Adultery- What Is It And What Are The Laws In Order To Prevent It?

The word ‘Adultery’ is derived from the word ‘Adulterare’ which means to pollute or contaminate.’

Definition

Adultery in marriage is defined as volitional sexual relations between a married person and another person to whom he/she is not lawfully wedded. It is an extramarital relationship that is considered to be wrong on moral, social, legal as well as religious grounds.

Adultery defined in different religions

Religions austerely disgrace the concept of adultery and consider it a sin that must be harshly punishable.

In Hinduism, matrimony is an immensely sanctified relation and adultery is considered a breach of dharma.

In Christianity, adultery is condemned as a blasphemous act and whoever commits adultery must receive capital punishment as it is a sin so grave that it cannot be forgiven.

Similarly, Islam states that anyone who commits adultery should be stoned to death.

Adultery without a religious background is termed as “Infidelity”. 

History of Adultery

Science explains the inception of the concept of marriage and their studies show that in the early days when homo sapiens used to mate, it was majorly for pleasure but the child born out of it was solely the mother’s responsibility. As times passed by, homo sapiens developed a paternal instinct and men and women started getting married to form a family.

Marriage was agreed upon as an agreement wherein the couple would not mate with any third party, majorly to wipe out any biological questions even before it arises and to support the newly developed paternal instincts. Since the beginning of marriage, all the ancient civilizations have been known to disgrace adultery.

Feminist studies claim that the origins of marriage were completely unfeminist and women were treated as properties to be exchanged or to be given away. It was only in the 18th Century that marriage became about love, emotion, comfort and support and when people did not get that in their marriages, they started seeking it outside of marriage in the forms of extramarital relationships, otherwise termed as adultery. 

Laws and Regulations

Justice Nariman explains the background of Adultery laws. Indian Penal Code (IPC) was enacted in 1860 and India had no divorce laws back then because in Hinduism, the religion that was vastly followed by the people, there was no concept of divorce. Marriage was considered a sacrament that could not be broken.

However, Hindu men could marry any number of women and the concept of adultery did not quite fit with them because even if they did have sexual intercourse with an unmarried woman, they could marry the woman at any subsequent point in time.

Therefore, there were no solid grounds for punishing the man. The wife, however, could not have as many husbands as she pleases and thus the law of adultery only discussed the consequences of a woman breaking the sacrament of marriage.

With the inception of “The Hindu Marriage Act, 1955“, a Hindu man could only have one wife at a time and adultery became grounds for divorce in the Hindu Law. 

Elaborating the law, if a married woman had an extramarital relationship with a man who knew that she is married, he could be sued by the husband of the woman. However, if a married man had an extramarital relationship with a woman outside of his marriage, the wife could do nothing about it legally.

In the case of Joseph Shine v. Union Of India, 2018 the law for adultery was altered. Neither a man nor a woman could hold the partner of his/her spouse liable for breaking the marriage. Adultery remains a solid ground for divorce but it is no longer considered a criminal offence. 

The judges pointed out that this law has been treating women as mere properties owned by their husbands, who have no say in anything, but now that women are educated and independent, the laws called for a change.

The Government of India moved to the Supreme Court to not legalise adultery as it stands in contradiction to the “ethos of India” but India needed to protect its women from being treated as mere objects.

Supreme Court struck Section 497 of the IPC and Section 198(1) and 198(2) of CrPc.

The law violated Article 14 [Right to Equality] and was sexist, discriminative and it was time to strike it out. It also violated the privacy, dignity and autonomy of a woman and therefore adultery was decriminalized to secure equality among the spouses.

Angelina Bernard

Angelina is a second-year BA.LLB student, who is neither a geek nor a dolt. She reads up to the snuff and writes on socially strained topics. She likes the law and associates it with every situation to establish a firm stance.