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Answer
Introduction
Adultery refers to the act of a married person engaging in
sexual relations with someone who is not their spouse. In India, adultery was a
criminal offense under Section 497 of the Indian Penal Code (IPC) until it was
declared unconstitutional by the Supreme Court in 2018.
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Definition and Essentials of this
offence
The offence of adultery is dealt under section 497 of IPC.
It provides that:
1.
If a man has sexual intercourse with a female,
2.
who is the wife of another man or who he
believes to be the wife of another man,
3.
without the consent or assistance of her
husband,
4.
and the sexual intercourse is not rape, i.e., it
is voluntary,
5.
then that person was guilty of the offense of
adultery under section 497 of the Indian Penal Code.
Punishment for Adultery
Any person who commits the offence of
adultery shall be punished with imprisonment of either description for a term
which may extend to five years, or with fine, or with both.
Landmark Cases
Yusuf Abdul Aziz vs state of Bombay, 1954:
In this case, the court held that a woman cannot be punished under this
section, not even as an abettor.
Joseph Shine vs Union of India, 2019 3 SCC
39: In this case, the Supreme Court struck down the law of adultery, declaring
it as unconstitutional and gender-biased. The court also struck down section
198 of the Criminal Procedure Code, which provides for the procedure to file a
complaint of adultery.
The Supreme Court's decision to decriminalized
this offence was based on several reasons, including:
1.
The phrase used in section 497, "without
the consent or connivance of the husband," implied that women were the
property of their husbands, implying ownership over their minds and bodies. If
the husband gave consent, the other person engaging in sexual intercourse with
his wife would not be guilty of adultery.
2.
The law of adultery does not give rights to the
other wife, whose husband has done the act of adultery. She can’t prosecute her
husband under section 497 of the Indian Penal Code.
3.
Section 497 was deemed a gender-biased law that
restricted a woman's sexual sovereignty but not that of a man.
4.
Right to life under Article 21 of the Indian
Constitution also includes one’s own way of living until it harms any other
person’s life. Sexual orientation is one’s own individual choice, and it can’t
be treated as a crime.
Note:
For the purpose of military and other armed forces acts, this provision still
applies, with the suitable modifications.
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