The age-old complaint of society, i.e. adultery which is one of the few contentious issues often dealt in connection with dissensions that arise due to dynamism of mentality of people, especially in Indian scenario where conservative perspective is no longer considered as valuable as used to be welcomed in the past.
The bygone laws of adultery in India were tinted with prejudice and swayed towards men, while paying no regard to the sexual and personal rights enjoyed by women. Nevertheless, adultery in India was a criminal offence only until 27th September 2018, when judicial activism intervened and led to the decriminalisation of adultery on the grounds of Constitutional provisions like Right to Personal Liberty and Right to Privacy.
The repealed Section 497 of the Indian Penal Code, 1860, apparently dealt with adultery, however the notions of gender-equality entirely lacked in its framework. As per this provision, merely men had the right to sue the adulterous male, depriving the innocent wife of the adulterous husband of the opportunity to raise any action against him in the court of law. Despite of the Constitution of India providing the Parliament with the power to make special laws for women via the implications of Article 15 (3) of the Constitution, but this provision nowhere states that such laws made must be inherently bias against men.
Surprisingly, plenty of attempts had been made in the near past in order to decriminalise this apparent offence which was consistently in conflict with one’s right to personal liberty and right to privacy, but it was only in 2018, in the landmark judgment given by the five-judge bench led by the Chief Justice of India Dipak Misra which moulded the derogatory provision into a correct one.
Now, a question that must have left us pondering is that whether one is now free to engage into adulterous relationships that may impair the very foundation of the institution of marriage. Undoubtedly, the Supreme Court of India has exercised its due diligence and has made adultery to be a ground for dissolution of marriage, whereby even women would now be capable of enforcing it against their adulterous husbands. Decriminalisation of adultery has not washed down all the repercussions that would crop up out of an adulterous act because civil litigation in matrimonial cases is till admissible in the court of law. Also, abetment of suicide committed by the spouse whose utmost cause is adultery still remains to be a criminal offence.
The 158 years long expedition of adultery in India had been tried against by various attempts of revocation, however, none until the one made in the case of Joseph Shine v. Union of India succeeded in rescinding the notion which has been prevalent since times immemorial. Despite of its decriminalisation, there are multiple domains which remain unanswered that must be addressed by the governmental authorities in order to result in an efficient redressal system. This progressive step taken by the Apex Court not only paves the way towards feminist jurisprudence, but creates an awareness about the importance and authority of judicial activism amongst the masses.
ABOUT THE AUTHOR: This article is written by Ragini Juneja, our intern. Ragini is a student of law in Amity Law School, Delhi (Affiliated to IP University). She lays immense emphasis on awareness of one’s own rights and entitlements as a precondition for confidence, self-esteem and dignity. Her words strive to help women in unclasping their latent strengths which have been suppressed by male chauvinism.