BRIEF THEOLOGICAL AND CONCEPTUAL HISTORY OF ADULTERY : -
The word „adultery‟ derives its origin from the French word „avoutre‘, which has evolved from the Latin verb „adulterium‘ which means “to corrupt.” The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as „adultery‟.
This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the „property‟ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an „abettor‟, even though the relationship was consensual.
THE DOCTRINE OF COVERTURE Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc. In England, coverture determined the rights of married women, under Common Law. A „feme sole‘ transformed into a „feme covert‘ after marriage. „Feme covert‘ was based on the doctrine of Unity of Persons‟ – i.e. the husband and wife were a single legal identity.
In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.
Almost all ancient religions/civilizations punished the sin of adultery. In one of the oldest, namely, in Hammurabi‘s Code, death by drowning was prescribed for the sin of adultery, be it either by the husband or the wife. In Roman law, it was not a crime against the wife for a husband to have sex with a slave or an unmarried woman. The Roman lex Iulia de adulteriis coercendis of 17 B.C., properly so named after Emperor Augustus‘ daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of adulterers generally, both guilty parties were sent to be punished on different islands, and part of their property was confiscated.
In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment – ―Thou shalt not commit adultery‖ – set out in the book of Exodus in the Old Testament. Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress.
In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul‘s letter to the Corinthians. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, ―let him who has not sinned, cast the first stone.
In Bharata as well, in the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, 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.
In Islam, in An-Nur, namely, Chapter 24 of the Qur‘an, Verses 2 and 6 to 9 read as follows:
"The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement
And those who accuse their wives and have no witnesses except themselves, let one of them testify four times, bearing Allah to witness, that he is of those who speak the truth.
And the fifth (time) that the curse of Allah be on him, if he is of those who lie.
And it shall avert the chastisement from her, if she testify four times, bearing Allah to witness, that he is of those who lie.
And the fifth (time) that the wrath of Allah to be on her, if he is of those who speak the truth.
What is interesting to note is that if there are no witnesses other than the husband or the wife, and the husband testifies four times that his wife has committed adultery, which is met by the wife testifying four times that she has not, then earthly punishment is averted. The wrath of Allah alone will be on the head of he or she who has given false testimony – which wrath will be felt only in life after death in the next world."
In sixth-century Anglo-Saxon England, the law created ―elaborate tables of composition‖ which the offended husband could accept in lieu of blood vengeance. These tables were schemes for payment of compensation depending upon the degree of harm caused to the cuckolded husband. However, as Christianity spread in England, adultery became morally wrong and therefore, a sin, as well as a wrong against the husband. Post 1066, the Normans who took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical offence dealt with by the Church. The common law of England prescribed an action in tort for loss of consortium based on the property interest a husband had in his wife. Thus, the action for conversation, which is compensation or damages, usually represented a first step in obtaining divorce in medieval England. In fact, adultery was the only ground for divorce in seventeenth-century England, which had to be granted only by Parliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell‘s Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the restoration of the monarchy‘. It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife. This tort is adverted to by a 1904 judgment of the Supreme Court of the United States in Charles A. Tinker v. Frederick L. Colwell, 193 US 473 (1904), as follows:
We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her;
that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband‘s rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful…… The assault vi et armis is a fiction of law, assumed at first, in early times, to give jurisdiction of the cause of action as a trespass, to the courts, which then proceeded to permit the recovery of damages by the husband for his wounded feelings and honour, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.
To similar effect is the judgment in Pritchard v. Pritchard and Sims,  3 All E.R. 601, which reconfirmed the origins of adultery or criminal conversation as under:
―In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, there existed side by side under the common law three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her. …… In the action for adultery known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband‘s losing his wife‘s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband‘s propriety interest in the person of his wife, her services and earnings, and in the property which would have been hers had she been feme sole.
When we come to India, Lord Macaulay, in his draft Penal Code, which was submitted to the Law Commissioners, refused to make adultery a penal offence. He reasoned as follows:
―The following positions we consider as fully established: first, that the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly, that scarcely any native of the higher classes ever has recourse to the Courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in cases of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider their wives as useful members of their small household, that they generally complain not of the wound given to their affections, not of the stain on their honor, but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the woman may be sent back.
However, when the Court Commissioners reviewed the Penal Code, they felt that it was important that adultery be made an offence. The reasons for so doing are set out as follows:
" Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate. We conceive that Colonel Sleeman is probably right in regarding the difficulty of proving the offence according to the requirement of the Mohammedan law of evidence, which demands an amount of positive proof that is scarcely ever to be had in such a case, as having some effect in deterring the Natives from prosecuting adulterers in our courts, although the ( Vide - A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press, 1837).
497 STRUCK DOWN :-
PREVIOUS CHALLENGES TO ADULTERY IN INDIA This court has previously considered challenges to Section 497 inter alia on the ground that the impugned Section was violative of Articles 14 and 15 of the Constitution.
In Yusuf Abdul Aziz v. State of Bombay 1954 SCR 930, Section 497 was challenged before this Court inter alia on the ground that it contravened Articles 14 and 15 of the Constitution, since the wife who is pari delicto with the adulterous man, is not punishable even as an “abettor.” A Constitution Bench of this Court took the view that since Section 497 was a special provision for the benefit of women, it was saved by Article 15(3) which is an enabling provision providing for protective discrimination.
In Yusuf Aziz (supra), the Court noted that both Articles 14 and 15 read together validated Section 497.
Later, in Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137 , a three-judge bench of this Court addressed a challenge to Section 497 as being unreasonable and arbitrary in the classification made between men and women, unjustifiably denied women the right to prosecute her husband under Section 497.
It was contended that Section 497 conferred a right only upon the husband of the adulterous woman to prosecute the adulterer; however, no such right was bestowed upon the wife of an adulterous man. The petitioners therein submitted that Section 497 was a flagrant violation of gender discrimination against women. The Court opined that the challenge had no legal basis to rest upon. The Court observed that the argument really centred on the definition, which was required to be re-cast to punish both the male and female offender for the offence of adultery. the Court noted that there were two opinions on the desirability of retaining Section 497. However it concluded by stating that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books.
The Court repelled the plea on the ground that it is commonly accepted that it is the man who is the „seducer‟, and not the woman. The Court recognized that this position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the „transformation‟ which the society has undergone.
In V. Revathi v. Union of India (1988) 2 SCC 72 , a two-judge bench of Apex court upheld the constitutional validity of Section 497, I.P.C. and Section 198(2) of the Cr.P.C. The petitioner contended that whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter on the wife in prosecuting her adulterous husband. Hence, the relevant provision is unconstitutional on the ground of obnoxious discrimination.
Apex Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package. In essence, the former being substantive, and the latter being largely procedural. Women, under these provisions, neither have the right to prosecute, as in case of a wife whose husband has an adulterous relationship with another woman; nor can they be prosecuted as the pari delicto.
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 wherein a nine-judge bench of this Court held that the right to make decisions on vital matters concerning one‟s life are inviolable aspects of human personality. This Court held that:
"― 169. ….. 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 freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. 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….‖ (Emphasis supplied)
ADULTRY STRUCK DOWN IN THIS JUDGMENT :-
Supreme Court of India
Joseph Shine vs Union Of India on 27 September, 2018
Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution.
Section 497 of the I.P.C. it is placed under Chapter XX of “Offences Relating to Marriage”.
The provision of Section 497 is replete with anomalies and incongruities, such as:
i. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery.
The woman who is pari delicto with the adulterous male, is not punishable, even as an „abettor‟.
The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery
ii. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.
iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.
iv. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute „adultery‟ under Section 497.
v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery. The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.
The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.
Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied:
i. The classification is made on the basis of an „intelligible differentia‟ which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and ii. The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.
The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis, or a nexus with the object sought to be achieved.
With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved. Section 497 of the I.P.C., makes two classifications:
i. The first classification is based on who has the right to prosecute:
It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery.
Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.
(A legislation may not be amenable to a challenge on the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary).
ii. The second classification is based on who can be prosecuted.
It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence.
The aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or „property‟ of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a „theft‟ of his property, for which he could proceed to prosecute the offender.
The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone.
A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.
A law which could have been justified at the time of its enactment with the passage of time may become out- dated and discriminatory with the evolution of society and changed circumstances. What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic.
Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens.
Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.
The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as „beneficial legislation‟. Apex Court in Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by Lrs. And Orsheld that :
―Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or religion.‖ In W. Kalyani v. State58 this Court has recognised the gender bias in Section 497. The court in Kalyani (supra) observed that “The provision is currently under criticism from certain quarters for showing a string gender bias for it makes the position of a married woman almost as a property of her husband.” The purpose of Article 15(3) is to further socio-economic equality of women. It permits special legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences.
A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.
The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage.
The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.
In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted. Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.
The issue remains as to whether „adultery‟ must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce. 16.1. One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage.
Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.
Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole.
Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence.
The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.
To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing.
The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the „best interest‟ of the individual.
Andrew Ashworth and Jeremy Horder in their commentary titled „Principles of Criminal Law ‟have stated that the traditional starting point of criminalization is the „harm principle‟ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a criminal offence.
John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong. That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.
In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.
Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?
The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.
The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.
The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.
In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated above, it is declared that :
(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.
(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled."
SECTION 498A :-
the extramarital relationship cannot be treated as an act for commission of an offence under Section 306 IPC.
In Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48 , the Court has held :-
―27. Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra- marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” [Emphasis added]
In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat(2015) 11 SCC 753, has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :-