Adultery is the premeditated defiance of the sanctity of the marriage by sexual indulgence of a married person with someone else other than their spouse. It is an act of offence of inconsistency/infidelity by those people who have entered the auspicious bond of marriage. In India, the law of adultery has been under scrutiny since inception for various loopholes.
In India, the offence of adultery is defined under Section 497 of the Indian Penal Code, 1870 which states- “Whoever has sexual intercourse with a person who is and whom he knows or has a 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 the offence of Adultery”.
Time and back, the legitimacy of this law in India has been argued based on its alleged tendency to radiate a very clear sense of gender bias and also, being a criminal act even though the people involved in it are two mature adults. Till now in case of adultery, the man was liable and can be sentenced for up to five years (even if he himself was unmarried) whereas the married woman cannot be jailed or punished even as an abettor because supposedly, she is the victim in such situations and the other man tried to have intercourse with her without her husband’s knowledge.
The National Commission of Women has criticized this law for being anti-feminist- objectifying women as someone’s property and not an individual. Moreover, it also recommended reducing the law as a mere civil offence from being a criminal act would be apropriate as marriage, itself is a civil contract and it should have only civil consequences.
It all came in limelight when the court was hearing a petition filed by a non-resident Keralaite Joseph Shine, who filed a complaint regarding the unconstitutionality of Section 497 IPC read with Section 198(2) of the CrPC, which deals with prosecution for offences against marriages. Section 497 IPC was found to be unconstitutional as it violates the rights of men under Article 14, 15 and 21. The petitioner wanted the Center to make section 497 of the Indian Penal Code gender-neutral.
In response to that, on August 2, 2018, the Supreme Court announced that Adultery can be a ground for divorce under the civil law and is not a criminal offence. The bench lead by CJI Dipak Mishra announced that making adultery a criminal offence would be irrational and unconstitutional, as it interferes with the sexual autonomy of an individual, besides chastising the man alone for the offence. Moreover, during the sexual intercourse there must have been the consent of both the parties, from that there is no good reason for excluding one party from the liability. To do such in a progressive society would be anarchic.
The court also noted that under the bigamy law both men and women are liable for prosecution, unlike the adultery law. Adultery law certainly doesn’t sustain gender neutrality since it is the sacred duty of both man and woman to protect the sanctity of marriage by not entering into any adulterous relationship.