Editorial of the Day: Re-Criminalising Adultery

Re-Criminalising Adultery

Context: The Parliament Standing Committee on Home Affairs suggests amending the Bharatiya Nyaya Sanhita Bill, 2023 to criminalize adultery on gender-neutral terms.

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Adultery: Definition and Law

Adultery is defined as a voluntary sexual relationship between a married individual and someone who is not their spouse.

Adultery Law in India

• Defined under IPC Section 497, it previously penalised only men for adultery, treating women as property and not as an abettor.
• The law was seen as treating the wife as her husband’s property.
• Adultery remains a valid ground for divorce under the Marriage Laws (Amendment) Act..

Legislative History

• Adultery was initially not criminalised in the Indian Penal Code due to the sacramental view of marriage.
• Over time, there were recommendations for gender-neutral provisions, but changes were gradual.
  • For Instance, The Law Commission in 1971 and the 2003 Malimath Committee suggested keeping adultery as an offence, focusing on marital sanctity.

Supreme Court Judgment: Joseph Shine v. Union of India (2018)

• Decriminalized adultery, maintaining it as a civil wrong and a ground for divorce.
• Ruled that criminalising adultery intrudes into marital privacy and perpetuates gender stereotypes.

Parliamentary Panel’s Recommendations

• Proposes reinstating adultery as a criminal offence but on gender-neutral grounds.
• Emphasises preserving the sanctity of marriage and addressing gender bias in the previous law.
• Dissent Note: Opposition MPs argue against criminalising adultery, stating it’s a private matter between spouses and shouldn’t be treated as a crime.

Parliamentary Authority to Overrule Judicial Pronouncements

• Parliament can legislate to overrule judicial rulings if it alters the legal basis of the judgement.
• the Supreme Court in NHPC Ltd. v. State of Himachal Pradesh Secretary reiterated that the legislature is permitted to remove a defect in an earlier legislation, as pointed out by a constitutional court, and that laws to this effect can be passed both prospectively and retrospectively.
• Legislation that fails to rectify these defects, attempting only to reinstate a previously invalidated law, is considered ultra-vires (beyond legal authority).

Current Status: The proposal to criminalise adultery in a gender-neutral manner is under consideration, aiming to balance legal perspectives with societal values regarding marriage.

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