Contemporary Marital Transformations Analytical Study vis-à-vis Decriminalization of Adultery

I. Introduction

The Indian constitution is a magnificent and monumental document which embodies concept of golden triangle of fundamental rights which has to be nurtured by the legislature and the judiciary. The laws in the country have to be in conformity with the fundamental rights provided by the Constitution. With the evolution in the society since the enactment of constitution, there has been growing precepts and progressive perceptions attached with the fundamental rights. In a country like India, where there has been a paradigm shift in social position of women since pre- constitutional era to modern India, the laws have been scrutinised and amended by the judiciary and legislature to uplift the stature of women to men in the society.

A pre-colonial law enacted by the British under Indian Penal Code, 1860 was the offence of ‘Adultery’ which was applied in the country until its decriminalization by the apex court in the landmark judgement of Joseph Shine vs. Union of India². The adultery law under the IPC was provided under Section 497 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. In such case the wife shall not be punishable as an abettor.³

A bare reading of the above section shows that it punished the offence of adultery committed by a man with a married woman without the consent or connivance of her husband. The main aspect in this offence is that only male offender was made liable. The husband of the adulterous wife was considered the victim of the offence. And if an act of sexual intercourse takes place between a married man and an unmarried, divorced or widow woman or with a married woman whose husband consents to it, this offence shall not be deemed to had been committed.

The section was an abhorrent demonstration of gender discrimination and violation of fundamental rights. Its constitutional validity had been challenged before the hon’ble Supreme Court many times post enactment of the constitution, but the same court which decriminalised it had upheld its validity for many years. The reason behind such transitional approach in decriminalisation of adultery by the apex court was to bring a regime of equality between men and women in the society. It was observed that legal subordination of one sex is chief hindrance to human improvement and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on one side, nor disability on the other.⁴

Like any other social phenomenon, the institution of marriage has experienced profound changes. For instance, taking consent from children for marriage or declining stability of the marriage. The emergence of new trends is seemly taking the Indian society to follow the western culture surpassing the traditional values. The author further has analysed the social transformation with respect to marriage in India through the journey of adultery as crime against marriage to its decriminalization in the modern society.

II. Judicial discourse on adultery law

In 1954, soon after enactment of the Indian Constitution, 1950, section 497 of IPC was challenged on the ground that the statutory provision was against the spirit of equality imbibed in the Constitution. In the case of Yusuf Abdul Aziz vs. State of Bombay⁵, a part of section 497 IPC was challenged which prohibited a woman from being prosecuted as an abettor. It was argued that provision discriminates in favour of women and against men only on the ground of sex. The Constitution Bench of the apex court construed the exemption granted to women from criminal sanctions as a ‘special provision’ for the benefit of women, which is protected under Article 15(3) of the Constitution. The Supreme Court supported the view of High Court of Bombay, as it observed: “What led to this discrimination in the country is not the fact that women had sex different from that of men, but that women in this country were so situated that special legislation was required in order to protect them, and it was from this point of view that one finds in section 497 a position in law which takes a sympathetic and charitable view of the weakness of women in this country.”⁶

After thirty years, the section was challenged before the Supreme Court again in Sowmithri Vishnu vs. Union of India⁷, wherein there was a marital dispute and divorce matter was in sub judice, the husband filed complain against the person with whom his wife was in adulterous relationship. Thereafter, constitutional validity was challenged by the wife before apex court on grounds that, first, section 497 confer a right on the husband to prosecute the adulterer, it does not confer upon the wife, the right to prosecute the woman with whom her husband committed adultery; second, section 497 deprive right to the wife to prosecute her husband who committed adultery; and third, it does not cover cases where a man has sexual relations with an unmarried woman. It was urged before the court that the provision is facially beneficial but, in reality it is based on notion of paternalism which assumes women as chattels and property of men. But the court then addressed with the constitutional challenge by approaching the discourse on the denial of equality in formal, and instead in narrow terms. The court construed the plea of the Petitioner as being a suggestion of making the offence of adultery gender neutral and recasting it. The court observed it as a matter of legislative policy and that judiciary could invalidate the provision only when constitutional violation is established. The power of amendment to any law lies with the legislature, court said. The error in Sowmithri Vishnu lies in holding that there was no constitutional infringement and brushing aside the argument that in changed social transformation in feminine attitudes and status of women in marriage, section 497 is a flagrant instance of gender discrimination, legislative despotism and male chauvinism.

In V. Revathi vs. Union of India⁸, the constitutional propriety of section 198(2) read with section 198(1) of Criminal Procedure Code, 1973 was challenged before the apex court. The section empowers only the husband of adulterous wife to prosecute the adulterer but did not permit the wife to prosecute the promiscuous husband. It was argued that such disability for a wife is unlawful and premised on gender discrimination and inequality which is contravening the Constitution under right to equality⁹ and prohibition against discrimination on grounds of sex¹⁰ thus, leading to obnoxious discrimination. The court then observed that: “The community punishes the ‘outsider’ who breaks into a matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman is not liable. There is reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The husband also, is not permitted because the adulterous wife is immune from prosecution as well. Therefore, the wife is not permitted the right to prosecute. In ultimate analysis, the law has meted out even handed justice to both of them in matter of prosecuting each other or securing the incarceration of each other”.¹¹ Hence, the legislative packet of section 497 IPC and Section 198(2) of Crpc was upheld which according to court are applicable simultaneously.

The constitutional validity of Adultery law under section 497 is upheld ostensibly with a narrow ideology that it is favourable to women by keeping her out of the purview of any right or liability under the criminal law. It is obvious that no adultery can be committed unless the woman consents for it. The judicial perception that only ‘an outsider’ has potential to invade peace, privacy and harmony of a matrimonial unit, who can only be a man seemed to be unrealistic. Similarly, the judicial opinion that Section 198(1) read with Section 198(2) Crpc, which disqualifies wife being an adulterous woman from prosecution is gravely illogical. Such reasonings, in ultimate analysis endorses patriarchy, property-oriented and gender discriminatory laws in the society. It conveys discriminatory notions that man is entitled to have exclusive possession and access to his wife but, in contrast, the wife is not eligible to have exclusive right and claim on her husband.

The approach in all the three verdicts are predominantly premised on moot assumptions pertaining to female sexuality and the inability of higher judiciary to appreciate social transformation.

III. Judicial reasoning for decriminalization of adultery

In Joseph Shine vs. Union of India¹², a landmark judgement was passed by five-judge constitution bench of the Supreme Court of India in which a century old provision under Section 497 of the Indian Penal Code,1860 along with the procedural provision under Section 198(2) of Criminal Procedure Code, 1973 was declared unconstitutional by virtue of the golden triangle of the Indian Constitution.

The court recognised that Section 497 is replete with anomalies and incongruities, such as:

i. It is only male-paramour who is punishable for the offence, the woman who is pari delicto with the adulterous male, is not punishable even as an ‘abettor’.

The exclusion of adulterous woman is solely on the basis of gender and cannot be prosecuted for adultery.¹³

ii. The section gives right of prosecution to husband of adulterous wife only, in contrast to it, wife of adulterous husband has no similar right.

iii. Section 497 Indian Penal Code read with Section 198(2) of Code of Criminal Procedure, 1973 empowers only the aggrieved husband, of a married wife entering into adulterous relation with some other man, to initiate proceedings.

iv. The act of married man engaging into adulterous relationship with unmarried or divorced woman, does not constitute the offence of ‘adultery’.

v. If the adulterous relationship between a man and a married woman is with the consent and connivance of her husband, it would not constitute offence of adultery.¹⁴

The anomalies in the law, as stated above rendered the provision to being arbitrary and discriminatory. Any legislation which situates persons unequally, or discriminate on basis of sex, is liable to be struck down being violative of Article 14 and 15¹⁵, which forms pillars against the evil of arbitrariness and discrimination.

The aforesaid law is based on the historical context during British-India in 1860 when the Indian Penal Code was enacted as at that time, women had no rights independent of their husbands and treated as property or chattel resulting the offence of adultery seen as ‘theft’ of property by another man. The deprivation of right to prosecute by woman for marital infidelity is ex facie discriminatory. Thus, it cannot withstand the test of Article 14¹⁶ and, such law is liable to be struck down.

The apex court opined that a law could have been justified at the time of enactment but with the passage of time may become outdated and discriminatory due to the evolution of society and changed circumstances.

Section 497 of IPC, historically, was framed in context that infidelity of the adulterous wife should not be punished because of the plight of women in the country during late 19^th century, as they were married while they were children, or very young sharing attention of husbands with several rivals.¹⁷ The supreme court countered this reasoning in this case by stating that:

‘This situation is not true 155 years after the provision was framed. With passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society.’¹⁸

The purpose of Article 15(3) of the Indian Constitution, is to ensure socio-economic equality and permits some special legislations/provisions for special classes. However, it cannot operate as a canopy for liabilities under penal offences under the guise of protective discrimination.

The top court scrutinised the law on whether there is sufficient criminal element of wrongfulness against the society in general to bring adultery within ambit of penal law. Criminal sanction maybe justified where there is ‘public element’ in the wrongful act. Adultery is definitely a moral wrong qua the spouse and the family but the element of public censure, delinquent with penal consequences would have been justified only when there is a direct impact on the society through such conduct.

Under Article 21¹⁹, right to live with dignity includes right not to be subjected to pubic censure and punishment by State except where absolutely necessary. In order to determine the conduct requiring criminal sanction, there must be consideration on whether civil remedy will serve the purpose or not. In this case, the court held that civil remedy for a wrongful act is sufficient, and it may not warrant criminal sanction under Indian Penal Code.²⁰

IV. Critical analysis

The decriminalisation of adultery in Joseph Shine vs. Union of India²¹ was a reformatory judgement for conduct of ‘adultery’ in a marital relationship. But the pivotal highlight in the judgement by the bench was related to married women only. The rights of a man involved in adulterous relationship who was considered solely liable for the consensual act have been overlooked. The sexual act performed by two persons consensually and the man being criminally booked only, was a clear violation of his fundamental rights. The verdict has also failed to address the innocent partners whose marital partners involve into the act of adultery, mentioning that only civil remedy would suffice for the act, which is divorce. The main issue which arises here, is divorce remedy sufficient for the innocent partners? Can this lead to an escalation of divorce rate in India or it is indirectly legalising adultery as many partners won’t seek a divorce for the act of adultery from their adulterous marital partner? Also, the judgement did not explicitly hold that court has legalised adultery, but the consequence in the society might reflect such scenario. The judgement is also mute on the making adultery a gender-neutral offence. It has mentioned about various recommendations of law commission reports, 42^nd Report of Law Commission²² in 1971 recommended that adulterous woman must be made equally liable for prosecution and punishment be reduced from 5 years to 2 years. In 1997, the 156^th Report of Law Commission of India²³, recommended to introduce amendment incorporating the concept of equality between sexes in marriage vis-à-vis the offence of adultery. Also, in 2003, the Malimath Committee on Reforms of Criminal Justice System²⁴, suggested to make the law as ‘Whoever has sexual intercourse with the spouse of any other person is guilty of adultery’. None of the recommendations were accepted, and the Supreme Court mentioned about these recommendations but did not propose any positive or negative perspective on them. The court neglected the aspect that adultery may cause substantial mental injury to the innocent partner and the grave impact on the mindsets of children, leading to loss in values considering marriage as a sacrosanct institution.

V. Social transformation in india w.r.t marriage

Marriage is an important social institution in every society around the world, like any other social phenomenon, it has experienced profound changes. The marriage is the basic unit of society due to the role it plays in generation of human capital resources and the power that is vested in it to influence indivisual, household and community behaviour.²⁵ Change is law of nature and everything in the world is bound to change. Hence, institutions like family and marriage have been influenced by the societal forces. The changes and reasons for such transformation occurring in the marriage pattern are-

Economic Factors: There has been a remarkable development in education for both men and women, increasing urbanization and involvement of women in economic activities and equal footing to men outside household culture. This has boosted self-respect, self-confidence and independence in men and women. Another factor affecting is materialism. The primary affect of these affluence is marriage breakdown in case of incompatibility between the couple and people can afford the expenses of divorce. Earlier, divorce was a taboo in India considering marriage a dharmic institution but with progression in society judicial separation, annulment of marriage and right to get divorce are comprehensively part of the laws and society.

Social Factors: During past times, there was joint family structure and interdependence of family members and women were considered dependent on men for survival, there were closely interacting community. In the transitional period, urban and affluent society, work patterns have changed which reduced necessity to interact with community giving rise to individualism.²⁶ The society has become increasingly complex through structural differentiation and specialization. The institution of marriage has gone a tremendous change in terms of living conditions, values, norms and traditions of patriarchal society. For instance, the judicial separation or divorce were based on Fault Theory or Guilt Theory under Hindu Marriage Act,1955 which required one party to be at some fault due to which divorce was seek. However, later Consent Theory was introduced wherein couple can seek divorce with mutual consent without any allegations or counter allegations. Further, Irretrievable Breakdown Theory was included in the laws under which marriage without any possibility of repair could be dissolved. These reformative theories were accepted in the Indian Laws to adapt to the dynamic societal conditions w.r.t marriage and separations.

Psychological Factors: In the past, for women the greatest personal achievement and source of reward was to get married, raise children and ensure optimal home. On the other hand, for men, it was maintaining good employment, marriage and adequate support to family. However, increasing urbanization, westernisation and institutionalism have stimulated ethos of individualism encouraging both men and women to realize their own potential. Now, the demand is for an egalitarian family structure in areas of child rearing, decision making, finances and even household tasks departing from traditional marital roles.

Legislative Factors: The legislative measures post-independence till now, have helped change the nature of institution of marriage. Many values, ideals and rules of marriage laid down under the Hindu Shastras have lost their original meaning and form converting into modern marriage norms followed by the society. There are laws related to every aspect of marriage like age of marriage, mate selection, number of spouses, breakage of marriage, remarriage etc. Laws for inhuman practices like sati, child marriage, dowry have also been part of the prohibitions under Indian laws. Through appropriate amendments and judicial recognitions, the social changes in all these areas have been recognised.

VI. Emerging new institutions

Besides transformation in structure and laws related to marriage, there has been a reform in marriage patterns, especially in metropolitan and urban areas in the country. With the advent of modernization, industrialization and urbanization, traditional outlook took a backseat in the society, the Traditional marriage is now considered as a loss of individuality, loss of privacy, lack of freedom, lack of individual growth, lack of social and sexual variety, dissatisfaction with spouse, sexual frustration, problem with in-laws etc²⁷. All this has resulted into change in form and purpose of marriage. The emerging institutions include:

LGBTI Marriage

Post struck down of Section 377 of IPC in Navtej Singh Johar vs. Union of India²⁸, It is pertinent to note that people belonging to the transgender community and people with intersex identity have registered their marriages under the said Special Marriage Act, 1954²⁹. There is no express provision yet to legalising LGBTI marriage, but the enactment of Transgender Persons (Protection of Rights) Act 2019 is a ray of hope in the progressive society for soon to legislate or amend laws for homosexual marriages.

Prenuptial Agreement

Prenuptial Agreement is a formally written agreement, signed, registered, recognized and also notarized by a couple before marriage. It contains provisions related to division of assets, liabilities, child custody, maintenance or alimony³⁰. The concept is very popular in European Countries, Canada, Italy, France, Germany etc. But in India, prenuptial agreement concept is at a developing stage. Although there has been a positive trend in favour of recognition to prenuptial agreement by the judiciary. For instance, in Commissioner of Income Tax vs. Mansukhrai More³¹, the High Court of Calcutta held transfer of property according to prenuptial agreement for fulfilling of commitments was justified and did not attract section 16 of Income Tax Act. In Sunita Devendra Deshprabhu vs. Sitadevi Desphprabhu³², prenuptial agreement was considered as a valid document while deciding dispute of separation of assets. Due to absence of any legislative reference, whether prenuptial agreement will be given effect to by the court remains an uncertain question. In spite of it, an increasing number of young couples showcase preference for entering into prenups. In cities like Mumbai and Delhi, almost 20 percent marriages are reported to be involving into such agreements.³³

Live-in Relationship or Cohabitations

There has been a drastic change in the Indian society with regard to the living pattern in recent years. People have an open-minded approach towards the idea of pre-marital sex and live-in relationship. Unlike marriage, unmarried couples in live-in relationship, stay together under same roof resembling a relation like marriage. The reason behind cohabitations is to check the compatibility between couples before getting legally married. This eliminates future family chaos and lengthy court proceedings in case of break ups. But, in legal terms, there is no particular law governing the matter in India. However, for safeguard of live-in partners, Protection of Women from Domestic Violence Act,2005 acknowledge right of partner in cohabitation for protection. In contrary, the Indian judiciary has been the forerunner in providing recognition to such arrangements through various judgements. In landmark case of S.Khushboo vs. Kanniammal³⁴, the Supreme Court held that live-in relationship/cohabitation comes within the ambit of Right to Life under Article 21 of Indian Constitution,1950. The court stated that a live-in relationship is permissible and such act of two adults living together cannot be considered illegal.

Contract Marriage

A contract marriage can be considered a new fad in the modern society, but in Indian, the popularity of such institution is marginal till now. But, the trend of contract marriage is setting in slowly as it retains benefits of both marriage and a live-in relationship. Generally, such marriages are meant for a duration of one to three years. The concept of contract marriage is not applicable in India, neither under the laws nor sanctioned by the judiciary. But, few lawyers have opened up about seeking legal advices and dealing with cases in regard to contract marriages in India³⁵.

VII. Impact of national lockdown on marriages in india

As the nations around the world grapple with the global pandemic COVID-19 by imposing lockdown, the dynamics of social relations are changing. The national lockdown forced people to stay at home with their respective families, spouses and children. Though, violence against women exponentially rose worldwide, the National Commission of Women in India reported ninety four percent rise in complaints about abuse against women at homes. This reveals the condition of so-called progressive society in the country where women are still considered vulnerable and face such brutality within their homes. But along with this, we cannot disregard the positive facet of the same as it helped couples to overcome communication barriers occurring due to personal or professional loads, to introspect and realise the valuable existences in life. People started paying more attention towards self-awareness, the life-threatening virus side-lined the egos, high expectations, grandiosity etc making couples humbler for each other and realise true source of happiness. Many imbibed a habit of listening and paying attention to one another which was becoming one of the greatest barriers in success of contemporary marriages and other social institutions. There has been a realisation regime during lockdown that whether the sacrosanct tie is a forced togetherness or it has awakened a spiritual connect with love and detachment.

VIII. Conclusion

There has been a paradigm shift in the norms and perspectives with respect to marriage in India. The traditional meaning of ‘marriage’ being a sacrosanct tie between a man and a woman has been faded with the revolution towards progressive society. At such juncture, there is necessity of certainty of law, yet with social changes, the rights are expanded by the Courts in respect of certain aspects reflecting perceptions of organic and living Constitution. Therefore, it is not apposite to have rigid stand on the ancient foundations behind the laws to continue in ever changing human society. The progression and perceptual shift of present compels legislature and judiciary to adapt and evolve.

One major instance can be decriminalization of adultery wherein the judiciary struck down 155-year-old provision Section 497 of IPC dealing with offence of Adultery along with its procedural aspect in Section 198(2) of Criminal Procedure Code. The apex court overruled its previous judgements on the same issue on the basis of developments in constitutional interpretations with respect to Fundamental Rights and evolution in status of women in contemporary India. But the author is of the view that any law or judgement based on radical notions and values, is however, desirable and reformative yet cannot succeed unless the society is prepared for it. Any untimely legal reform instead of doing good to society, may cause unimaginable damage, instead, the required change can be brought in gradual stages. Currently, the economic and social sufferings due to COVID-19 have an unforgettable impact on every aspect of life. There has been negative as well as positive influences on social relationships due to the nationwide lockdowns. Now, the unlock regime is in process and the resultant impact on social relationship is still ongoing.

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