DOES DECRIMINALIZING ADULTERY MADE EXTRA-MARITAL AFFAIRS LEGAL IN INDIA?

SUBMITTED BY: Trishani Naha

UNIVERSITY NAME: JIS University

YEAR – 4th

SEMESTER – 7th

Does decriminalizing adultery made extra-marital affairs legal in India?

Yes, decriminalizing adultery made extra-marital affairs legal in India.

India's top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which said it treated women as male property. Previously any man who had sex with a married woman, without the permission of her husband, had committed a crime.

Introduction

According to Section 497 of the 158 year old IPC says “ 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. In such a case, the wife shall not be punishable as an abettor.

A five-judge Constitution bench headed by Chief Justice Dipak Mishra was unanimous in striking down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity to women. Senior Supreme Court lawyer Prashant Bhushan termed the verdict a fine judgement that did away with an "antiquated" law.

Another fine judgement by the SC striking down the antiquated law in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery (only of man who sleeps with someone's wife). Adultery can be ground for divorce, but it is not a crime.

 

Negative implications

There are equivalent negative implications of decriminalizing adultery. According to me, criminalization of adultery is necessary for the smooth running of society. The act of adultery is not acceptable in our Indian culture and hence considered as an immoral act by society. To adopt western culture, we will be destroying our traditional institution of marriage. The adultery is legalized in western countries and due to this divorce rates are also higher.

Firstly, it will encourage extra-marital affairs leading to conflicts in families and it may lead to a greater number of divorce cases. Secondly, it may have a negative impact on children in case of separation between wife and husband. Thirdly, it will destroy the ancient institution of marriage and culture in India as it promotes western culture.

We are also in the same race and to stop following the same trend, it is necessary not to promote extra marital affairs and thus adultery should be made a punishable offence. The adulterous act would definitely be going to encourage extra- marital affairs which will ultimately lead to high level family conflicts.


Secondly, it would result in increased number of divorce cases which would ultimately affect the nourishment of child and his or her future. Sarcastic comments of society to the spouses of parties indulged in adultery, could even lead to increase in suicidal rates. This means that legalizing of adultery will not only result into breaking of matrimonial sanctity but also loss of an innocent life. Decriminalizing of adultery is not a gender-neutral law instead of that it is leading to exploitation of sanctity of marriage.

 

Conclusion

At last, I would like to conclude that decriminalizing of adultery is one of the historic judgments and may be accepted by many, but according to me it is one of the overwrought judgments in the history of Indian judiciary. Although the verdict had been pronounced with the view to insert positive implications, but somewhere, court had neglected its adverse effect.

Courts should have kept in mind the sacred bond of marriage between the couples but here, court had come forward with such a decision that itself increases a hope that the marriage will be broke out. The main objective of decriminalizing of adultery was to remove gender biased law and that husband could no more control the wife's autonomy and right of life. But this will cause a negative impact by raise in number of divorces.

This will curb the sanctity of marriage. I support the opinion of Supreme Court that wife should not be considered as a property of husband and thus he should not have restricted his wife's sexual autonomy, but decriminalizing adultery cannot be a proper solution to this. Criminalization of adultery earlier had created a strong deterrence against commission of adultery but now decriminalization had eliminated this fear and led the external factors to impact the marriage institution. This had vast impact on children's future too as for better development of children, the most important thing required is both the parents and healthy environment which will not be there after the divorce.

Moreover, this will have a very bad effect on the minds of the children that either of their parents were having an affair elsewhere. Our legal system should not decide the one's sexual autonomy but must lay down regulations regarding the mechanism of separation in case if one of the couples had violated the purity of marriage. Thus, Parliament needs to have a look in the adultery verdict and correct the damages done by the latter.

References

 

http://legislative.gov.in/sites/default/files/A1860-45.pdf

 

https://economictimes.indiatimes.com/news/politics-and-nation/sc-verdict-on-adultery-welcomed-by-lawyers-activists/articleshow/65977845.cms?from=mdr

 

https://blog.ipleaders.in/legalising-adultery-in-india/

https://blog.ipleaders.in/legalising-adultery-in-india/