Adultery Should Be Matrimonial Offence, Not Criminal: Lawyers

The Centre on Tuesday told the Supreme Court that adultery should remain a punishable offence and that we must not weaken it. It also disagreed with a petition filed by Joseph Shine, aiming to make men and women equally liable under the offence of adultery under Section 497 of the Indian Penal Code, reported Asian Age.

According to the Centre, Section 497 came into existence to safeguard the sanctity of marriage and diluting it would harm the matrimonial bond. The IPC section essentially focuses on punishing the man who has a sexual relationship with a married woman. If convicted, he will get five years in jail and fine.

We spoke to lawyers about their view on the law and whether it is necessary, for the sanctity of marriage or not. Lawyer and gender rights activist, Shomona Khanna, said, “Adultery comes under matrimonial offence between two people involved in the unison of marriage. There is no need to look at adultery as a crime against society and there is absolutely no need for inclusion of adultery in Indian Penal Code. It is there in our Hindu Marriage Act or the Muslim Personal Law etc that any kind of adultery -- whether it is by the husband or the wife -- is equally a matrimonial offence and ground for divorce.”

Talking about how the adultery provision is defined in the IPC, she says it is very patriarchal that the law only objects to adultery committed by a wife with a man outside of her marriage. “The law sort of considers women within a marriage as a form of property and the person who has violated the marriage exclusivity has committed a crime, a crime against another man’s property. This is a very archaic notion of marriage as old as the time this law was enacted, which is 1860s.”

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Speaking from a similar perspective, advocate Mayank Mikhail Mukherjee said, "The Centre has acted in a very Parens Patriae manner wherein you feel that the entire population is like your children and you have to take care of them like your children, which is what it should not be doing. One must realize that these laws date back to 1860s when morality and relationship had a very different understanding than what it is today. So the court should look into whether it applies to today’s scenario or not.”

He said that for the Centre to say that society requires an adultery law for the stability of a marriage is taking it one step too far because it has no authority to state that a family can only survive if this law is in place. “When two consenting adults are entering into a relationship, which the society may not approve, then that is not something that a criminal law should take into consideration,” he added.

"It is there in our Hindu Marriage Act or the Muslim Personal Law etc that any kind of adultery, whether it is by the husband or the wife, is equally a matrimonial offence and ground for divorce."

A different perspective

On the contrary, lawyer Abha Singh, who practises at the Bombay High Court, does believe that repealing this law will affect the sanctity of marriage and children will suffer the most. “This law is there to maintain the institution of marriage as we are now at a position where the Women and Child Development ministry is talking about per-nuptials so one can take care of all these issues that occur after marriage.”

She added that the government must make it gender-neutral. “The makers of law in the 1860s only thought of it from a patriarchal viewpoint that if a man has intercourse with someone else’s wife then you can fix the man. But if a woman wants to protect her marriage, then she cannot prosecute the other woman in her life. So the government should also give the power to the woman.”

The law is fairly old and the lawmakers today must look deep into how the society has evolved. It needs to see what changes the law needs or whether it is time to repeal it altogether.

Picture credit- Zee News