September 30, 2022

By Aashi Upadhyay

adultery

ABSTRACT

Adultery displays a conflict between social burden and an individual’s struggle for happiness. Adulterers at all times suffered from society’s critical arrogance towards them. In India, adultery was outlawed under Section 497 IPC. As per criminal law in India, the offense of adultery was directed only at the ‘outsider’ who dishonored the sanctity of the matrimonial home when an outsider is a man. Thus, this amounts to gender-based discrimination in Indian law. The continuance of this law in the present day demanded extensive reforms and amendments.

Now adultery is made punishable u/s 497 of Indian Penal Code, 1860. This paper critically analyses ‘adultery’ and its gender biases keeping in view the changing circumstances and now legalized homosexuality.

KEYWORDS

Adultery, decriminalization, marriage, divorce, society, children, civil offense, ground for divorce.

INTRODUCTION

The word itself was prohibited in the Indian culture and hardly talked about it openly. It was prescribed, not to discuss adultery in public areas but with the increase in the sources of communication and media, these things are no longer considered taboo in the current scenario, especially in the metropolitan towns where adulterous relationships are on the rise and marriages are falling apart homes and breaking down due to this reason.

Perhaps every educated individual knows that adultery is a sexual link that somehow infringes a marital relationship. The real meaning of the world lies in your own insight of an association and that of bonding. The marital relation was and still is the most holy correlation in all sense and if someone commits adultery. He/she renounce the marriage vows and breach the trust and love on which a marriage is based.

‘Adultery is defined as voluntary sexual intercourse by a married person with a partner who is other than his/her partner. The legal description of adultery differs in different jurisdictions and statutes. Adultery in India was a crime and henceforth there are provisions related to adultery u/s Indian Penal Code, 1860’.

OBJECTIVES

The objectives of the study inter alia include the following;-

  1. To deeply understand the meaning of adultery in India.
  2. To study the decriminalization of adultery and its aftermath.
  3. To study the history, constitutional background, legislative intent, and impact on children toward an adulterous relationship of parents.
  4. To identify why India took so long to decriminalize adultery.
  5. Adultery being civil wrong, the ground of divorce and its overall impact.

RESEARCH METHODOLOGY

The research has used a doctrinal method of research for the collection of data.

STATEMENT OF PROBLEM

HISTORY:- The findings of Adultery law precede the code of Hammurabi, in which adultery was embraced in the 7th commandment. Adultery is an extramarital affair that is considered to be incorrect on religious, social, moral, and legal grounds. It was used by Henry VIII of England in direction to get rid of his wife, Catherine Howard. Conflicting to its current presence, it had a broader application in history, and this can be said because it applied only to the commission of adultery amid a man, either unmarried or married, and a married woman, but also between a married man and an unmarried woman. The burden of adultery was the consideration of marriage as a sacred foundation and punishment for the breach of the same. Historically many cultures have considered adultery as a serious offense, and thus it ever incurred severe punishments which were capital punishment, torture, mutilation, etc.

CONSTITUTIONAL BACKGROUND:- Section 497 of the Indian Penal Code and Section 198 of the Code of Criminal Procedure deals with adultery laws. Articles 14, 15 & 21 of the Indian constitution were violated by Section 497 of IPC & Section 198 of Crpc.

LEGISLATIVE INTENT:- Section 497 of IPC previously punished adultery making it a criminal wrong. However, the intent behind the performing of Section 497 of Indian Penal Code is quite different from the one which is perceived by the critics. The law commission was given the charge of redrafting the India Penal Code in 1847. At the time of redrafting the penal code, the commission rendered only men liable for the offense of adultery and this was done keeping in mind the position of women at that point of time and duty cost on the law to protect the interest of women. The critics, on the other hand, argue that Section 497 of IPC tries to dictate and intervene in the lives of 2 consenting adults and it tends to forger or oversea the fact of how adulterous wrecks the life of other individuals. The individuals voicing their opinion in support of decriminalizing adultery in India are the ones who define morality should be based on individual whims and fancies.

IMPACT ON CHILDREN:- “kids” are resilient. They all bounce right back. Adultery is a valid ground for divorce that causes children such deep and lasting scars. Children also suffer long-term damage when they learn of a parent’s adulterous relationship even if the divorce does not take place. When a parent cheats on his or her spouse, children feel as though they were cheated on as well. They often feel as betrayed as does the offended spouse; adultery affects kinds deeply.

WHY DID INDIA TAKE SO LONG TO ABOLISH THE LAW?

For India, it did not really matter. Sexual freedom is a recent phenomenon even for the west. In the not-too-distant past, in the Victorian era, the legs of even the dining table were draped!

Sexual norms are changing. This got caught in the undertow of the LGBT wave in India Section 377 was a much more intense issue. Even this one is being criticized as anti-marriage and anti-children by the somewhat ignorant conservatives. The issues involved in this one were interesting but now many are interested to find out.

ADULTERY AS CIVIL WRONG

Adultery is a civil wrong and a moral wrong and the only legal remedy against the partner is to divorce or judicial separation.

Adultery as a valid ground of divorce: Supreme Court suggested that adultery could be a ground of divorce and carry civil penalties but not a criminal offense.

According to the Hindu Marriage Act, 1955 Section 13(1), any sexual intercourse voluntarily with somebody who is not the spouse, is a ground for divorce. Section 10 of the Hindu Marriage Act, 1955 states, adultery as a valid ground for judicial separation.

Section 22 of the Indian Divorce Act made the provisions of legal parting on the ground of adultery.

 The separation Marriage Act, 1954, stated, if the person had a sexual intercourse with his/her will outside the matrimony, is a ground for divorce.

VALID EVIDENCE FOR PROVING ADULTERY

Non-statutory but still these presumptive grounds are accepted by the court to prove adultery

  1. Circumstantial evidence.
  2. Evidence of visit to the house of ill-repute.
  3. Contracting venereal disease.
  4. Admissions made in previous proceedings.
  5. Confessions and admissions of the parties. Mere suspicion is not sufficient.

CONCLUSION & SUGGESTIONS

In my opinion, decriminalization of adultery is a constructive step towards a progressive society by striking down the laws which deprived the dignity of women. It is irregular behavior as it is unethical and immoral as it interrupts the sanctity of the institution of marriage which is thought to be a sacred institution of society.

Though, this is just central. India still has to cover a long way in order to eradicate decriminalization and to ensure gender equality. I am of the opinion that society should be rise from a patriarchal mindset, in order to ensure the sanctity of marriage which according to me is a necessity in every aspect whether being religious, spiritual, or legal, everyone should be more cautious and sensitive towards the institution of marriage and family system as it is the fundamental unit of society.

OBSERVATION

After studying a lot about the adultery and aftermath of adultery. I can strongly observe that our country did take too much time to decriminalize adultery.

Adultery is now a civil wrong and a ground for divorce. One of the foremost consequences of decriminalizing adultery is divorce. Though the husband and wife are able to tackle the pain it gives adverse effects on children’s mental and physical health, it leads to a feeling of hatred against society.

Justice D.Y Chandrachud said, “The law was based on the concept that a woman loses her individuality once she is married, and adultery is the relic of past.”

So more or less the law has been gender-biased as it has been rather than providing any relief to the woman had worsened the situation for them. As because many times it has been seen that in most divorce cases the husband has tried to use adultery as a ground to exempt themselves from paying maintenance. Also, decriminalizing does not mean that it gives license to carry out the extramarital affair. Rather if adultery is found to be a reason for the commission of suicide by the spouses then it would lead to the prosecution of other spouse.

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