A CRITICAL ANALYSIS ON DECRIMINALISATION OF ADULTERY
Criminal Law is a body of International law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against humanity, as well as the crime of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law. “Classical” international law governs the relationships, rights, and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation of those prohibition imposed by individual states. International criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals. Some precedents in international criminal law can be found in the time before World war 1. However , it was only after the war that a truly international crime tribunal was envisaged to try prepetrators of crimes committed in this period. Thus, the treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm 2 of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After World war 2, the allied powers set up an international tribunal to try not only war crimes, bit crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgements on 30 September/ 01 October 1946. A similar tribunal was established for Japanese war crimes (The International Military Tribunal for the Far East). It operated from 1946 to 1948.
Adultery was not an offence in India either for men or for women before the Indian penal code was enacted. The first report of the Penal code was also not included. The second law, nevertheless, was supplemented by the commission. The law commissioners observed that adulterous men were not punished by the then prevalent social infrastructure and the secondary and economically dependent position of women. Further, the authors observed that the adulterous relationship of a wife is socially conditioned as a polygamy. Nor was it a culture of shock for her. She felt humiliated. Adultery has been incorporated into the Indian Penal Code as an offence which punishes only the adulterous men who, in their view, have lived already in law and oppressive conditions in the family. In its recent decision on the case of Joseph Shine V. Union of India the Supreme Court abolished the 158-year old Victorian Morality Act on Adultery. The decision is one of this kind, and all prior judgements upholding the crime of adultery have been overridden.
The advantages have disadvantages and the same may be true of this judgements. Now, therefore, adultery is legal but still unethical. The marriage institution is dependent on the mutual trust of the partners. The court has rejected its interference with people’s personal and moral lives. Adultery has become a civil mistake, the remedy for which is divorce.
- Scope of Research
This study will be devoted to the Adultery Law in India, before and after Joseph Shine V. Union of India judgement. Initially, the Victorian Adultery Statue, which was practice for 165 years now. Secondly, the question of the constitutionality of Section 497 of the Indian Penal Code has, in the past, been checked. Thirdly, the critique of Joseph V. Union, India’s latest decision on the decriminalization of old adultery law. Finally, the dissertation deals with the different countries’ adultery legislation and penalties.
- Research Problem
Adultery is a universal occurrence of human beings. It is threatening the heart of the family life and the stability of marriage institution and could lead to uncertainty about the fatherhood of marriage. The question of law is not only a moral one, it has been addressed in numerous avenues over the last couple of millennia. The legal implications of adultery vary depending on location, communication values, era in history and the dominant ideology. There have been many controversies and discussions about whether or not in India adultery should be a crime. Adultery was an offence under the Indian Penal Codification Code until the apex Court in India decriminalized adultery in the landmark judgement on the grounds that this principle was archaic and discriminatory in terms of gender. For reasons more than one, the Supreme Court’s decision in Joseph Shine V. Union of India, which struck Section 497 of Indian Penal Code and Section 198(2) of the Code is monumental. The court has seldom defined a semantic feature of a penal code in its institutional history.
- In Joseph Shine V. the Union of India, what was the rule on adultery before the landmark ruling by the Supreme Court?
- In the USA and in England and in other countries what is adultery’s juridical status? Is it a felony or a divorce only?
- In a seminal decision of Joseph Shine V. Union of India, what was the supreme court strategy to decriminalize adultery?
Prior to the landmark ruling, the rule on adultery was an archaic law that discriminated against was an archaic law that discriminated against women and men. In ruling former section 497 of the Indian Penal Code as unconstitutional, the Supreme Court was right.
(E) Review of Literature
1.Alyassa Miller, “Punishing Passion: A Comparative Analysis of Adultery Laws in the United States of America and Taiwan and their Effects on Women Alyssa Miller”, Fordham International Law Journal Volume 41,Issue 2 Article 4 Pg. 425-470.
This comprehensive analysis contrasts the adultery law between the united states and Taiwan. The author deeply explores the history of the Adultery Act and its development in years of modernization and globalization in the Americans and Taiwan. The article compares adultery ( having a wedding sex ) with passion. The article also states that, although adultery is legally illegal in most states in the US, the accused seldom receive serious penalties such as imprisonment. This is not the case for Taiwan alone, however. Adultery is condemned by other countries in the Middle East and adulterous women are spiteful and physical or psychological than adulterous men. The analyst then goes on to rationalize why Adultery must not be considered a crime, and how it is discriminated against by women, and puts forward arguments in support of decriminalizing adultery. The author compares the laws of adultery in the United States of America and Taiwan in the following points-
- Repercussions for Adultery in Society
- Present and past Legal status of adultery in the United States and Taiwan
- The rate of women convicted of the offence
- Anna Duff, “What is adultery is it the same as cheating , is it illegal in the UK and is it grounds fo divorce?, “The Sun (18th September 2018)
Anna duff’s Article deals with the United Kingdom’s Adultery law. The author explains how adultery and cheating are different, a common mistake made by many. In England and Wales, the article states that the definition of adultery is limited. The term “sexual intercourse between an accepting man and women” refers to rape in the UK if at least one partner is married to another person. Interpreting aforementioned, it was pointed out that the definition of adultery in 1860 did not discriminate against a man or a woman by making the man responsible for the crime, in contrast with India’s archaic law and definition of adultery under the Indian Penal Code (3). Both can be found guilty of the crime of adultery in United Kingdom. The courts in the UK believe that an Adultery Act might be classified as “unreasonable conduct”, but not in the eyes of the law. Adultery can certainly be used by both spouses as a ground for divorce. The law also provides that, within six months of the date on which the cause of the action arose, I request for divorce for grounds of adultery has to be filed against the court, that begin adultery to others’ conscience. In view of the recent developments in homosexual relations, the author considers the aforementioned definition of adultery to be archaic.
- Abha Singh, “ Decriminalization of Adultery: A Setback to the Institution of marriage in India”, Outlook India (27 September 2018).
The author Abha Singh criticizes Joseph Shine V. Union of India’s Supreme Court judgement. The strongly believes that marriage is a sacrament and not a legal form of infidelity. The author believes that the divorce rates in Indian is already rising and this decision, which only increases the rates of failed marriages by decriminalizing adultery.
4.Soutik Biswas, “Adultery longer a criminal offence in India” BBC News, Delhi (27 September 2018)
The paper highlights Joseph Shine V. Union of India , the Indian judgement. The article summarizes the judgements briefly and discusses the reasons behind the archaic law. The article also incorporates criticism of the new law by lawyers and politicians. The author then covers countries where adultery is a criminal offence. In mentioned Islamic states adultery is considered to be a crime, as per author:
- Saudi Arabia
The author then narrates about Taiwanese. Adultery legislation in Indonesia and Korea. At first, Indonesia codifies rules that forbid even consensual sex without marriage. The Author concludes by saying that in sixty-one countries adultery has been decriminalized, and the archaic concept must also be abolished. But the author thinks that the reason for divorce is that adultery can be justified.
5.Justice K.T. Thomas and Advocate M.A Thomas, “The Indian Penal Code” , Ratanlal and Dhirajlal, Volume 2 (33rd Edition,2017)
Ratanlal and Dhirajlal’s 33rd edition is an Indian Penal Code textbook commentary. The book helps the researcher assemble knowledge regarding the various judgements of the supreme court and high court where the constitutionality of Article 497 of the Indian Penal Code was at issue. The report outlines the decision of Yusuf Abdul Aziz v. State Bombay in detail, in which the conclusion was that the constitution is not ultra vires buy Section 497 of the IPC, because of the woman’s exception. This section does not infringe Articles 14 and 15 of the Indian Constitution.
This textbook then addresses the Sowmithri Vishnu v. Union of India decision where, while rejecting the petition challenging the provision in accordance with section 497 of the Penal Code, the supreme courts affirmed its earlier view. It has been held that section 497 does not discriminate irrationally / classify between women and men, and therefore it is not unconstitutional.
When the current discussion on the Supreme Court’s decision takes us to yet to be seen. While the Supreme court has argued that the law unfairly considers women as property of men and goes against fundamental rights, adultery is still a legal ground for divorce. It can also be seen as something which places a fair restriction on sexual autonomy, which means that there are legitimate restrictions on sexual autonomy. Therefore, it can be inferred that if one of the two spouses violates the sanctity of marriage, the legal system does not control which one should sleep with, but rather regulate the separation process. In addition, the criminalization of broken faith in a marriage does not lead to a couple returning to a blissful way of life, nor does it alter society’s social conduct.
ARTICLE REVIEWED BY CHANDANA SHEKAR