Introduction
Extra-marital affairs or adultery are considered to be one of the most heinous crimes against the sanctity of marriage. In India, the subject of adultery has been a topic of discussion for many years. Although adultery has always been frowned upon, it is not a criminal offence in India. In this article, we will discuss the concept of extra-marital affairs in India, along with the landmark judgments that have shaped the legal and social aspects of this subject.
Also Read: Same-Sex Marriage in India: A Long Journey Towards Equality
History of Extra-Marital Affairs in India
Extra-marital affairs have been present in India for centuries, with references to adultery in ancient texts such as the Manusmriti and the Kamasutra. In ancient India, adultery was a punishable offense, and the punishment varied depending on the caste of the individuals involved. In the medieval era, adultery was still considered a grave offense and was punishable by death. However, in the colonial era, British rule brought about changes in the legal system, and adultery was no longer a capital offense. Nevertheless, it remained a crime punishable by imprisonment.
Extra-marital affairs have been present throughout human history. In ancient civilizations, adultery was often punished with death. In medieval Europe, adultery was a crime punishable by flogging or fines. In the 19th century, many Western countries criminalized adultery, and those who committed it faced imprisonment or fines.
What is Extra-Marital Affairs?
Extra-marital affairs refer to sexual or romantic relationships outside of marriage. The concept of extra-marital affairs is not new and has been prevalent throughout history. It is generally considered a violation of trust and commitment between two partners in a marriage. While extra-marital affairs are not illegal in India, they are still viewed as a social taboo.
The Legal Aspect
Extra-marital affairs are not a criminal offence in India. In 1951, the Indian Penal Code (IPC) was amended to remove adultery as a criminal offence. However, adultery can be a ground for divorce under the Hindu Marriage Act, 1955. According to Section 13(1)(i) of the Act, a marriage can be dissolved if one of the spouses has committed adultery.
In India, extra-marital affairs were criminalized until 2018 when the Supreme Court struck down Section 497 of the Indian Penal Code. Prior to this, adultery was a crime punishable by imprisonment. The law only punished men who engaged in extra-marital affairs with married women but did not hold women responsible for their actions.
Landmark Judgments
Over the years, there have been several landmark judgments that have shaped the legal and social aspects of extra-marital affairs in India.
Sowmithri Vishnu vs Union of India
In 1985, the Supreme Court of India delivered a landmark judgment in the case of Sowmithri Vishnu vs Union of India. The court held that Section 497 of the IPC, which criminalized adultery, was unconstitutional as it violated the fundamental rights of equality and privacy.
“The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.
The offence of adultery, as defined in section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends”
Read Judgement: Sowmithri Vishnu vs Union of India
Joseph Shine vs Union of India
In 2018, the Supreme Court of India again addressed the issue of adultery in the case of Joseph Shine vs Union of India. The court struck down Section 497 of the IPC, stating that it was archaic and treated women as the property of men. The court held that adultery was a private matter between two consenting adults and should not be criminalized.
“The Supreme Court struck down Section 497 of the IPC on the grounds that it violated Articles 14, 15 and 21 of the Constitution. The five Judge Bench unanimously, in four concurring judgments, held that the law was archaic, arbitrary and paternalistic, and infringed upon a woman’s autonomy, quality, and sequestration”
Read Judgement: Joseph Shine vs Union of India
Yusuf Abdul Aziz vs. State of Bombay
The Supreme Court of India held that Section 497 of the Indian Penal Code, which made adultery a criminal offense, was unconstitutional as it violated the fundamental rights of the individuals involved.
Read Judgement: Yusuf Abdul Aziz vs. State of Bombay
Impact of the Judgments
The judgments in the Sowmithri Vishnu and Joseph Shine cases have had a significant impact on the legal and social aspects of extra-marital affairs in India. The decriminalization of adultery has been seen as a step towards gender equality and women’s empowerment. It has also been seen as a step towards the recognition of the autonomy of adults in private matters.
Countries Where Adultery is Legal
In many countries, extra-marital affairs are not considered a criminal offense. These countries have adopted a liberal attitude towards personal relationships and believe that adults should have the freedom to make their own choices. In these countries, adultery is viewed as a personal matter between consenting adults, and the state has no right to interfere in their private lives.
Some countries that have legalized extra-marital affairs include:
- The Netherlands
- Belgium
- Denmark
- France
- Germany
- Sweden
- Canada
In these countries, adultery is not a criminal offense, and individuals are free to have consensual relationships outside of their marriage.
Countries Where Adultery is Illegal
On the other hand, some countries criminalize extra-marital affairs. These countries view extra-marital affairs as a moral offense that undermines the sanctity of marriage and harms the family structure. In these countries, individuals who engage in extra-marital affairs can face imprisonment, fines, or other penalties.
Some countries where extra-marital affairs are illegal include:
- Saudi Arabia
- Iran
- Pakistan
- Bangladesh
- Indonesia
- Philippines
- United Arab Emirates
In these countries, adultery is considered a criminal offense, and those who commit it can face harsh penalties.
Can Extra-Marital Affair/Adultery be Ground to Divorce?
Yes, extramarital affairs can be grounds for divorce in India. Section 13(1)(i) of the Hindu Marriage Act, 1955, states that a spouse can seek divorce if the other spouse has committed adultery. This provision applies to Hindu marriages, which are the most common type of marriages in India.
“Section 13(1) in The Hindu Marriage Act, 1955
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;”
Also Read: Can Police Arrest Anyone or There Is Any Procedure to Arrest? Police Power to Arrest
Social Impact
Although extra-marital affairs are not illegal in India, they are still viewed as a social taboo. The social impact of extra-marital affairs can be severe, particularly for women. Women who engage in extra-marital affairs are often subjected to social stigma, ostracism, and even violence. The social impact of extra-marital affairs is particularly severe in rural areas, where the stigma attached to adultery is even more significant.
Conclusion
Extra-marital affairs are a complex issue in India. While they are not a criminal offence, they are still viewed as a social taboo. The landmark judgments in the Sowmithri Vishnu and Joseph Shine cases have had a significant impact on the legal and social aspects of extra-marital affairs in India. The decriminalization of adultery has been seen as a step towards gender equality and women’s empowerment.
However, the social impact of extra-marital affairs is still significant, particularly for women. It is essential to continue the conversation around extra-marital affairs and work towards removing the stigma attached to it. Only then can we hope to create a more equitable and just society for all.
Disclaimer
The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected. Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.