguarding the sanctity of marriage requires such legal measures.

Gender-Neutral Approach:

  • The Committee proposed reinstating adultery as a criminal offence but making it gender-neutral, holding both men and women equally culpable.
  • Emphasis on protecting the institution of marriage and considering it sacred in Indian society.

 Opposition and Dissent:

  • Opposition MPs argue against elevating marriage to the level of a sacrament and assert that the state should not intrude into private lives.
  • Emphasized that adultery should be an offence against marriage, not a crime, and that the state should avoid interfering in the private lives of consenting adults.

What is Adultery ?

Adultery is a consensual sexual relationship or extramarital affair between a married person and someone other than their spouse. It involves a breach of the marital commitment and is often considered a violation of the social and moral expectations associated with marriage.

Legislative History of Adultery Law

Lord Macaulay’s Perspective:

  • Lord Macaulay, instrumental in drafting the Indian Penal Code (IPC), was not in favour of criminalizing adultery.
  • He believed that a better remedy lay in civil compensation, distinguishing between a moral wrong and an offense.

Criminalization of Adultery in IPC: 

  • In the IPC, adultery was made an offense, but only the male offender was liable.
  • This was justified based on the prevailing social norms and the perceived need to protect women.

Law Commission’s Deliberation (1971):

  • The Law Commission of India, in its 42nd Report considered criminalizing adultery but recommended against it, believing the time wasn’t ripe for such a radical change.
  • However , advocating for a reconsideration of adultery laws commission recommended removing the exemption for women, in tune with contemporary notions of women’s status.

 Malimath Committee’s Proposal (2003):

  • The Malimath Committee suggested retaining adultery as an offence but on gender-neutral terms.
  • Emphasis on preserving the sanctity of marriage and societal disapproval of marital infidelity.

 Joseph Shine vs Union of India 2018 

  • The Supreme Court declared the Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional and a violation of individual privacy.
  • The five-Judge Bench also pronounced Section 198 of the Criminal Procedure Code as unconstitutional.
  • This section pertains to the process of lodging a complaint for adultery, restricting the right to complain against adultery to husbands only, leaving adulterous men’s wives without such a recourse.

 Current Status: 

  • Adultery remains a civil wrong and grounds for divorce.
Section 497 & Doctrine of Coverture

Section 497 relies on the Doctrine of Coverture, an unrecognised concept by the Constitution. This doctrine, asserting that a woman forfeits her identity and legal rights upon marriage, is deemed to infringe upon her fundamental rights.

Why Was the Law Repealed in (Joseph Shine vs Union of India) 2018?

Judicial Perspectives:

  • The SC held that section 497 is violative of Article 21(Right to Life and Personal Liberty) and Article 14( Right to Equality)
  • Chief Justice Dipak Misra highlighted privacy concerns and rejected criminalizing adultery.
  • Justice R.F. Nariman and Justice D.Y. Chandrachud underscored the archaic nature of Section 497, perpetuating gender stereotypes.
  • Justice Indu Malhotra emphasized protecting individual autonomy in private matters.

 Social Impact of Adultery

Impact on Individuals:

  • Emotional distress: Betrayal, jealousy, and anger can lead to significant emotional distress for the spouse who discovers the infidelity.
  • Loss of trust: Adultery erodes trust, a fundamental pillar of any relationship. The betrayed spouse may struggle to trust their partner again.
  • Damage to self-esteem: Adultery can damage the self-esteem of both the betrayed spouse and the unfaithful partner.

Impact on Families:

  • Strained relationships: Adultery can strain relationships between spouses, children, and extended family members.
  • Conflict and instability: Infidelity can lead to arguments, conflicts, and instability within the family unit.
  • Increased risk of divorce: Adultery is a significant predictor of divorce.

Impact on Society:

  • Undermines moral values: Adultery can be seen as undermining societal norms and moral values related to fidelity and commitment.
  • Perpetuates gender stereotypes: Adultery can reinforce negative gender stereotypes, such as the idea that men are more likely to be unfaithful.
  • Legal and financial implications: Adultery can lead to legal battles, financial burdens, and reputational damage for the individuals involved.

Arguments for Re-Criminalization

Proponents of re-criminalizing adultery argue that it would:

  • Protect the Sanctity of Marriage: They believe that adultery undermines the sanctity of marriage and that criminalizing it would deter such behavior.
  • Uphold Moral Values: They contend that adultery is a moral wrong and that criminalizing it would uphold societal values.

Arguments Against Re-Criminalization

Opponents of re-criminalizing adultery argue that it would:

  • Violate Individual Privacy: They believe that adultery is a private matter between consenting adults and that criminalizing it would constitute an unwarranted intrusion into personal lives.
  • Discriminate Against Women: They contend that re-criminalizing adultery would disproportionately affect women, perpetuating gender inequality.
  • Inconsistent with Modern Values: They argue that re-criminalizing adultery is an outdated and regressive step that is incompatible with modern values and individual freedom.

Possibility of Overturning the Ruling

Legislative Authority:

  • A Supreme Court ruling sets a precedent but can be overruled by Parliament through legislation.
  • Legislative action must alter the legal basis of the judgment for validity.

Validity of Legislative Action:

  • Recent judicial decisions clarify that legislative action can validate or correct defects pointed out by the courts.
  • However, caution is advised, and any legislation merely validating without addressing defects may be considered ultra vires.

Examining Future Implications:

  • The ongoing debate raises questions about the role of the state in regulating private lives and the evolving societal perceptions of marriage.
  • The proposal’s fate may depend on a nuanced understanding of privacy, individual autonomy, and the institution of marriage.

The recent recommendation to re-criminalize adultery brings forth complex considerations rooted in legal, social, and moral dimensions, requiring a careful examination of its potential impact on individual rights and societal values.

Source: The Hindu

Mains Practice Question:

Critically evaluate the recent proposal to re-criminalize adultery in India, considering its potential impact on individual rights, societal values, and the institution of marriage.