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Legal Position Of Adultery Under Personal Laws And Rationale For Its Decriminalisation

“Adultery may not be the cause of an unhappy marriage but the result of it.”
Adultery is defined as consensual and voluntary extra marital intercourse by a married person with a person of the opposite gender, whether married or unmarried, during the existence of a valid marriage. Adultery is a ground of divorce under various personal laws but under the Dissolution of Muslim Marriages Act, 1939 adultery as such is not a ground of divorce rather husband’s association with women of evil repute or his leading an infamous life is a ground of divorce.
The Civil law for adultery is much more gender neutral by leaving it as a ground of divorce for both genders rather than the criminal law on adultery as was laid down under now repealed Section 497 of the Indian Penal Code, 1860. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it should depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party.
In Joseph Shine v. Union of India, the Supreme Court decriminalized adultery holding that it does not fit into the definition of crime.  Stephen defines a crime as an unlawful act or default which is an offence against the public, rendering the person guilty of such act or default liable to legal punishment. If adultery is treated as crime it would be treated as immense interference by the State into extreme privacy of a matrimonial relationship. Moreover it would be ultravires the Article 21 of the Constitution of India as it is in violation of the dignity of husband and wife and privacy of their relationship.
Till now the law was expecting the parties to remain loyal and maintain fidelity throughout and was also making the adulterer the culprit. However this expectation of law was a discriminatory command and a socio-moral one. A married man having sexual intercourse with: 1) An Unmarried woman, 2) with a widow 3) A married woman whose husband consents to it and 4) with a divorced woman, committed no offence under this section. Moreover it granted relief to the wife by treating her as a victim. It is important to understand that when the offence is committed by both of them making one liable for the criminal offence absolving the other was discriminatory. Ordinarily, the criminal law proceeds on gender neutrality but in this provision it was absent.
The crime “adultery” treated women as property of men by not considering it as a crime once the consent or connivance of husband is established. Thus creating a dent on the independent individual identity of a woman by laying emphasis on the consent of husband. This treatment of the woman as a chattel and as the property of man was a reflection of the social dominance that was prevalent when this penal provision was drafted. Section 497 of the Indian Penal Code, 1860 effectively created distinctions base on gender stereotypes. International trends worldwide also indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws.
Section 13(1) of the Hindu Marriage Act, 1955 describes adultery as a ground for divorce and Section 10(1) of the Hindu Marriage Act, 1955 talks about adultery as a ground for judicial separation. Both husband and wife can use it as a ground for divorce as these sections state that any person whose spouse engages in an adulterous relationship gets a right to file a petition of getting the decree of divorce or judicial separation. Under this section for getting a decree, the petitioner has to prove that there was sexual intercourse by the respondent with some person other than his or her spouse.
According to popular notions, the Hindu Shastric laws had no provisions for divorce on basis of adultery and they censure it in undisputable terms. Marriage regarded as a sacrosanct institution was required to be preserved at all costs. According to the fault theory a marriage can be dissolved when one of the parties commits a matrimonial offence. Adultery is a matrimonial offence and comes under the fault theory, where one spouse is at fault and gets the right to seek divorce decree.
Regarding evidence, in Pattayee Ammal v. Manickam Gounder and Anr, it was held by the Madras High Court that adultery is a secret act and a direct evidence of such an act is difficult to find, moreover such acts are performed with utmost secrecy. Since direct evidence is in most cases impossible to adduce therefore Courts can rely on circumstantial evidence.
Prior to 1976 amendment, there were two sets of adultery entitling the petitioner to two different reliefs; a lesser relief of judicial separation and a more serious one by way of decree of divorce. For a separation, the petitioner had to prove just a single act of adultery of the respondent whereas living in adultery was a ground for divorce which refers to continuance of the adulterous act over a period of time. Accordingly, by the Marriage Laws (Amendment) Act 1976, the provision of Section 13 of the Hindu Marriage Act was amended and now a single act of voluntary sexual intercourse by a party except spouse is sufficient to prove adultery.
Adultery, according to the Quran, is a severely punishable. The husband has every right to divorce his wife if he is capable of proving that his wife had an adulterous relationship. But the wife may only in circumstances of false accusations be able to either ask her husband to retract the accusations or divorce him under lian. However, if the husband retracts the claims and apologizes for the same in a prescribed manner, the wife’s claims subsist.
The Dissolution of Muslim Marriages Act, 1939 provides little relief as it states in Section 2(viii)(b) that where a man leads an infamous life or associates himself with women of evil repute, she can sue him on grounds of cruelty. In the case of Zaffar Hussain v. Ummat-ur-Rahman, the wife of the plaintiff alleged that her husband had stated before several persons that she had illicit intercourse with her brother. The court held that if a Muslim woman is falsely accused of adultery and she can claim divorce on that ground. The Dissolution of Muslim Marriage Bill, 2016 which has been introduced in Rajya Sabha in Section 3(7) provides the ground of adultery directly being available to women to file for a divorce.
When it comes to adultery, Special Marriage Act, 1954 also recognizes adultery and states that if the respondent after solemnization of marriage had voluntary sexual intercourse with another woman except his wife, it is a valid ground for divorce. It does not discriminate between husband and wife and give both of them the divorce rights.
The law for Christians regarding judicial separation and divorce is given under the Indian Divorce Act, 1869 and the Indian Christian Marriages Act, 1872. Section 22 of the Indian Divorce Act bars divorce mensa et toro, but makes provisions for a decree of judicial separation on grounds of adultery. Despite the fact that the wife has proved adultery she also has to prove presence of other grounds with adultery such as cruelty, insanity, change in religion, etc. In the case of Pragati Varghese v. Cyril George Varghese, the Bombay High Court held that proving other grounds also puts unnecessary pressure on the wife and is blatantly unfair, and it allowed adultery as an independent ground. Under Section 32(d) of Parsi Marriage and Divorce Act, 1936 divorce can be granted on the ground of adultery provided that the plaintiff has to file the suit within two years of knowing the fact.
The societal norms cannot dictate or interfere with the personal liberty of an individual guaranteed by the Constitution. However, even in most modern and liberal societies adultery is viewed as extremely harmful to the roots of a matrimonial relationship. With regard to matrimonial matters in relation to adultery, the Courts have been interpreting personal laws in a gender neutral manner keeping in mind best in interests of the parties. Various positive steps have been taken by way of amendments in law to make it convenient for the spouse to get out of such a marital tie without commitment. Thus adultery is at the right place in the current scenario by being a ground of divorce under various personal laws where the other spouse can get out of such marriage however as it is does not fit into the ambit of a crime, the Supreme Court in  Joseph Shine v. Union of India was right in decriminalizing adultery.




Manvi Khanna is a fourth year law student pursuing BBA.LLB(Hons.) at National Law University Odisha, Cuttack. She is highly interested in researching in diverse areas of human rights law especially with regard to gender justice. She is an avid reader and like to keep myself updated with all the corporate law related news around the globe.

In Content Picture Credit: The Statesman

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