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Decriminalisation of Adultery:A Step Towards Rights Based Social Relations


Affiliations
1 Govt. J. Yoganandam Chhattisgarh College, Raipur, (C.G.), India
     

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Whether adultery should be considered as an offence against public morality or left to the operation of the civil laws has been the subject of much discussion.Adultery as a crime can be constituted by even a single act of sexual intercourse of a married woman with a married man other than her husband, if it is by consent and does not come within the category of rape. The explanation seems simple but there are several issues debatable connected with it and the problem is much bigger than a sexual act. First of all the said law of adultery was enacted way back in 1860 during the British rule of India. What is most significant is that even at that time the law criminalizing adultery did not exist at all. The main person involved in drafting the said law himself was not in a favour of criminalizing the act. However the law was still enacted and enforced taking into regard the unequal and pitiable position of woman in India at that time when they were considered as a property of man. The said provision has been challenged before the courts and criticized widely on several occasions but the Courts in India have let the provision stand in total disregard of the fact that the position of woman has drastically changed with time in the country and now woman are not only considered socially equal to men but even in some instances above them. Secondly the language of the Section 497 of IPC, 1860 or Section 198 (2) of Cr, P. C., 1973 and its applicability itself spells gender inequality and prejudice and seems to be against the fundamental rights guaranteed under the Constitution of India. Theprovision calls for prosecution of only the adulterer man and not the adulteress wife. All these factors definitely render the relevant provisions under Indian Penal Code and Criminal Procedure Code as unconstitutional discriminatory to men and women both and themselves promote gender inequality. It is significant and noteworthy that while in Britain itself the law on adultery has been abolished even as a tort way back in 1857, the law was also abolished in Japan in 1947, in South Korea in 2015 and by most of the countries except countries like Philippines, United States and Islamic States like Pakistan, Saudi Arabia and Iraq etc. Most of the European countries like Malta, Italy, France, Spain, Portugal, Greece, Switzerland, Turkey, Romania etc., and the earlier laws of adultery as a crime have been abolished long back. Even some states of US like West Virginia, Colorado and New Hampshire have abolished the law. Even the United Nations Entity for Gender Equality and the Empowerment of Women and the United Nations Working Group on Discrimination Against Women in Law and Practice have called for abolition of criminalization of adultery saying it leads to discrimination and violence against women. In some Islamic countries punishments like stoning and flogging have been assigned for adultery and many cases of honour killing have been noticed. The issue of adultery and the act is more or less a moral crime and an issue to be decided between the families themselves rather than making it public and thereby making the whole issue more complex to resolve between a husband and wife within their four walls.

Keywords

Decriminalisation, Adultery, Social Relations.
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  • The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Ed.), p. 21.
  • See,https://en.wikipedia.org/wiki/Adultery, visited on 10.12.2018.
  • See, "Adultery Divorce", available at, www.advocatekhoj.com, visited on 10.12.2018.
  • Marita Carnelley, "Laws on adultery: comparing the historical development of South African common-law principles with those in English law", available at,www.scielo.org.za, visited on 10.12.2018.
  • Palak, "Adultery", available at,www.legalservicesindia.com,visited on 10.12.2018.
  • Ann Summer Holmes, "The Double Standard in the English Divorce Laws 1857-1923", Vol. 20, No. 2 Law and Social Inquiry Journal 601-602(1995).
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  • Id., at p. 325.
  • Supra note 7 atp. 326-327.
  • Id., at p. 327.
  • AIR 1985 SC 1618.
  • Law Commission of India, Report No. 156 (August, 1997) at p. 169-172.
  • AIR 1951 Bom. 470.
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  • AIR 1985 SC 1618.
  • Id., atparas 5- 7 & 8, 13.
  • AIR 1988 SC 835.
  • Supra note 15.
  • Supra note 17 at para 2-5.
  • (2012) 1 SCC 358. See also, Krushna Chandra Patra v. TanuPatra, II (1992) DML 20; Rajesh Paul Chaudhary v. State of Assam, II (2007) DML 735&Sandevip Roy v. Sudarshan Chakraborty, 2007 (98) DRJ 109.
  • Writ Petition (Criminal) No. 194 of 2017.
  • See, www.livelaw.in/statutory-immunity-womenprosecution-adultery-SC-admits-writ-petition-challenging-vires-section-497IPC, visited on 12.12.2018.
  • See, Order of the Supreme Courtmade on 8th December 2017, available at,https://indiakanoon.org/doe/84109431, visited on 12.12.2018.
  • See, Order of the Supreme Court made on 5th January 2018, available at,https://indiakanoon.org/doe/55014671, visited on 12.12.2018.
  • (2017) 10 SCC 1.
  • Case No: 2009 Hun-Ba 17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at, https://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do, visited on 12.12.2018.
  • Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available at, https://ulii.org/ug/judgment/constitutional-court/2007/1, visited on 14.12.2018.
  • DE v RH (2015) ZACC 1877.

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  • Decriminalisation of Adultery:A Step Towards Rights Based Social Relations

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Authors

Surendra Kumar
Govt. J. Yoganandam Chhattisgarh College, Raipur, (C.G.), India

Abstract


Whether adultery should be considered as an offence against public morality or left to the operation of the civil laws has been the subject of much discussion.Adultery as a crime can be constituted by even a single act of sexual intercourse of a married woman with a married man other than her husband, if it is by consent and does not come within the category of rape. The explanation seems simple but there are several issues debatable connected with it and the problem is much bigger than a sexual act. First of all the said law of adultery was enacted way back in 1860 during the British rule of India. What is most significant is that even at that time the law criminalizing adultery did not exist at all. The main person involved in drafting the said law himself was not in a favour of criminalizing the act. However the law was still enacted and enforced taking into regard the unequal and pitiable position of woman in India at that time when they were considered as a property of man. The said provision has been challenged before the courts and criticized widely on several occasions but the Courts in India have let the provision stand in total disregard of the fact that the position of woman has drastically changed with time in the country and now woman are not only considered socially equal to men but even in some instances above them. Secondly the language of the Section 497 of IPC, 1860 or Section 198 (2) of Cr, P. C., 1973 and its applicability itself spells gender inequality and prejudice and seems to be against the fundamental rights guaranteed under the Constitution of India. Theprovision calls for prosecution of only the adulterer man and not the adulteress wife. All these factors definitely render the relevant provisions under Indian Penal Code and Criminal Procedure Code as unconstitutional discriminatory to men and women both and themselves promote gender inequality. It is significant and noteworthy that while in Britain itself the law on adultery has been abolished even as a tort way back in 1857, the law was also abolished in Japan in 1947, in South Korea in 2015 and by most of the countries except countries like Philippines, United States and Islamic States like Pakistan, Saudi Arabia and Iraq etc. Most of the European countries like Malta, Italy, France, Spain, Portugal, Greece, Switzerland, Turkey, Romania etc., and the earlier laws of adultery as a crime have been abolished long back. Even some states of US like West Virginia, Colorado and New Hampshire have abolished the law. Even the United Nations Entity for Gender Equality and the Empowerment of Women and the United Nations Working Group on Discrimination Against Women in Law and Practice have called for abolition of criminalization of adultery saying it leads to discrimination and violence against women. In some Islamic countries punishments like stoning and flogging have been assigned for adultery and many cases of honour killing have been noticed. The issue of adultery and the act is more or less a moral crime and an issue to be decided between the families themselves rather than making it public and thereby making the whole issue more complex to resolve between a husband and wife within their four walls.

Keywords


Decriminalisation, Adultery, Social Relations.

References