Adultery in India

Why in News

The Parliamentary Committee on Home Affairs has suggested that adultery should be re-instituted as a crime in the Bharatiya Nyaya Sanhita (BNS), 2023, the proposed law to replace the Indian Penal Code (IPC), 1860.

Important Points

• The Parliamentary Committee adopted reports on the three Bills meant to replace the IPC, The Code of Criminal Procedure (CrPC), 1973, and The Indian Evidence Act, 1872.

• The panel headed by BJP Rajya Sabha member Brij Lal, which examined the Bills after they were introduced in Parliament this August 2023, suggested more than 50 changes and flagged several errors in them.
• Adultery in India: Adultery in general can be understood as ‘Sexual intercourse between a married person and someone else other than the spouse, i.e. a person who is not his/her wife/husband’. Adultery law in India is defined by the Indian Penal Code Section 497.

History of Adultery Law in India

• Adultery law, a pre-constitutional law, was enacted in 1860.
• Women at that time had no rights independent of their husbands and were treated as chattel or "property" of their husbands.
• Therefore, adultery was treated as a crime against the husband, for which he could prosecute the offender.
• In 1837, the Law Commission (under Lord Macaulay) of India did not include adultery as an offence in the first draft of the IPC.
• The Second Law Commission suspected something and recommended that keeping the offence out of the IPC would be inappropriate and was included later on.

 What is the legal position on adultery now?

• Until 2018, the IPC contained Section 497, which defined adultery as a criminal offence that attracted up to five years in prison, or a fine, or both.
• However, only men could be punished under Section 497, not women.
• In Joseph Shine vs Union Of India (2018), a five-judge Bench of the Supreme Court led unanimously struck down Section 497 of the IPC on grounds that included discrimination.
• The court also struck down Section 198(2) of the CrPC to the extent that it applies to the offence of adultery under Section 497.
• Section 198(2) CrPC says that in certain cases, courts can take cognizance of a matter only if approached by an aggrieved party and, in cases of adultery, only the husband shall be deemed as “aggrieved”.
• The court held that adultery could be only considered a valid ground for divorce and should not be treated as a criminal offense.

 What has the House Committee recommended?

• The report on the BNS, 2023, which was adopted by the Committee, said that adultery should be reinstated as a criminal offence, but it should be made gender-neutral — that is, both men and women should be punished for it.
• In essence, the report has argued that Section 497 was struck down on grounds of discrimination, and making it gender-neutral would address this deficiency.

 Why it was struck down?

Discriminatory in nature:

• The discriminatory nature of Section 497, and its “manifest arbitrariness” in punishing only men for adultery, was just one of the grounds on which the court had struck down the provision.

Violation of fundamental rights:

• Section 497 was violative of Articles 14, 15, and 21 of the Constitution:
• Article 14 - Right to equality –
• Adultery only prosecuted men and women and hence, it was considered to be a violation of Article 14;
• Article 15(1) - prohibits the State from discriminating on the grounds of sex –
• The law only considered the husbands as to the aggrieved party;
• Article 21 - protection of life and personal liberty –
• Women were treated as the property of their husbands under this law, which is against their basic dignity.

Autonomy of women:

• The court underlined the autonomy of women as a facet of human dignity.
• The Court declared that the husband is neither master of his wife, nor does he have legal sovereignty over her
• Any system treating a woman with indignity invites the wrath of the Constitution.

Not a crime:

• Also, adultery does not fit into the concept of crime.
• If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
• It is better to be left as a ground for divorce.

 Can the Supreme Court’s decision in this case be undone?

• A ruling of the SC is the law of the land.
• Parliament cannot simply pass a law that contradicts a ruling of the top court.
• However, it can pass a law that removes the basis of the court’s judgment.
• Such a law can be both retrospective and prospective.

About Bharatiya Nyaya Sanhita (BNS) Bill, 2023:

• The Indian Penal Code was drafted by the first Law Commission which was chaired by Thomas Babington Macaulay in 1834. The code came into force in January, 1860.
• The Bharatiya Nyaya Sanhita Bill, 2023 will repeal and replace the IPC.
• The BNS Bill proposes several changes in the existing provisions including those related to defamation, offence against  women and attempt to commit suicide.
• While the IPC has 511 sections, the BNS Bill contains 356 provisions.