What are the grounds to re-criminalise the Adultery from the Indian Penal Code in 2018?
The Parliamentary Standing Committee on Home Affairs, examining the three new criminal law Bills set to replace the IPC, CrPC, and the Indian Evidence Act, recommended the criminalisation of adultery on gender-neutral lines.
This comes after a five-judge Constitution Bench of the Supreme Court unanimously decriminalised adultery in 2018 on several grounds including discrimination.
The Committee reasoned that adultery be criminalised in a gender-neutral manner.
The ground that it is crucial to safeguard the sanctity of the institution of marriage.
In its 350-page report, the Committee suggested that adultery be reinstated as a criminal offence.
The gender-neutral, thereby making both men and women equally culpable under the law.
The Committee also said that the revoked Section 497 of the IPC “only penalised the married man, and reduced the married woman to be a property of her husband.”
In his dissent note to the three Bills, Congress MP emphasised that interference by the State in the private lives of consenting adults must be avoided. “
Adultery should not be a crime.
It is an offence against marriage which is a compact between two persons.
If the compact is broken, the aggrieved spouse may sue for divorce or civil damages.
To raise marriage to the level of a sacrament is outdated.
In any event, a marriage concerns only two persons and not society at large.
The State has no business to enter into their lives and punish the alleged wrongdoer,” the note reads.
What is the history of the adultery law in India?
Lord Macaulay, instrumental in the early drafting process of the IPC, was not inclined to make adultery a penal offence.
Distinguishing between a moral wrong and an offence, we cannot admit that a Penal code is by any means to be considered as a body of ethics.
The legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent.”
When the Court Commissioners reviewed the Penal Code, they believed it was important to make adultery an offence.
In 1971, the Law Commission of India in its 42nd Report deliberated on the benefits of criminalising adulterous conduct.
It noted, though some of us were personally inclined to recommend repeal of the section.
Notably, there was a strong dissent by Anna Chandy, who voted to revoke the provision saying it was the “right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with present day notions of woman’s status within marriage.”
The Commission did, however, recommend an important amendment — removal of the exemption from liability for women.
Such a recommendation was reiterated in its 156th Report, taking into account the ‘transformation’ society has undergone.
In 2003, the Committee on Reforms of the Criminal Justice System, known as the Malimath Committee, proposed in its report that adultery be retained an offence but on gender-neutral terms.
Why was the earlier law repealed?
A five-judge Constitution Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra, and comprising current CJI D. Y. Chandrachud, and Justices A. M. Khanwilkar, R. F. Nariman, and Indu Malhotra, in Joseph Shine versus Union of India (2018), held that adultery is not a crime and struck it off the IPC.
It, however, clarified that adultery would continue to remain a civil wrong and a valid ground for divorce.
The inception of the proceedings date back to 2017 when Joseph Shine, a non-resident Indian, hailing from Kerala, filed a Public Interest Litigation (PIL) under Article 32 of the Constitution.
He challenged the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
The offence imposed culpability on a man who engaged in sexual intercourse with another man’s wife and was punishable with a maximum imprisonment of five years.
The wife who had consented to sexual intercourse with a man, who was not her husband, was exempted from prosecution.
The provision was also not applicable to a married man if he engaged in sexual intercourse with an unmarried woman or a widow.
Notably, Section 198(2) of the CrPC empowered only the husband (of the adulterous wife) to file a complaint for the offence of adultery.
Justice R.F. Nariman, in his concurring opinion, observed that Section 497 made a husband the ‘licensor’ of his wife’s sexual choices and that this archaic law does not square with today’s constitutional morality.
Reiterating similar concerns, Justice D.Y. Chandrachud held that the criminalisation of adultery subjugated the woman to a position where the law disregarded her sexuality.
Can such a ruling be overturned?
A ruling of the Supreme Court establishes a precedent and binds the lower courts to follow its dictat.
The Parliament is well within its scope to overrule judicial rulings, but such legislative action will be considered valid only if the legal basis of the judgment is altered.
The Supreme Court in Madras Bar Association versus Union of India (2021) held that “the test for determining the validity of validating legislation is that the judgment pointing out the defect would not have been passed if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment.
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