December 6, 2020

ARTICLE ON LEGAL ASPECTS OF ADULTERY

ABSTRACT

All of the pillars of democracy which is the Legislature, executory, and Judiciary is based on the constitution. Constitution is also required to implement the public policy which is beneficial for the general public. A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed. In the judgements of Supreme Court they has to take care the articles of constitution and the other provisions which are given in that for the benefits of the general public. Here we talk about the case Joseph shine v. Union of India [1]which were talk about the unconstitutionality of sec 497[2] which were talked about the adultery – 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[3].

Supreme court striking down the provision of adultery as an unconstitutional on the basis that this provision were violates the provision of the article 14, 15, 21 of constitution[4] which mainly talks about the Equality, Discrimination, and Right to Life respectively.

By this article I would like to gain an attention of the peoples and also aware the general public regarding constitutional law and public policies.

ABOLISHMENT OF OTHER LAWS AND ARTICLES

As it is the main the point to declare an Adultery as an unconstitutional that its violates the article 14[5] and 15[6], 21[7]. Mr. Kaleeswaram Raj learned Counsel appearing for the Petitioners and Ms. Meenakshi Arora, learned Senior Counsel appearing for the Intervenors inter alia submitted that Section 497 criminalizes adultery based on a classification made on sex alone. It was further submitted that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of marital status. It precludes a woman from initiating criminal proceedings. Further, the consent of the woman is irrelevant to the offence. It was contended that Section 497 of the I.P.C. is violative of the fundamental right to privacy under Article 21, since the choice of a partner with whom she could be intimate, falls squarely within the area of autonomy over a person’s sexuality. It was submitted that each individual has an unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse outside his or her marital relationship.[8]

This is true that there is choice to person with whom she intimate, but this should violate the dignity of husband if his wife could does the same, there should be choice to could intimate but for only the person who is not married , not for those who are married. However adultery should be again criminalised for those who are married and then also intimate with the other than husband. Marriage is also a contract and when one partner breach trust then the other partner may want to punish using law but if there is no law to do so then it is quite possible that he or she may take law in his/her own hand which is not good for our society

Both parties in adultery derive the benefit of the act. Despite that one is treated as a victim and other is punished. There is no rationality in it. Indian has always a patriarchal society, where the position of man always been higher than the woman and the section 497 act as a fooder of this type of patriarchal mentality. The section in the name of protecting woman which our society thinks to be a woman who is docile, incapable of thinking and making her own decision takes away her right of making her husband and the other woman liable for the act and also by not holding her accountable for her act offends her capability of being a rational human being. However, to make this section 497 doesn`t violates the sec. of constitution make it similar to all that is woman is also punished as an abettor under adultery with minimum imprisonment or fine or both.

By above we conclude that if any of the spouse breaches the matrimonial ties then it should be more liable than third person for the act. There should two essentials elements to declare a person liable under criminal act that is Mens Rea[9] and Actus Rea[10]and here both the elements is present.

ADULTERY IS A GROUMD OF DIVORCE

In our India there is Divorce act 1869 which talks about all the provision related to divorce in context of husband as well as wife, there are some common ground for divorce that is,

· Adultery

· Desertion

· Chronic diseases

· Cruelty

· Impotency

So the adultery is one of the ground of divorce for the men and women, under section 10[11] of Divorce Act[12] it may be defined;

When husband may petition for dissolution

Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since, the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,

or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a Mensa et Toro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Contents of petition- Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Comment: If grounds need to be added to those already specifically set forth in the legislation that is the business of the Legislature and not of the Courts. It is another matter that in construing the Language in which the grounds are incorporated the Courts should give a liberal construction to it. Indeed, we think that the Courts must give the fullest amplitude of meaning to such a provision. But it be meaning which the language of the section is capable of holding. It cannot be extended by adding now grounds not enumerated in the section. Reynold Rajamani and another, Appellants v. Union of India[13]

Section 11 of Divorce act 1869

Adulterer to be co-respondent

Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:

(1) That the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;

(2) That the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;

(3) That the alleged adulterer is dead.

Hindu Laws on Adultery as a Ground for Divorce

Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove that she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her.

Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage being solemnized after or before the commencement of this act.

In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi[14], both Section 10[15] and Section 13[16] of the Hindu Marriage Act[17]. According to the husband, she used to visit the house of the co-respondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in the favour of the petitioner on merit of the evidence provided, and judicial separation was granted. The above cases are mainly testament to the fact that cases such as these are indeed taken on a case to case basis, and decided on the merits of that particular case.

Muslim Laws on Adultery as A Ground For Divorce

Adultery, according to the Quran, is a severely punishable offence and is prescribed to be dealt with by way of stoning to death. But this is not the case in most democracies where the constitutions call for humane treatment of its citizens. The husband has every right to divorce his wife if he is capable of proving that his wife had an adulterous relationship. But the wife may only in circumstances of false accusations can either ask her husband to retract the accusations or divorce him under lian. However, if the husband retracts the claims and apologizes for the same in a prescribed manner, the wife’s claims subsists. In the case of Tufail Ahmad v. Jamila Khatun[18], the Allahabad Court has further explained that only such wives who are not guilty of adultery may use this as a ground for divorce.

LEGITIMACY OF ADUTEROUS CHILD

497. Adultery.—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[19].

Now in present scenario the Supreme Court striking down the 158 year old rule of colonial era that wife is no longer a property of husband, so it’s no longer a criminal offence. But there are many question arises after the striking down the rule of adultery, one of that major question is legitimacy of adulterous child, who is responsible for that child.

According evidence act the legitimacy of children is:

Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.[20]

But there is some exception read as if the parties to the marriage had no access to each other at any time when he could have been begotten, it means that there is need to prove that both of the parties had no access with each from the reasonable time which arouses a question towards the conclusive proof of evidence. So in the case of adultery we need to prove the same. According to that the adulterous man even not the one of the parent of that child, because according to the sec 112 both the parties are not a married couple and their status are not as husband and wife. So this is a question towards a society and court that who were the predecors of that child.

In India there is a provision of single parent child in which one of the parties can take a custody of child and take care of it as single parent. There also a term called uterine blooded children in which a person have a same mother but have different father they both are related to uterine blooded. So this was a one of the matter of subject of adulterous child, in the case when the parties are not getting separated. According to the conclusive proof the husband is not a father of that child nor that child have any right towards the property of the husband. Now it is a question of act that there is any right of child towards the husband of his mother, if not then who is getting the status of father of that children, who are going to take the responsibility of that children.

In Shiva Kumar v Premavathi[21] it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions.

The Supreme Court gave a judicial message in the case of Gaurav Jain v Union of India[22] that children are innocent and abandoning of the child by one of the parents, excluding a good foundation of life for them, is a crime against humanity.

SUGGESTION

So now it is the high time to resolve this solution by the judiciary to maintain stability in the society as it is required now after the striking down the sec 497 of IPC as constitutional.

· Many of the people suggest that the man and woman who commits an adultery can take responsibility of that children which is commonly consider as adulterous child, because they are only responsible for that birth neither the husband of that woman.

· So the other suggestion is that if nobody will take care of that child then only the husband of that woman is only last option with that woman after all the he is the husband of that child.

· And the other option is that the mother only take a responsibility as a single parent.

[1] Rp (criminal) 194/2017
[2]IPC 1860
[3]IPC 1860 sec 497
[4]1950
[5] Right to equality
[6] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[7] Right to life with personal liberty
[8] The relation between husband wife
[9] The intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
[10] The external element or the objective element of a crime
[11] Ground for dissolution of marriage
[12]1869
[13] AIR 1982 SUPREME COURT 1261
[14] A.I.R. 1965 S.C. 364
[15] judicial separation
[16] Provisions of Divorce
[17] 1995
[18] April 1962
[19]IPC 1860 sec 497
[20]Sec 112 of evidence act 1872
[21]Appl 2384(2003)
[22] [(1997) 8 SCC 114; AIR 1997 SC 3021]

Author Details: Bheeshm Sharma (Manipal University Jaipur)

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