Introduction
Adultery and its legal perspectives have been always in target question of the Indian courts. This 150-year-old law in India was bestowed upon us by the British India Company, under section 497 of Indian Penal Code, 1860. However, after the independence of India, the validity of the same section has been constantly questioned in the courts of Indian Judiciary. Previously, the Indian Judiciary has viewed section 497, and held that it was not in conflict with Article 21 of the Indian Constitution. But in recent judgement by the Supreme Court, it was discussed to be the antiwomen and also against the basic fundamentals of equality in which a husband is the master of his wife.
Application
Section 497 IPC, reads: “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.”
This particular definition nowhere takes cognizance of a married man; having sexual intercourse with an unmarried woman, widow or a divorced lady. Also, the section says, that having sexual intercourse with a married woman; whose husband has given consent to it is not adultery. This pre requisitely also implies that consent of the married woman is not involve. Or is necessary to be take and this treats women as mere property of the husband. Also, the married woman involve in the conduct; willfully, is treat as a victim and not as the creator or author of the same.
Adultery is being condemned in many religions like Hindu, Christian, Muslims as well as Judaism. And henceforth, many legal systems of other countries have likewise accordingly made laws concerning adultery based on religious views, societal needs and several possible reasons.
Challenges Faced
In India, adultery was challenged before as well. Despite that, it was made as a part of IPC, and was consider. That it did not violate Article 14 & 15 of the constitution. It was non -discriminatory between men and women. Also the non-inclusion of women in the prosecution of adultery promoted social good. For keeping the sanctity of the marriage. The SC observed that adultery law was shield rather than a sword for marriages. The ambiguity of adultery law remained unresolved.
In the case of Joseph Shine vs. Union of India [W.P. (CRIMINAL) NO. 194 OF 2017], the court countermands the previous judgements and Supreme Court struck down the law relating to adultery and decriminalized it. Marriage is a social institution which should be saved. But if one party fails to abide by this socio-cultural setup. There has to be a remedy for the aggrieved party, which is that it is a ground of divorce and is subjugated to civil remedy. Adultery is no longer a crime.
Conclusion
The law regarding adultery along with section 497 of I.P.C. and 198(2) of Cr.P.C., were held unconstitutional. They violated gender equality and treated wife as a possession of the husband. CJ Dipak Misra noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women.
This law promoted gender gap, was anti-women and also facilitated patriarchy in society, hence is rightly struck down for the same reasons.
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