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Decriminalisation of Adultery – A Setback to the Institution of Marriage in India:

In a judgment that has the potential to impact millions of families, the Supreme Court of India declared the 150-year-old adultery law as unconstitutional. This judgment, passed by a bench of five judges, struck down the section 497 of Indian Penal Code, 1860 along with section 198(2) of Cr.P.C. as unconstitutional, thereby decriminalizing the offence of adultery. As per the law declared by the Court, if a spouse commits henceforth, the appropriate remedy would be to file for divorce and not criminal prosecution.

While the judgment is bound to have a far-reaching impact upon marriages in India, the adverse fallout cannot be ignored. In a country beset with rising divorce rates and cases of marital infidelity, the decriminalization of adultery will critically endanger the institution of marriage. Not only does it run the risk of fostering extra-marital affairs, the emergence of divorce as the way out will catalyse the break-up of marriages, leaving the children of separated parents in the lurch.

Our Intervention Application:

As an intervener in the petition before the Supreme Court filed by Joseph Shine, I strongly opposed the decriminalization of adultery sought by the him. We submitted that Section 497 played an indispensable role in protecting the sanctity of marriage by deterring outsiders from stealing the affections of a spouse. Therefore, any attempt to weaken it would jeopardise the institution of marriage and foster infidelity and breakdowns.

In our intervention, we also pointed out the need to shift focus from Section 497 and bring the spotlight upon Section 198(2) of the Code of Criminal Procedure, 1973. Under Section 198(2), it is only the husband who has the right to file a criminal complaint of adultery under Section 497, which he can do against the man who steals the affections of his wife. It creates an anomalous situation where, on one hand the wife can do nothing against her adulterous husband while on the other hand, a husband can prosecute any man having an adulterous relationship with his wife.


Why Only Husbands Complain – Why not the Wives?

We thus submitted that it was Section 198(2) of the Cr.P.C. which required judicial review because it prohibited wives of adulterous husbands from filing adultery complaints against them.

Grounds of Challenge:

In our intervention application before the Court, we also relied upon different grounds to suggest why this section should be made gender-neutral. Section 198(2) of the Cr.P.C violated Article 14 of the Constitution of India because it fails the test of reasonable classification as they carve out arbitrary classifications in favour of the husband. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife. Further, it also created an arbitrary classification between married and unmarried women, thereby violating the fundamental right to equality under Article 14 of the Constitution of India.

In addition to the primary ground of inequality, we submitted that Section 198(2) also violated Article 15 of the Constitution, which prohibits gender-based discrimination. It was also inimical to the right to life under Article 21 of the Constitution. Section 198(2) was thus a retrograde provision that demonstrated the failure of the State to provide equal justice under the Directive Principles of State Policy.

It is needless to add that children in modern society often blame their parents for not giving them enough time during childhood. When these very children witness their parents getting into romantic relationships with new partners, their thought process is adversely effect. They may lose their sense of right and wrong and may even risk shedding the values that have made our society what it is. It is quite clear that the mindset of children was not considered while passing the judgment and that’s why there will be serious consequences of the same.

While the Supreme Court ruling may have etched the law in stone, the prerogative of sanctioning adultery remains with Parliament. The institution of marriage constitutes the building blocks of Indian society and it is imperative for the Government to fortify it against external evils like adultery. Broken families scar the minds of the younger generation and have an adverse influence upon their conduct as grown-up citizens. The least the Supreme Court could have done to counter this was to provide a legal remedy for children whose lives are damaged as a consequence of adultery.

Prosecution under Section 306 – A Non-Starter:

While striking down Section 497, the five-member bench observed that if a spouse commits suicide as a result of adultery committed by his or her better half, the latter can be prosecuted for abetment of suicide under Section 306 of the IPC. While this may appear effective on paper, experience shows otherwise. According to the National Crime Records Bureau, the conviction rate for offences pertaining to abetment of suicide being next to nothing, it is unlikely that such prosecutions will deter spouses from committing adultery.

Parliament should take steps immediately

From now on, the only remedy available to a man or woman who finds his partner to be in an adulterous relationship would be to go for divorce. The Hon’ble Supreme Court should have appreciated the consequences such a view would have on the institution of marriage. Earlier the threat of criminal prosecution served as a strong deterrent against adultery. With the elimination of this threat, the door is left wide open for external factors to impact harmony in the matrimonial household. This may damage the family concept would be destroyed and now people will just get into open relationships which will lead to disruption and more crime in the society.

It is thus imperative for Parliament to take some steps immediately to rectify the damage done by the Supreme Court in Adultery verdict. The first step would be to classify the offence of adultery as ‘cruelty’ within the meaning of Section 498A of the IPC. This can be further complemented by incorporating amendments in the Domestic Violence Act of 2005 by imposing penalties on adulterous spouses. Adultery is a potent threat to the institution of marriage and the Parliament must step in to fill the void left by the Supreme Court.

Abha Singh

Abha Singh is a former civil servant and presently an advocate practicing in the Bombay High Court. She is a renowned social activist who has done considerable work in the realm of woman’s rights, gender equality and justice. She has done an M.Phil on Child Rights from the prestigious Jawaharlal Nehru University, New Delhi. Abha Singh was the third runner-up and the lead woman finalist in the Times of India Lead India Campaign in 2008. She was further awarded the Chevening Scholarship to attend the London School of Economics and Political Science. Her talk ‘Honour Killings in India and the Legal Complications of Section 498A” at the School of Oriental and African Studies (SOAS), University of London received widespread acclaim. Abha Singh was also invited as a speaker at TEDx Oxbridge, conducted jointly by the Universities of Oxford and Cambridge in May, 2017. Sensing the call of duty beyond service, she gave up a successful career in the Government to serve a larger cause by donning the robes of the legal profession. Abha Singh obtained a law degree from Bombay University while working as a Government. Abha Singh took up the case of the two Palghar girls in right earnest when she learnt about their unlawful arrest by the Police for innocent comments on Facebook. Due to her perseverance the guilty cops were suspended and the girls were exonerated honorably. Abha Singh has been successfully pursuing the Salman Khan Hit-and-Run case to ensure that the rule of law is upheld and the youth are educated against the hazards of drunken driving.

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