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Lucknow Faculty of Law PROJECT ON

AN OVERVIEW ON AUDULTERY For Course on ‘Indian Penal Code’

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B.COM LL. B(HONS)

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ACKNOWLEDGMENT I would like to express my special thanks of gratitude to my teacher Dr. Amit Kumar Pathak who gave me the golden opportunity to do this wonderful topic Panorama of Adultery in future generation, which also helped me in doing a lot of Research and I came to know about so many new things I am really thankful to her.

TABLE OF CONTENTS 1.1. Introduction…………………………………………………………………….2 1.2. Adultery: Historical Perspectives In India…………………………………..3-4 1.3 Adultery In India – Origin and Development………………………………5-6 2.1 Supreme Court Verdict On Adultery…………………………………………7-9 2.2 Effect of decriminalizing adultery…………………………………………... 10-11 2.3 Adultery as a ground for divorce in India……………………………………12-13 3.1 Adultery In Hindu Law……………………………………………………….14- 15 3.2 Conclusion………………………………………………………………………..16 3.3 Bibliography……………………………………………………………………….17

1.1. INTRODUCTION

“The measures of any society is how it treats its women and girls” Adultery is a voluntary consensual relationship between a married individual and someone who is not his/her lawful spouse. The five judge constitution bench of Supreme Court 1striking down sec 497 of Indian penal code dealing with the offence of adultery. Justice Deepak Mishra say that ‘Husband is not the Master of Wife’ and women’s are not chattels of husbands and have to be treat equally as they are the architect of the society. sec 497 of Indian penal code read as Whoever has sexual intercourse with a person who is and whom he knows or has 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 guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. However Supreme Court in joseph shine v Union of India2 added that adultery becomes a ground for divorce and if any aggrieved spouse commits suicide because of adultery then it could be treated as an abetment to suicide. But making adultery non punishable is result in weakening the sanctity of marital bond and will result in the laxity of the marital bond3. An act which outrages the morality of society, and harms its society ought to be punished as a crime, by deterring individuals from engaging in conduct which is potentially harmful to a marital relationship; Section 497 is protecting the institution of marriage, and promoting social well being. Adultery falls squarely within this definition, adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society4. Many western country decriminalize

1

Joseph shine v Union of India AIR 2018 SC 194 AIR 2018 SC 194 3 Hindu Marriage Act 4 V. Revathi v. Union of India and others 1988 SCC 72 2

adultery like England5, U.S.A6 and peoples in these country like to live, live in relationship, Chief justice Deepak Mishra with five judge constitution bench says that adultery is manifestly arbitrary,

1.2. Adultery: Historical perspectives in India In this country as well, in the Manu smriti, law prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment7. The Dharma sutras speak with different voices. In the Apastamba Dharma sutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman. However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a Vedic scholar, for three years. The history of Adultery can be traced from the treatment of adultery as an offence in different religions and before any code of law was formed in any country, the laws were based on the religious beliefs of the people. Historically many cultures have considered adultery a heinous crime, for which punishments were often severe in nature like death penalty, mutilation and torture, usually the woman were the only ones charged for the act but in some places men were also held liable for the act. Manusmriti was the eternal code of conduct of ancient Indians and the general public followed it religiously which say - “day and night woman must be kept in dependence by the males of their families and if they attach themselves to sensual enjoyments they must be kept under ones control.” has always strictly condemned adulterous liaisons and considered it a moral sin8. Individuals who have been involved in illicit or treacherous relationships had to face a lot of public disrespect and humiliation. As Hinduism considers marriage to be a sacrosanct association, it becomes necessary to maintain the purity of marriage and to uphold marital vows. The Law Commissioners considered that by not treating „adultery‟ as a criminal offence, it may give sanction to immorality. The Report states: Some who admit that the penal law now existing on this subject is in practice of little or no use, yet think that the Code ought to contain a provision against adultery. They think that such a provision, though inefficacious for the repressing of vice, would be creditable to the Indian Government, and that by omitting such a provision we should

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Pritchard v. Pritchard and Sims, [1966] 3 All E.R. 601 Charles A. Tinker v. Frederick L. Colwell, 193 US 473 (1904) 7 THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886). 8 Laws of Manu, v, 154; VIII, 371 6

give a sanction to immorality9. However in 42nd law commission report, they believe with truth, that the higher class of natives consider the existing penal law on the subject as far too lenient10. In Islam, The Quran says “And do not approach unlawful sexual intercourse (zina). Indeed, it is ever an immorality and is evil as a way11” Christianity believes that the marriage should be held in honour by all and the marriage bed should be kept undefiled, for God will judge fornicators and adulterers12. In March 2003, the Malimath Committee on Reforms of Criminal Justice System , was constituted by the Government of India, which considered comprehensive measures for revamping the Criminal Justice System. The Malimath Committee made the following recommendation with respect to “Adultery”: A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man13.

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Second Law commission report on Indian Penal Code 1838 42nd Report on the Indian Penal Code, Law Commission of India 11 Muslim law act 1937 12 John mill in Christian law England 1804 13 Criminal Law Reforms on criminal justice System 2003 10

1.3 Adultery In India – Origin and Development It is pertinent to note that the original draft of IPC prepared by first Law Commission was silent about the offence of ‘adultery’. Lord Macaulay, who was unwilling to add the provision criminisling the adultery as an offence, observed, "There are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives14. The basic objective of keeping ‘adultery’ out of the penal statute was the social norms which has already provided the values and norms which take care of such instances. The circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury. Thus, framers of the Code did not include adultery as a crime; it was only after the recommendation of the Second Law Commission it was added to the Code15. But the Second Law Commission, after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code.The Second Law Commission thought otherwise and said it would not be proper to leave the offence out of the IPC and suggested that only the man be punished, again keeping in mind the condition of women in the country. “Though we well know that the dearest interests of the human race are closely connected with the chastity of woman and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is, unhappily, very different from that of the women of England and France; they are married while still children; they are often neglected for other wives while still young. They share the attention of a husband with several rivals. To make laws for punishing the inconsistency of the wife, while the law admits the privilege of the husband to fill his ‘zenana’ with woman, is a course which we are most reluctant16.

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Lord Macaulay on first criminal law report 1872 Report of the Committee on Reforms of Criminal Justice System, Government of India 1892 16 Sowmithri Vishnu v. Union of India & Anr (1985) Supp SCC 137 15

2.1 SUPREME COURT VERDICT ON ADULTERY

“Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband”. A five-judge Constitution bench was unanimous in holding Section 497 of the Indian Penal Code, dealing with the offence of adultery, as unconstitutional and struck down the penal provision. The bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra held that Section 497 is unconstitutional. The CJI and Justice Khanwilkar said: "We declare Section 497 IPC and Section 198 of CrPC 17 dealing with prosecution of offences against marriage as unconstitutional18". The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour. A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full as a man. When she marries, she does not become the husband‘s servant but his equal partner. If his work is more important in life of the community, her is more important of the family19. Neither can do without the other. Neither is above the other or under the other. They are equals20. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master.

18

Chief justice Deepak Misra and Khanwilkar in his judgment Mahatma Gandhi on women empowerment a need of India 20 Article 14 of Indian Constitution 19

It is advisable to remember what John Stuart Mill had observed; The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other21. The validity of Section 497 IPC. We do not intend to advert to the factual matrix. On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership6It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The dictionary meaning of ―adultery is that a married person 27 commits adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black‘s Law Dictionary, Adultery is the voluntary sexual intercourse of a married person with a person other than the offender‘s husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC. Section 198 CrPC deals with a person aggrieved. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate 22. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action.

21 22

On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869 Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321,

Husbands are not the master of their wife-

Dignity of any person is an instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset23. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms24. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals 25 . The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood26. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self determination. Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institution and regard being had to various aspects that social history has witnessed in this country, the Parliament has always made efforts to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative of husband of a woman subjecting her to cruelty. The Parliament has also brought in the Protection of Women from Domestic Violence Act, 200527. This enactment protects women. It also enters 23

K.S Puttaswamy v Union Of India AIR 2017 SC 494 Maneka Gandhi v Union Of India AIR (1974) 4 SCC 3 25 Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 456 26 E.P. Royappa v. State of Tamil Nadu AIR (1974) 4 SCC 3 27 Protection of Women from Domestic Violence Act, 2005 24

into the matrimonial sphere. The offences under the provisions of the said enactment are different from the provision that has been conceived of under Section 497 IPC or, for that matter, concerning bringing of adultery within the net of a criminal offence. There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty. We are not commenting on any kind of ideal situation but, in fact, focusing on whether the act of adultery should be treated as a criminal offence. In this context, we are reminded of what Edmund Burke, a famous thinker, had said, a good legislation should be fit and equitable so that it can have a right to command obedience. Burke would like to put it in two compartments, namely, equity and utility28.

2.2 Effect of decriminalizing adultery

The decriminalization of adultery will result in weakening the sanctity of marital bond and will result in the laxity of the marital bond29. Adultery must be retained as a criminal offence in the I.P.C. Adultery has the effect of breaking up the family which is the fundamental unit in society. Adultery is undoubtedly morally abhorrent in marriage, and no less an offence than the offences of battery, or assault. By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social wellbeing. An act which outrages the morality of society, and harms its members, ought to be punished as a crime30. Adultery falls squarely within this definition. Adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. Any affront to the marital bond is an affront to the society at large. The act of adultery affects the matrimonial rights of the spouse, and causes substantial mental injury. Adultery

28

Edmund burke an essay on equity and utility 1975 Hindu marriage and divorce act 1976 30 Sec 497 of Indian penal code 1872 29

is essentially violence perpetrated by an outsider, with complete knowledge and intention, on the family which is the basic unit of a society. All discrimination in favour of women is saved by Article 15(3)31, and hence were exempted from punishment. Further, an under inclusive definition is not necessarily discriminatory. The contention that Section 497 does not account for instances where the husband has sexual relations outside his marriage would not render it unconstitutional. It was further submitted that the sanctity of family life and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law. It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read on equality down that part, in so far as it is violative of the Constitution but retain the provision.

2.3Adultery as a ground for divorce in India

Adultery means voluntary sexual intercourse outside lawful wedlock. Under the Hindu marriage Act, 1955 which came into force on May 18, 1955, adultery has been incorporated as a ground for judicial separation and divorce. Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove that she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her. The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The Indian Courts time and again had stressed that adultery has to be proven beyond reasonable doubt. However, in the recent years, the Supreme Court is seen to be deviating away

31

Article 15 of the Indian constitution

from such notions stating that proving beyond reasonable doubt is essential in criminal cases and not in civil cases. In the case of Dastane v. Dastane32, the apex court held that there certainly is no necessity of the presence of proof beyond reasonable doubt where personal relationships are involved especially those between a husband and wife. In the case of Ammini E.J. v. Union of India33, the Kerala High Court held that the husband is in a favourable position with respect to it being a ground for divorce because the wife has to prove adultery along with some other aggravating circumstances and hence it is discriminatory towards the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery, without any other qualifying offence such as cruelty or desertion. Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage being solemnized after or before the commencement of this act. In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi 34, both Section 10 and Section 13 of the Hindu Marriage Act, according to the husband, she used to visit the house of the corespondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in the favour of the petitioner on merit of the evidence provided, and judicial separation was granted. The above cases are mainly testament to the fact that cases such as these are indeed taken on a case to case basis, and decided on the merits of that particular case. Hindu marriage law the situation is different. In Hindu law it is considered as a ground for both divorce and judicial separation35. Under Indian Penal Code only husband can file a case but under Hindu Marriage Act both the spouses can use it as a ground of divorce. Section 13(1)(i)5 of the Hindu Marriage Act talks about adultery as a ground of divorce while section 10(1)6 talks about adultery as a ground of judicial separation. These sections says that any person who does sex with any other person other than his or her spouse then the other person gets the right to file a petition of getting the decree of divorce or for judicial separation.

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(1907) ILR 31 Bom 218 AIR 1989 SC 234 34 AIR 1983 SC 435 35 Hindu marriage act 1955 33

3.1ADULTERY IN HINDU LAW: Before the existence of Hindu Marriage Act divorce was unknown to the Hindus. There was no concept of divorce among Hindus as the marriage was regarded as a sacrament and an unbreakable relationship between the couples. Even in the ancient Hindu sources of law there was no concept of divorce. In Manusmriti, it is regarded as an indissoluble union between husband and wife. Manu in Manusmriti declares that “a wife cannot be released by her husband, let mutual fidelity continue till death, this in brief may be understood to be the highest dharma of the husband and wife.”7 But this changed when the Hindu Marriage Act came into the picture. Divorce was introduced in the act when it passed in 195536. Various grounds for divorce were included under section 13 of the act. Necessary amendments were done under this act time to time. Before passing of the Marriage laws (Amendment) Act 1976, the grounds for divorce and judicial separation were different but after the amendment came, the grounds for both divorce and judicial separation were made common.8 Under the Hindu Marriage Act of 1955 adultery is considered as a ground for divorce and for judicial separation. Section 13(1)(i)37 talks about adultery as a ground for divorce and section 10(1) talks about adultery as a ground for judicial separation. There are some theories of divorce under Hindu law like fault theory, mutual consent theory, irretrievable breakdown of marriage.9 The first theory i.e. the fault theory which is also known as the offence theory or the guilty theory says that a marriage can be dissolved when one party to a marriage commits a matrimonial offence. In this situation the other party i.e. the innocent party gets the right to seek the remedy of it. Under section 13(1) there are 9 grounds of fault theory on which either husband or wife can sue for divorce but in addition there are 2 more fault grounds under section 13(2) on which wife alone can sue for divorce. The second theory i.e. the mutual consent theory talks about the divorce by mutual consent. Under section 13-B 10 of the act both husband and wife by mutual consent can present a petition for getting the decree of divorce. The third theory of divorce is irretrievable breakdown of marriage.It is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband & wife”. such marriage should be dissolved. Adultery which is a matrimonial offence comes under

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The Hindu Marriage Act 1955 Special marriage act 1954

The Special Marriage Act, 1954 recognizes adultery and states that if the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his/her spouse, it is a valid ground for divorce. The Act has recognized adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation. The present position on the concept of burden of proof has also been relaxed under the Special Marriages Act, 1954. In the case of Sari v. Kalyan38 it was stated that adultery may be proven by a preponderance of evidence and need not be proved beyond reasonable doubt as prima facie evidence as to the act of adultery may not be present and circumstantial evidence will have to suffice. In Hindu law it is considered as a ground for both divorce and judicial separation. Under Indian Penal Code only husband can file a case but under Hindu Marriage Act both the spouses can use it as a ground of divorce. Section 13(1)(i)5 of the Hindu Marriage Act talks about adultery as a ground of divorce while section 10(1)6 talks about adultery as a ground of judicial separation. These sections says that any person who does sex with any other person other than his or her spouse then the other person gets the right to file a petition of getting the decree of divorce or for judicial separation. Under this clause either man or woman can file a petition for getting the decree of divorce or for judicial separation39.

38 39

AIR 2002 SC354 Sec 13 of Hindu Marriage Act

CONCLUSION Women are the backbone of any developing society, a country is developed if women are literate, treated equally like men and no discrimination in any matter. The panorama of adultery in India in present scenario is very critical, decriminalizing adultery by supreme court saying husband is not master of wife and they are not the chattels of their husband is true but to make adultery non punishable is something like creation of dangerous society and it has bad impact on youth and also on future generation as they took no interest in marriage which is one of the sacrosanctity relationship between husband and wife. The decriminalization of adultery will result in weakening the sanctity of marital bond and will result in the laxity of the marital bond. Adultery must be retained as a criminal offence in the I.P.C. Adultery has the effect of breaking up the family which is the fundamental unit in society. In my opinion Adultery should be punishable as giving rights for making sexual intercourse by breaking sancticity of marriage is not a way to promote equality to women but actually it make women mentally disturb and tremendously increases divorce. The decriminalization of adultery will result in weakening the sanctity of marital bond and will result in the laxity of the marital bond. In the present scenario decriminalization of adultery creates question on institution and sancticity of marriage which is one of the most devotional and sacred relationship in Hindu Religion and its negative effect is that it becomes a ground for divorce very rapidly not in present scenario but also in future generation. There remains nothing like any sacrosanctity relationship between husband and wife and people tied to get in live in relationship. The main objective of this paper is to examine the effect of decriminalizing adultery in a negative concept. The first segment of this paper discussed about historical background of adultery. Second segment of this paper discussed on Supreme Court verdict on decriminalizing adultery third segment of this article discussed about effect of decriminalizing adultery on institution sanctity of marriage. Fourth segment of this paper discussed about adultery as a ground for divorce in India. The method used in this category is a normative law research method Through this paper I reach to the conclusion that decriminalisation of adultery in a whole manner is not correct, court have to provide equality to women in a same manner as men in case of filing suit and all other matters, but making adultery non punishable is a step towards creating endanger us to future generation in sancticity of institution of marriage, cause divorce and leaving little children in the lurch.

BIBLIOGRAPHY

Report Second Law commission report on Indian Penal Code (1838) 42nd Report on the Indian Penal Code, Law Commission of India (1971) Criminal Law Reforms on criminal justice System (2003) Report of the Committee on Reforms of Criminal Justice System, Government of India (1892)

Web sites https://judis.nic.in https://indiankanoon.com https://sci.gov.in htttps://lawcommissionofindia.nic.in https://livelaw.nic.in www.hindustantimes.com https://indiantoday.nic.in Books Pillai’s P.S.A Criminal Law 13th ed. Lexis Nexis (2018) Gaur K.D textbook on India Penal Code 6th ed. Universal Law Publication (2017) Mishra S.N textbook on Indian penal code 21st ed. Central law publications (2018) Ratanlal & Dhirajlal textbook on criminal law 23rd ed. Lexis Nexis (2018)