( Best ) Should adultery be criminalised?

Should adultery be criminalised?

Adultery is a common word in today’s era. Almost every individual is aware of a general description of the term. Adultery in common parlance means extramarital sex. Section 497 of the Indian Penal Code defines adultery as, “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” Adultery is a criminal offence in India, whereas most of the countries have decriminalized it.

Recently, Joseph Shine, through advocate Suvidutt Sundaram, challenged the constitutionality of Section 497 of IPC read with Section 198(2) of CrPC by filing a PIL in front of a three- judge bench. The question raised by him in the PIL was regarding the exception of women from the punishment for a wrongful act done by both the man and the women with regard to adultery.

Should adultery be criminalised?

Should adultery be criminalised?

Many people feel that the entire adultery law in India should be decriminalized. Some of the reasons to support their arguments are as follows:

  • First, sexual intercourse between a man and woman who are mature in age is a private matter of the individuals. Also, in an adulterous relation, it is an equal decision of both the man and the woman; hence both are at fault. Therefore, punishing only the adulterer and excluding the adulteress with the statement that man is the seducer seems to be quite vague and not convincing in the modern era.
  • Second, the definition of Section 497 of IPC itself is unconstitutional because women are treated to be men’s property rather than an equal individual to men. The part of the definition where it states, “without the consent of man” proves the point that having sexual intercourse outside marriage with the consent of the husband by the wife is allowed.
  • Third, it is an offence only when a married woman has sexual intercourse with another man other than her husband, but it has not been mentioned to be an offence in cases where a married man has intercourse with a woman outside the marital relationship, which again shows gender bias.

Why adultery was decriminalised in India :-

  • There are several loopholes in Section 497 of IPC (Indian Penal Code). The main loophole is that it punishes only men that commit adultery, and women are treated as victims and innocent. This is discriminatory on the basis of gender.
  • And another important loophole is it considers woman as a property of her husband. This law states that a man can file a case on the person that have an illicit affair with his wife, without his permission.
  • This law punishes only those who have illegal relationship with married women. If a married man has an affair with unmarried women, he cannot be punished under this law.
  • This law interferes with personal lives.
  • Considering all these reasons, Supreme court struck down the 158 year old law by stating that adultery is a civil wrong and should not be a criminal offence. However one can opt for divorce if his/her life partner commits adultery.

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