Adultery is likely to resurface under a different name. Until 2018, it was a crime punished by the Indian Penal Code (IPC). In reviewing the Bharatiya Nyaya Samhita (BNS), the Parliamentary Standing Committee on Home Affairs recommended that adultery be made a crime and that a gender-neutral clause be put in place.
The draught report of the committee suggests that the government investigate the possibility of introducing a gender-neutral provision that would criminalize adultery. This could involve either reinstating the IPC provisions that were overturned by the Supreme Court five years prior. Or introducing new provisions that would criminalize the same offense. But this suggestion has prompted a discussion and numerous questions.
Previous Law on Adultery
In the year 2018, the Indian Supreme Court overturned Section 497 of the Indian Penal Code, which dealt with adultery as a crime, in the case of Joseph Shine v. Union of India. A five-judge panel unanimously decided that the 158-year-old adultery statute was unconstitutional. The Supreme Court ruled that the idea that “the husband is the master of the wife” was no longer applicable and emphasized that the Constitution was broken by any law that affected women’s equality and dignity. “It’s time to say that the husband is not the master of the wife,” said Dipak Misra, the Chief Justice of India (CJI) at the time. It is incorrect for one sex to have legal dominance over another.
Adultery is still a reason for divorce, though, and instances involving adultery frequently come up in different courts. The Allahabad High Court rejected a man’s plea in September 2023 for a child’s DNA test, which he intended to use as proof of his wife’s alleged infidelity. His intention was to demonstrate that the boy was not his genuine son because he was not linked to him biologically. Notably, the kid was born nine months after the man and his wife—the respondent in this case—were married.
The Karnataka High Court decided in October 2023 that if a wife had an adulterous relationship. She was not entitled to support from her husband under section 12 of the Domestic Violence Act. The wife’s revision petition, which sought to overturn the sessions court’s ruling that had initially awarded her support as mandated by the magistrate court upon her application. It was denied by the High Court’s single-bench.
Parliamentary Panel Urges Gender-Neutral Criminalization of Adultery
A few review petitions contesting the decriminalization of adultery were submitted for review in 2020, but the Supreme Court ultimately rejected them. The bench, presided over by SA Bobde, the then-CJI, declared that there was no justification for considering these petitions. The courts decriminalized adultery with retroactive effect, eliminating the offense as a criminal offense. Furthermore, the Punjab and Haryana High Court used the ruling in the Supreme Court’s 2014 case of “Joseph Shine v Union of India” to strike down a 2014 complaint that declared adultery to be a crime.
Long before the 2018 decision that ultimately struck down the statute, Section 497 of the IPC. Which made adultery a crime—was being challenged. A man accused of adultery in the 1951 case “Yusuf Abdul Aziz v State.” He filed a plea in the Bombay High Court. Arguing that the statute violated his fundamental rights as stated in Articles 14 and 15 of the Constitution.
According to his attorney, the law does not treat everyone fairly because only men are penalized under Section 497 for adultery charges. While women escape punishment. Section 497 of the IPC was not invalidated, however, by the Bombay High Court’s division bench. Which was made up of Justice PB Gajendragadkar and then Chief Justice MC Chagla. In 2018, the Supreme Court’s five-member bench, led by then Chief Justice Dipak Misra, overturned this ruling.
Criminalization of Cheating
The criminalization of adultery has been recognized as a violation of women’s rights by the United Nations (UN). The International Covenant on Civil and Political Rights is violated when adultery is treated as a criminal offense. According to the UN Working Group on Discrimination Against Women and Girls. This is because it violates women’s right to privacy. Additionally, it violates the ban on discrimination in families included in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Working Group wrote to 33 countries in 2017 to voice concerns over the prosecution of adultery, including India.
The legislative committee is not the only one recommending the revival of the outmoded adultery statute. The concept of adultery has already been modified and included in the Bharatiya Nyaya Samhita. Which is meant to supersede the Indian Penal Code. Enticing or taking away or detaining married women with criminal intent is covered under Section 83, which states. “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman. Shall be punished with imprisonment of either description for a term which may extend to two years. Or with fine, or with both.”