“Make Adultery a Crime Again,” the Parliament and the Supreme Court to enter into a legal quagmire?

Amidst a recent development, a parliamentary committee on Home Affairs has suggested that the act of ‘adultery’ should be reconsidered as a criminal offence and be re-instituted in the Bharatiya Nyaya Sanhita (BNS), 2023. The BNS is set to replace the 163-year-old Indian Penal Code (IPC), aiming to do away with certain ‘draconian laws‘ bestowed during the British Raj. 

The committee, headed by BJP MP Brij Lal, shall examine the laws and content of the IPC 1860, Code for Criminal Procedure (CrPC) 1973, and Indian Evidence Act 1872 before suggesting reforms that are at par with the necessities of our time. 

So far, the committee has made 50 recommendations and has illustrated several ‘errors’ in the existing laws. The most striking suggestion made by them is the demand to re-institute ‘adultery’ as a criminal offence in the BNS 2023, a blatant defiance of the Supreme Court Verdict of 2018!

The debate around the ‘criminalisation of adultery’ is shrouded with complexities. While the Honourable Supreme Court decriminalised the act of ‘adultery’ in its historic Joseph Shine vs Union Of India Case, 2018, many Indians consider the judgement to be detrimental to the culture and moral values associated with the institution of ‘marriage’ in Indian society. 

What is adultery, and how has India defined it?

In simple terms, the act of adultery is when “a married man or a married woman voluntarily engages in sexual intercourse with someone other than their current spouse or partner.” However, the British used all types of ‘mumbo-jumbo’ while enlisting this act as a criminal offence in section 497 of the IPC.

According to the IPC, “Whoever has sexual intercourse with a person who is 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… In such case, the wife shall not be punishable as an abettor.”

In simple words, the IPC suggests: If you were a woman and your husband decided to cheat on you with another lady, you were not entitled to get your husband charged with the offence of adultery. 

The IPC also suggested: If you were a man and your wife decided to cheat on you with another man, in the eyes of the law, the ‘other man’ (wife’s lover) is a criminal, and your wife stays innocent! However, if you allow the ‘other man’ to have consensual sex with your wife, that man is not liable to get charged under the offence of adultery.

Thus, as per section 497, a man can use the law to punish his wife’s lover and NOT the wife. A woman has no say in this entire circus, irrespective of whether she is the victim or perpetrator of the said ‘crime.’ Does this law make any sense? The Supreme Court of India, while hearing the Joseph Shine vs Union Of India Case 2018, struck down section 497 of the IPC on many feasible grounds, out of which two stood out.

The Supreme Court opined that the existing law was discriminating between a man and a woman, which was a violation of the fundamental rights enshrined in Articles 14, 15, and 16 of the Indian constitution. As per the second ground, the Supreme Court unanimously noted how this law treated a woman as her husband’s ‘property,’ violating the Right to life and liberty (personal dignity) enshrined in Article 21 of the Indian constitution. 

While delivering the judgement, the former Chief Justice of India, Justice Deepak Mishra, noted, “The husband is neither master of his wife, nor does he have legal sovereignty over her — and that any system treating a woman with indignity invites the wrath of the constitution.”

The five-judge bench constituting the incumbent CJI DY Chandrachud asserted how adultery is a “civil wrong” and criminalising it would offend the dignity of a husband and his wife. They observed that adultery did not “fit into the concept of crime” and was “better to be left only as a ground for divorce.”

What does the Parliamentary Committee opine?

In its 350-page report on BNS 2023, the parliamentary committee wishes to re-institute ‘adultery’ as a criminal offence, with provisions that shall instil ‘gender-neutrality’ in the law. The committee opines BOTH men and women must get punished for committing the act of adultery. 

To rest its case, the committee refers to the sanctity of the institution of marriage in Indian culture. ‘Loyalty’ is considered a rudimentary aspect of marriage in India. Thus, criminalisation of ‘adultery’ is deemed necessary to keep the sanctity of marriage sacrosanct!

“This section (497 of IPC) only penalised the married man and reduced the married woman to being the property of her husband. Since the institution of marriage is considered sacred in Indian society, and there is a need to safeguard its sanctity,” maintained the committee. 

Since a verdict of the Supreme Court gets valued as “the law of the land,” the parliament cannot simply pass a retrospective or prospective law without satiating the basis of the apex court’s criticism. While one segment of the Indian society, including former Home Minister P Chidambaram, opine, “The state has no business to enter the lives of a couple,” the other section considers safeguarding the sanctity and morality of Indian culture as their eternal duty.

Before this matter enters into a legal quagmire ahead of the Lok Sabha elections in 2024, what is your opinion on it?