DECRIMINALIZATION OF ADULTERY: THE ONLY BLOT OF MARRIAGE INSTITUTION

by Ridhima Sharma


INTRODUCTORY FACTS

Marriage institution has been the purest form of relationship between two souls and both are at par in fulfilling their responsibilities and obligations of this institution. Both of them enjoy equal status and dignity among the society; but now this institution is being degraded by the unscrupulous thoughts of some evil minds which is the biggest ridicule of these seventy-three years of independent and sovereign India. And decriminalisation of adultery is predominantly playing a paramount role in defiling the purity of the marriage institution; which should be criminalised by legislators and judicators for the maintaining the sanctity of marriage institution.


THE TRANSFORMATION OF 150 YEAR- OLD – PROVISION

To begin with, the previous stand of judiciary was that adultery is not paradoxical of article 21[1] of constitution of India; but recently supreme court has acknowledged adultery as unlawful, which treats husband as master of his wife. Summarily, the court held that husband is not the master of his wife and section 497[2] of Indian Penal Code, 1860, is arbitrary and absurd because it provides the unrestricted rights to husband to treat the woman in the way he likes.

The landmark decision has been through many challenging dissensions and recommendations and among them, there are three cardinal verdicts of court under which adultery has been challenged, but the court has not made the sufficient changes to the existing provision until the final verdict of striking down of adultery in the year 2017.

Moving ahead, under Yusuf Aziz v. State of Bombay[3], the petitioner challenged this law for the first time as it violated the article 14 & 15 of constitution, and, the supreme court held that the man is the one who is the seducer and that the woman could only be victim of adultery and not perpetrator. Furthermore, under the Sowmithri Vishnu v. Union of India[4], supreme court held that provision is not discriminatory between man and woman and; men were not allowed to prosecute their wives for the offence of adultery for the protection of sanctity of the marriage and for same reason, the women could not be allowed to prosecute their husbands. Moving forward, under V. Revathi v. Union of India[5], supreme court held that not including women in prosecution of adultery has promoted the social good. Court observed that adultery law was a shield rather than a sword.

Furthermore, under the landmark decision of Joseph Shine v. Union of India[6], the joseph shine, who was a hotelier from Italy, approached the court in public interest and filed a petition challenging the validity of the section 497. The judgment held the following pointers:

(1) Section 497 is archaic and constitutionally invalid as section is denial of substantive equality and that it reinforces the notion that women are unequal participants in a marriage, and they regards them as a sexual property of their spouse and thus, is violative of article 14[7]. Along with this, it also violated article 15[8] as it is based upon gender stereotypes. Moreover, the consent of husband tantamount to the subordination of women and it infringe the article 21 of constitution.

(2) The section is no longer a criminal offence, as the adultery is more of a personal issue rather than criminal socio-legal offence. Declaration of adultery as a crime would creep injustice into system. However, it continues to stand as a civil wrong and a ground of divorce.

(3) The section is absolutely arbitrary, as it does not enable wife to file any criminal prosecution against husband and declared section 198(2) of CRPC[9] as unconditional.

Therefore, under this judgment, the supreme court has decriminalised the provision of adultery on the ground of discrimination of gender, which has been indeed the pragmatic approach to make the law gender neutral. But the decriminalisation of adultery has threatened the marriage institution as it questions upon the sanctity of marriage.

THREAT TO MARRIAGE INSTITUTION

Marriages in India are viewed as the sacred union of not just man and wife, but of their families involved, thereby society as a whole and the act of adultery is posing the major threat to the sacredness of this sacrosanct institution and it ought to be criminalised for the welfare of the society.

It has been the need of hour to make gender neutral the law of adultery but it shouldn’t amount to legalise the act of adultery as it will surged up the divorce rate as well as the suicide attempts as there is no protection with the sufferer except to end the marriage which badly affects the purity of the marriage among the legal partners. Moreover, the emergence of divorce as the way out will catalyse the break-up of marriage, leaving little children in the lurch; the court should have guarded the children, by legitimising the adultery.

Moving forward, at the time of verdict, the Bhartiya Janta Party led National Democratic Alliance has said that the striking down the adultery would destroy the institution of marriage. Moreover, the ministry of Home Affairs added, “It is submitted that striking down the section 497 IPC and 198(2) CRPC will prove to be detrimental to intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.” Adding to this, the ministry of Home Affairs, in affidavit, has appealed to the supreme court to dismiss the plea challenging validity of section 497 on the ground that it does not make both men and women equally liable for crime of adultery.

After having discussed the above facts, it can be affirmed that the adultery should be criminalised equivocally upon men and women and the section 198(2) od CRPC should be struck down and the adultery should be made a criminal offence to safeguarded the sanctity of marriage instead of making it merely a civil wrong and a ground of divorce which only added up to the depraved ones' sufferings.

JUDICIAL PRONOUNCEMENTS

The courts have argued for the preservation of the sanctity and purity of the marriage institution whenever the need arises. Lordships[10] observed that, “The sanctity of marriage is in essence, the foundation of civilisation and, therefore, court owe a duty to society to strain to the utmost to repair the snapped relation between the parties. This task becomes more insistent when an innocent off-spring of the wedding struggle in between the disputed parents.” Furthermore, the court observed that, “ Marriage tie be continued till the last breadth of the spouse and shouldn’t be untied during the subsistence of their marriage.[11]” Thus, the sanctity of marriage should not be broken until the last breadth of the partners and they should tried their best to maintain their relationship and if anyone betrays, then court should intervene to deliver justice to the deprived spouse by deterring the adulterer, despite of their gender discrimination.

Moving further, judges impress upon the spouses to save the sanctity of marriage between them; they should not break the tie specially when their only innocent minor child would suffer most in the wedding struggle between themselves[12]. Therefore, the minor children always supposed to suffer the most from the breakdown of marriage which has become irreparable eventually; so to protect the pupils from the unfortunate consequences, the deterrence should be inflicted upon the adulterers to preserve the holy institution of marriage.


SOME REPORTED DATA ON DIVORCE & SUICIDE

It is true that more women are divorced than men, wherein, some women may not report divorce because of stigma attached to the divorcee. Adultery and incompatibility are two common reasons that are cited for breakup of marriage. It is reported that 1.36 million people in India are divorced; divorce rates are relatively higher in north-east states than elsewhere in India. Gujarat reports maximum number of divorce rates followed by Assam, Maharashtra, West Bengal.

Apart from the divorce rate, according to WHO[13], nearest 8,00,000 people die due to suicide every year, which is one person every 40 seconds. It is second leading cause of death among 15-29 year olds globally. Under 2014, the 6,773 deaths caused due to marriage issues[14].

Thus, resultantly, the divorce and suicide rate will be multiplied by days, if the committal of adultery will goes uncontrollably and it will hampers the marriage adversely, so in order to control these inescapable impacts, the court should review its decision to make the offence penalised to punish the adulterers.


CONCLUDING REMARKS

To epitomize, the marriage which has been the most purest relationship has become the most unsecured and unwarranted relationship since it has been lacking the security diurnally, which has also hikes up the divorce as well as the suicide rates. Along with the partners personal interests, their familial relationships also got disrupted due to the adulterous relationship of companion. The legal punishment should be sever when the trust bearers turned into trust breakers, leading the whole relationship in vain and therefore, the judgment should be checked upon again and adultery should be criminalised irrespective of the gender to shield the marriage institution.

[1] Right to life and personal liberty. [2] Definition of Adultery. [3] Yusuf Abdul Aziz v. State Of Bombay 1954 AIR 321, 1954 SCR 930 [4] Smt. Sowmithri Vishnu v. Union Of India and Anr 1985 AIR 1618 [5] V. Revathi v. Union Of India and Ors. 1988 AIR 835 [6] Writ petition (criminal) No. 194 / 2017 [7] Right to Equality [8] Prohibition of discrimination. [9] Prosecution of offences against marriage. [10] V. K. Gupta v. Smt. Nirmala Gupta, special leave petition (Civil) No. 3661/ 78 [11] Suresh Nathmal Rathi and Ors. v. State od Maharashtra And Another 1992 CriLJ 2106 [12] Rup Jyoti Das v. Beron Saikia AIR 2006 Gau 125 [13] World Health Organisation [14] World Health Organisation

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