THE DECRIMINALIZATION OF ADULTERY IN INDIA: IMPACT ON MARITAL JURISPRUDENCE

By Dr. Pooja Sood & Dr. Vinay Sharma
Associate Professors, UILS, Swami Sarvanand Giri Punjab University Regional Centre, Hoshiarpur, Punjab

ABSTRACT

This paper examines the profound impact of the decriminalization of adultery in India on its marital jurisprudence. Prior to the landmark Joseph Shine v. Union of India judgment in 2018, Section 497 of the Indian Penal Code criminalized adultery, treating the adulterous husband as the sole offender and the wife as a victim. The striking down of this archaic law has ushered in significant shifts in how adultery is viewed and handled within the context of matrimonial disputes. This abstract explores the legal ramifications of this decision, analyzing its influence on grounds for divorce, maintenance claims, child custody battles, and the broader understanding of marital fault and sanctity. It delves into how the decriminalization has redefined the boundaries of state intervention in personal relationships and its implications for evolving notions of gender equality and individual autonomy within marriage. Furthermore, the paper considers the ongoing debates and challenges arising from this legal transformation, including its potential effects on societal norms and the future trajectory of marital laws in India.

Keywords: Decriminalization, Marital Jurisprudence, Gender Equality, Divorce Grounds etc.

I. INTRODUCTION

For over a century and a half, the legal landscape of marriage in India was punctuated by the long shadow of Section 497 of the Indian Penal Code, a provision that criminalized adultery. This archaic law, rooted in Victorian-era sensibilities, cast the adulterous husband as the sole perpetrator of a marital wrong, while curiously positioning the wife as a passive victim, incapable of either initiating or being prosecuted for the same offense.1 This peculiar legal framework, ostensibly designed to protect the sanctity of marriage, inadvertently perpetuated a patriarchal structure that denied women agency and reinforced the notion of the husband as the proprietor of his wife's fidelity. The very existence of Section 497 spoke volumes about the state's intervention in the intimate sphere of personal relationships, dictating moral boundaries and wielding the threat of criminal sanction to enforce marital fidelity, at least for men.2 The legal and societal underpinnings of this provision faced increasing scrutiny in the modern era. Critics argued vehemently that Section 497 was an anachronistic relic, fundamentally flawed in its discriminatory treatment of genders and its intrusion into the private lives of consenting adults. The law was lambasted for its failure to recognize the equal agency of women in marital relationships, its implicit endorsement of a proprietary view of marriage, and its selective criminalization that often-exacerbated existing gender inequalities. The burgeoning discourse on individual autonomy, gender equality, and the evolving understanding of marital relationships in the 21st century created an environment ripe for legal challenge.3

The culmination of this growing discontent arrived in 2018 with the landmark judgment of the Supreme Court of India in Joseph Shine v. Union of India.4 In a progressive and transformative decision, the apex court struck down Section 497 as unconstitutional, declaring it to be discriminatory, arbitrary, and violative of fundamental rights, including the right to equality (Article 14) and the right to life and personal liberty (Article 21) enshrined in the Constitution of India. The five-judge bench, in a unanimous verdict, unequivocally held that the law perpetuated gender stereotypes, treated women as chattel, and unjustifiably criminalized conduct that should rightfully fall within the realm of personal and private life.5

The decriminalization of adultery marked a watershed moment in Indian marital jurisprudence, dismantling a legal edifice that had long shaped the understanding of marital obligations and transgressions. This judicial pronouncement transcended the mere striking down of a penal provision; it triggered a significant recalibration of the legal framework governing marital relationships and its intersection with criminal law.6 The immediate consequence was the removal of the threat of criminal prosecution for engaging in extramarital sexual relations. However, the ripples of this decision extended far beyond the realm of criminal liability, profoundly impacting the civil remedies available in matrimonial disputes. The abolition of criminal adultery has necessitated a re-evaluation of its relevance within the context of divorce proceedings, maintenance claims, and child custody battles. While adultery is no longer a crime punishable by the state, its significance as a potential ground for seeking divorce remains a critical area of inquiry. Courts are now grappling with how to interpret and apply the concept of adultery as a fault ground for dissolution of marriage in the absence of criminal sanctions. The evidentiary standards, the burden of proof, and the weight accorded to adultery in determining marital fault are all undergoing a process of redefinition.7

Furthermore, the decriminalization has implications for financial settlements and maintenance. Previously, the finding of adultery, particularly on the part of the husband, could influence decisions regarding alimony and maintenance. The removal of the criminal stigma associated with adultery necessitates a nuanced understanding of its impact on the economic aspects of marital breakdown. Courts are now tasked with determining whether and how adultery should factor into the equitable distribution of assets and the determination of spousal support. The ramifications extend to the sensitive issue of child custody. Allegations of adultery have often played a role in custody disputes, with one parent arguing that the other's extramarital involvement demonstrates a lack of moral character or parental fitness. The decriminalization compels a re-examination of the relevance of adultery in assessing the best interests of the child. Courts must now navigate whether and to what extent a parent's extramarital conduct should influence decisions regarding the upbringing and welfare of their children.8

Beyond the specific legal remedies, the decriminalization of adultery has broader implications for the societal understanding of marriage, fidelity, and individual autonomy. It signals a shift away from the state acting as a moral guardian in the private sphere of marital relationships and underscores the importance of individual choice and responsibility within the confines of marriage. This legal transformation prompts a critical reflection on the evolving norms of marital conduct and the boundaries of state intervention in personal laws. This paper seeks to delve into the intricate web of legal and social consequences stemming from the decriminalization of adultery in India. It aims to analyze the impact of this landmark judgment on various facets of marital jurisprudence, exploring how it has reshaped the grounds for divorce, influenced maintenance and custody decisions, and contributed to a broader re- evaluation of marital fault and the sanctity of marriage in the Indian legal context. By examining the legal reasoning behind the Joseph Shine verdict and its subsequent ramifications, this paper endeavours to provide a comprehensive understanding of the evolving landscape of marital law in India in the wake of this significant legal reform.9

II. HISTORICAL AND LEGAL BACKGROUND: UNRAVELING THE THREADS OF CRIMINAL ADULTERY IN INDIA

To fully comprehend the transformative impact of the decriminalization of adultery on Indian marital jurisprudence, it is crucial to trace the historical and legal trajectory of the now-defunct Section 497 of the Indian Penal Code (IPC). Understanding its origins, its interpretation by the judiciary over the decades, and the persistent challenges to its constitutional validity provides the necessary context for appreciating the significance of the Joseph Shine judgment.

2.1 ​Origin of Section 497 IPC

Colonial Roots and Patriarchal Underpinnings

Section 497 of the IPC was a direct transplant from English common law, specifically embodying the Victorian-era understanding of marriage and the subordinate status of women within it. Enacted in 1860, the provision criminalized sexual intercourse by a man with a woman who he knew or had reason to believe to be the wife of another man, without the consent or connivance of that man.10 Strikingly, the law exempted the woman from any criminal liability, treating her as a victim of the offense committed by the adulterous male partner. Furthermore, the law did not recognize adultery committed by a married man with an unmarried woman as an offense.

The inherent patriarchal underpinnings of this provision are starkly evident. It reflected a societal structure where the husband was considered to have a proprietary interest in his wife's sexuality and fidelity. Adultery was viewed as a transgression against the husband's "property rights" rather than a mutual breach of marital trust. As legal scholars have pointed out, the law implicitly reinforced the notion that a woman's sexuality was under the control of her husband, and any transgression was primarily an offense against him. This framework failed to acknowledge the agency and autonomy of women within marital relationships, reducing them to passive entities devoid of the capacity to either commit or be held accountable for the act of adultery.11

Interpretation by Courts Pre-2018

For over a century and a half, Indian courts grappled with the interpretation and application of Section 497. While upholding its validity for a significant period, judicial pronouncements often reflected the prevailing social norms and the inherent limitations of the law. Courts consistently reiterated the position that the offense of adultery could only be committed by a man and that the wife could not be prosecuted as an abettor or a principal offender.12

Cases like Yusuf Abdul Aziz v. The State of Bombay13 became foundational in upholding the constitutionality of the provision at the time. The Supreme Court, while acknowledging the apparent gender discrimination, reasoned that the provision was a special provision for women, permissible under Article 15(3) of the Constitution, which allows the state to make special provisions for women and children. The court argued that exempting women from prosecution was a measure of protection rooted in societal realities.14

However, even in upholding the law, judicial interpretations often highlighted its anomalies and limitations. The requirement of proving sexual intercourse and the knowledge or reason to believe that the woman was married presented evidentiary challenges. Moreover, the exclusion of consensual adulterous acts where the husband connived or consented further underscored the proprietary nature of the offense. The focus remained on the violation of the marital rights of the husband, rather than the breach of trust or the emotional distress caused to either spouse.

Over time, as societal norms evolved and the discourse on gender equality gained momentum, the inherent biases and limitations of Section 497 came under increasing judicial scrutiny. While earlier pronouncements had largely accepted the legislative wisdom behind the provision, later judgments began to reflect a growing unease with its discriminatory nature. However, until the Joseph Shine verdict, the legal framework remained largely unchanged.15

2.2 ​Gender Bias and Constitutional Challenges

Unequal Treatment of Men and Women Under the Section

The most glaring flaw of Section 497 was its blatant gender bias. It penalized only men for engaging in adultery, while women, even if they were the initiating party in the adulterous act, were immune from prosecution. This differential treatment was predicated on the antiquated notion of women as passive victims and the husband as the aggrieved party whose marital "property" had been violated.

This unequal treatment stood in stark contrast to the principles of gender equality enshrined in the Constitution of India. Article 14 guarantees equality before the law and equal protection of the laws, while Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Section 497 clearly violated these fundamental rights by creating a legal regime where men and women were treated differently for the same consensual act. The law perpetuated a patriarchal stereotype that women were incapable of being perpetrators of marital infidelity and reinforced the idea that their sexuality was subject to the control of their husbands.16

Furthermore, the law's silence on adultery committed by a married man with an unmarried woman further highlighted its inherent inconsistencies. If the objective of the law was to protect the sanctity of marriage, this omission was illogical. It suggested that the law was primarily concerned with safeguarding the husband's exclusive rights over his wife's sexuality, rather than upholding the mutual fidelity expected within a marital bond.17

Inconsistencies with Articles 14, 15, and 21 of the Constitution

The constitutional challenges to Section 497 primarily revolved around its incompatibility with Articles 14, 15, and 21 of the Constitution.18

1. Violation of Article 14 (Equality before Law): As discussed earlier, the discriminatory treatment meted out to men and women under Section 497 was a clear violation of the principle of equality before the law. The law created a special criminal liability solely based on gender, without any justifiable rationale rooted in the nature of the offense itself. Consensual sexual intercourse outside marriage involves two adults, and holding only one party criminally liable based on their gender was inherently discriminatory.

2. Violation of Article 15 (Prohibition of Discrimination on Grounds of Sex): Article 15 explicitly prohibits discrimination on the ground of sex. Section 497 was a prime example of such discrimination, as it penalized men for an act for which women were granted immunity solely based on their gender. The argument that this was a "special provision for women" under Article 15(3) had lost its validity over time, as the law perpetuated inequality rather than promoting empowerment. It reinforced a stereotypical and disempowering view of women within marriage.

3. Violation of Article 21 (Protection of Life and Personal Liberty): The criminalization of adultery was also challenged as an unwarranted intrusion into the personal lives and consensual relationships of adults, thus violating their right to privacy and personal liberty under Article 21. The state's imposition of criminal sanctions for a consensual act between adults within the private sphere was seen as disproportionate and an infringement on individual autonomy and the right to make personal choices about their intimate relationships. The law, by criminalizing a private act, extended the coercive power of the state into the most intimate aspects of human life.

The persistent constitutional challenges, coupled with the evolving societal understanding of gender equality and individual autonomy, ultimately paved the way for the Supreme Court's landmark decision in Joseph Shine. The striking down of Section 497 was a recognition of the inherent flaws and constitutional infirmities of a law that had long stood as an anachronistic symbol of patriarchal control within Indian marital jurisprudence. The subsequent decriminalization has ushered in a new era, demanding a fundamental rethinking of how adultery is viewed and addressed within the framework of marital laws in India.19

III. THE LANDMARK JUDGMENT: JOSEPH SHINE V. UNION OF INDIA

The legal landscape surrounding adultery in India underwent a seismic shift with the pronouncement of the Supreme Court's judgment in Joseph Shine v. Union of India (Writ Petition (Criminal) No. 194 of 2017). This landmark decision, delivered on September 27, 2018, unequivocally struck down Section 497 of the Indian Penal Code, effectively decriminalizing adultery. Understanding the facts, arguments, and the court's reasoning is crucial to grasping the profound implications of this judgment on marital jurisprudence.20

3.1 ​Facts and Procedural History

The case originated from a public interest litigation filed by Joseph Shine, a social activist, challenging the constitutional validity of Section 497 IPC. The petitioner argued that the provision was discriminatory on the basis of sex, violated the fundamental rights to equality, dignity, and personal liberty, and was an archaic law that had no place in modern society.

The petition highlighted the inherent gender bias in the law, pointing out that only men could be prosecuted for adultery, while women, even if they were participants in the act, were immune from criminal liability. Furthermore, the law did not recognize adultery committed by a married man with an unmarried woman as an offense, underscoring its focus on the proprietary rights of the husband rather than the sanctity of marriage itself.21

The matter was heard by a five-judge constitutional bench comprising then Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra. The bench meticulously examined the historical context of the law, its interpretation by various courts over the years, and the evolving constitutional principles of equality and individual liberty.

3.2 Arguments from both sides

Arguments in favor of retaining Section 497 (primarily by the Union of India):

The primary argument advanced by the Union of India was that Section 497 served to protect the sanctity of marriage and preserve the social order. It was contended that adultery was a moral wrong that could destabilize families and lead to societal unrest. The government also relied on the earlier Supreme Court judgments, particularly Sowmithri Vishnu v. Union of India22 and V. Revathi v. Union of India23, where the court had upheld the validity of the provision, albeit with certain observations. The rationale in these earlier cases often revolved around the idea that the law was a special provision for women under Article 15(3) and that holding women liable for adultery could further victimize them.

Furthermore, it was argued that the decriminalization of adultery could have adverse consequences on matrimonial proceedings, potentially weakening the grounds for divorce and impacting the stability of marital relationships. The state emphasized its role in protecting the institution of marriage and preventing its breakdown.

Arguments against Section 497 (by the petitioner and intervening parties):

The petitioners and intervening parties vehemently argued that Section 497 was manifestly arbitrary, discriminatory, and violative of fundamental rights. Their key arguments included:

· Gender Discrimination: The law patently discriminated against men by holding them solely liable for an act in which both individuals were consenting adults. It perpetuated a patriarchal notion of the husband as the owner of his wife's sexuality and failed to recognize the equal agency of women in marital relationships, violating Articles 14 and 15 of the Constitution.

· Violation of Individual Autonomy and Privacy: Criminalizing a consensual sexual act between adults within the private sphere was an unwarranted intrusion into their personal liberty and right to privacy, guaranteed under Article 21 of the Constitution.

The state had no legitimate interest in regulating the private sexual lives of consenting adults through criminal law.

· Anachronistic and Based on Faulty Premise: The law was rooted in outdated Victorian-era morality and failed to reflect the evolving understanding of marital relationships based on equality, mutual respect, and trust. The notion of treating a spouse as the "property" of another was archaic and unacceptable in a modern democratic society.

· Ineffectiveness in Preserving Marriages: Criminalizing adultery had not proven to be an effective deterrent against marital infidelity and often led to further bitterness and acrimony in already strained relationships. Civil remedies for marital wrongs were deemed more appropriate.

· Inconsistency with International Norms: Many progressive legal systems around the world had already decriminalized adultery, recognizing it as a private matter best addressed through civil laws.

3.3 ​Judgment Analysis

In a unanimous and powerfully reasoned judgment, the Supreme Court sided with the petitioners and struck down Section 497 IPC as unconstitutional. The key observations and reasoning of the court were as follows:

Key observations by the Supreme Court

The court unequivocally held that Section 497 was discriminatory and violated the fundamental rights guaranteed under the Constitution. It emphasized that:

· The law treated women as chattel: By not holding women liable for adultery and by framing the offense as one committed against the husband, the law perpetuated the notion that women were the property of their husbands, lacking agency and autonomy over their own sexuality.

· It was based on a flawed premise of marriage: The law assumed a lack of agency on the part of women within marriage and failed to recognize the equal partnership and mutual trust that should form the foundation of a marital relationship.

· It was manifestly arbitrary: There was no intelligible differentia to justify treating men and women differently for the same consensual act. The classification based solely on gender was unreasonable and lacked a rational nexus with the object sought to be achieved.

Role of individual autonomy, dignity, and equality

The judgment placed significant emphasis on the constitutional values of individual autonomy, dignity, and equality. The court asserted that:

· Individual autonomy is paramount: Adults have the right to make their own choices in their private lives, and the state cannot unduly interfere with these choices through criminal law, especially in consensual relationships.

· Dignity of individuals must be upheld: Treating women as passive victims and denying them agency in their sexual lives was an affront to their dignity as individuals. Both men and women are equal partners in a marriage and should be treated as such under the law.

· Equality is a foundational principle: The Constitution mandates equal treatment before the law, and Section 497 was a clear violation of this principle by discriminating solely on the basis of sex.

Overruling of Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India

The Joseph Shine judgment explicitly overruled the earlier Supreme Court decisions in Sowmithri Vishnu24 and V. Revathi,25 which had upheld the validity of Section 497. The court in Joseph Shine reasoned that these earlier judgments had failed to adequately consider the evolving constitutional principles of equality and individual liberty and had perpetuated discriminatory stereotypes. The bench stated that the societal understanding of gender roles and the constitutional imperatives of equality had changed significantly since those earlier pronouncements, necessitating a re-evaluation of the law.

3.4 ​Decriminalization vs. Civil Wrong

The Supreme Court, while striking down the criminal provision of adultery, explicitly clarified that adultery remains a valid ground for divorce under the civil law.26 The court recognized that marital fidelity is an essential aspect of the marital bond and that a breach of this trust can cause significant emotional distress and irreparable breakdown of the relationship.

Therefore, while an individual can no longer be criminally prosecuted for engaging in adultery, a spouse can still seek a divorce on the grounds of adultery under the relevant personal laws. This distinction is crucial. The decriminalization signifies the state's withdrawal from using the coercive power of criminal law to regulate private sexual conduct within marriage. However, it does not negate the significance of adultery as a fault ground in civil matrimonial disputes.27

The Joseph Shine judgment thus represents a significant step towards aligning Indian marital law with the principles of gender equality, individual autonomy, and the evolving understanding of marital relationships. By decriminalizing adultery, the Supreme Court has affirmed the right of individuals to make personal choices in their private lives while simultaneously acknowledging the importance of marital fidelity within the civil framework of divorce. This delicate balance reflects a nuanced approach to reforming marital jurisprudence in India.

IV. IMPACTS ON MARITAL JURISPRUDENCE IN INDIA

The decriminalization of adultery in India through the Joseph Shine judgment has ushered in significant transformations within the realm of marital jurisprudence. While no longer a criminal offense punishable by the state, adultery continues to hold relevance as a civil wrong, particularly within the context of matrimonial disputes. This section examines the multifaceted impacts of this legal shift on grounds for divorce, maintenance claims, child custody battles, and the interpretation of matrimonial obligations.

4.1 Adultery as a Civil Offense: Grounds for Divorce

Despite its decriminalization, adultery remains a recognized ground for seeking divorce under various personal laws in India. The legal framework, however, is adapting to the absence of criminal sanctions.28

· Status under Various Personal Laws:

o Hindu Marriage Act, 1955: Section 13(1)(i) of the Hindu Marriage Act explicitly states that adultery is a ground for divorce. Post-Joseph Shine, the interpretation of "living in adultery" continues to be a valid basis for seeking dissolution of marriage. Landmark cases like Naveen Kohli v. Neelu Kohli (2006

(4) SCC 558)29, while decided before the decriminalization, highlighted the importance of marital fidelity and the impact of infidelity on the matrimonial bond. Now, courts will assess adultery solely as a breach of marital vows within the civil context.30

o Muslim Law: While classical Islamic law has provisions addressing marital infidelity, the Dissolution of Muslim Marriages Act, 1939, provides grounds for divorce for Muslim women, which can be invoked in cases of the husband's adultery or other forms of marital misconduct. The decriminalization does not alter the availability of these civil remedies.31

o Indian Christian Marriage Act, 1872 and Divorce Act, 1869: These Acts also recognize adultery as a ground for divorce. Section 10 of the Divorce Act, for instance, allows either spouse to petition for dissolution of marriage on the ground that the other has, since the solemnization of the marriage, been guilty of adultery. The decriminalization means that proving adultery will now solely focus on civil evidentiary standards.32

o Parsi Marriage and Divorce Act, 1936: Section 32 of this Act provides adultery as a ground for divorce. Similar to other personal laws, the focus will now be on establishing adultery as a matrimonial wrong within civil proceedings.33

o Special Marriage Act, 1954: Section 27 of this secular law also includes adultery as a ground for divorce. The principles governing its application in civil courts remain consistent post-decriminalization.

· Burden of Proof and Evidentiary Standards: In civil cases for divorce based on adultery, the burden of proof lies on the petitioner to establish that the respondent has committed adultery. However, the standard of proof in civil cases is generally "preponderance of probabilities," which is lower than the stringent standard of "beyond reasonable doubt" required in criminal proceedings.

Prior to decriminalization, evidence collected for criminal prosecution could sometimes be used in civil proceedings. Now, parties seeking divorce on grounds of adultery will have to independently adduce evidence to satisfy the civil court. This evidence can include direct evidence (though often difficult to obtain), circumstantial evidence such as hotel records, call details, emails, or witness testimonies. Cases like Dastane v. Dastane34 established the need for cogent and convincing evidence in matrimonial disputes, a principle that continues to apply to proving adultery as a ground for divorce. The absence of criminal investigation reports will necessitate a greater reliance on private investigation and circumstantial evidence presented before the civil court.

4.2 ​Effect on Maintenance and Child Custody

The decriminalization of adultery has nuanced the way it influences decisions regarding maintenance and child custody.

· Influence of Adultery on Alimony/Maintenance Decisions: Under various personal laws, the conduct of the parties is a relevant factor considered by courts when determining the quantum of alimony or maintenance. While adultery is no longer a criminal offense, it can still be considered a significant matrimonial wrong that contributed to the breakdown of the marriage.

For instance, under Section 25 of the Hindu Marriage Act, the court can consider the conduct of the parties when deciding on permanent alimony. If the respondent has committed adultery and the marriage has been dissolved as a result, this could be a factor in determining the alimony to be paid. Similarly, under Section 125 of the Criminal Procedure Code (CrPC), which provides for maintenance to wives, the wife is not entitled to maintenance if she is living in adultery. This provision remains unaffected by the decriminalization of adultery as a criminal offense. Courts will continue to examine evidence of adultery to determine its impact on the right to and quantum of maintenance. Cases like K. Srinivas v. K. Sunita35 emphasized the importance of considering the conduct of both spouses when deciding maintenance.36

· Consideration in Custody Battles and Guardianship Laws: In child custody battles, the paramount consideration for the court is the "best interests of the child." Allegations of adultery by one parent can be brought before the court as a factor potentially affecting their suitability as a custodial parent. The argument often revolves around the moral character and stability of the parent involved in the adulterous relationship.

However, post-Joseph Shine, courts are likely to adopt a more nuanced approach. While evidence of adultery might be considered, it will likely not be the sole or determining factor in deciding custody. The focus will remain on which parent can provide a stable, nurturing, and secure environment for the child's overall well-being. Courts will likely assess the impact of the adulterous relationship on the child's life and the parenting abilities of the concerned individual. Cases like Gaurav Nagpal v. Sumedha Nagpal37 highlighted the primacy of the child's welfare in custody matters, a principle that will continue to guide courts in the post- decriminalization era. Adultery might be seen as indicative of a parent's moral character, but its direct impact on the child's welfare will be the crucial determinant.

4.3 ​Effect on Restitution of Conjugal Rights and Cruelty Claims

The decriminalization of adultery also has implications for petitions seeking restitution of conjugal rights and claims of cruelty.
· Restitution of Conjugal Rights: Section 9 of the Hindu Marriage Act (and similar provisions in other personal laws) allows a spouse to petition for the restitution of conjugal rights when the other spouse has withdrawn from the society of the petitioner without reasonable excuse. If the respondent has withdrawn due to the petitioner's adulterous conduct, this could be considered a "reasonable excuse" for their withdrawal. The decriminalization does not alter this principle; however, proving the petitioner's adultery will now rely solely on civil evidentiary standards.

· Cruelty Claims: Adultery can also form the basis of a claim of cruelty under matrimonial laws. The definition of cruelty is broad and includes mental cruelty, which can be caused by a spouse's infidelity. The emotional distress, humiliation, and breakdown of trust resulting from adultery can constitute mental cruelty, providing grounds for divorce under cruelty provisions (e.g., Section 13(1)(ia) of the Hindu Marriage Act). The decriminalization of adultery does not diminish its potential to constitute cruelty in matrimonial disputes. Courts will continue to assess the impact of adulterous conduct on the mental well-being of the aggrieved spouse. Cases like Shobha Rani v. Madhukar Reddi38 established that mental cruelty can encompass a wide range of conduct causing mental pain and suffering, which can certainly include the trauma of a spouse's infidelity.

V. FEMINIST AND SOCIAL PERSPECTIVES: RECLAIMING AGENCY AND REDEFINING MORALITY

The decriminalization of adultery in India was not merely a legal reform; it resonated deeply with feminist and broader social perspectives, challenging patriarchal norms and prompting a re-evaluation of societal morality in the context of constitutional values.
5.1 ​Women's Autonomy and the Fallacy of Ownershi

Feminist perspectives have long critiqued Section 497 IPC for its inherent subjugation of women. The law’s singular prosecution of men for adultery, while exempting women even as willing participants, was rooted in the archaic concept of the husband's ownership over his

wife's body and sexuality. This legal framework denied women their fundamental autonomy and agency in making decisions about their intimate relationships.39

The Joseph Shine judgment, by striking down this discriminatory provision, affirmed the principle of women's equal agency and their right to make choices regarding their own bodies and relationships. It dismantled the legal vestige of a patriarchal system that treated women as passive entities or the property of their husbands. The decriminalization recognizes that women are individuals with their own desires, choices, and the capacity to be responsible for their actions within a marital relationship.

Feminist legal scholars have argued that Section 497 perpetuated harmful stereotypes, reinforcing the idea that women were incapable of being initiators or active participants in sexual relationships outside marriage. By exempting them from criminal liability, the law inadvertently infantilized women and denied them the status of autonomous adults accountable for their conduct. The Joseph Shine verdict, therefore, represents a significant step towards recognizing women as equal partners in marriage, with the same rights and responsibilities as men in the realm of personal relationships.40

This aligns with broader feminist arguments advocating for bodily autonomy and the right of individuals to make decisions about their sexual lives without state interference, as long as these decisions are based on consent and do not infringe upon the rights of others. The decriminalization acknowledges that marital fidelity, while often a moral expectation, should not be enforced through the coercive power of criminal law, particularly in a manner that discriminates against one gender.41

5.2 ​Social Morality vs. Constitutional Morality

The debate surrounding the criminalization of adultery often pitted traditional social morality against the principles of constitutional morality. Proponents of Section 497 often invoked the need to preserve the sanctity of marriage and uphold societal values regarding fidelity. However, the Joseph Shine judgment firmly grounded its reasoning in the fundamental rights enshrined in the Constitution, asserting the primacy of constitutional morality over potentially discriminatory social norms.42

The Supreme Court recognized that while adultery might be considered morally reprehensible by some sections of society, criminalizing it in a gender-biased manner violated the core tenets of equality, dignity, and personal liberty guaranteed by the Constitution. The judgment underscored that the state's role is not to enforce a particular brand of social morality through criminal law, especially when it infringes upon fundamental rights and perpetuates discrimination.

Constitutional morality, as interpreted by the Supreme Court, emphasizes adherence to the foundational principles of the Constitution, including equality, non-discrimination, and individual autonomy. The Joseph Shine verdict demonstrated a commitment to these principles, even if it meant challenging deeply entrenched social norms. The court effectively stated that social morality, if discriminatory or violative of fundamental rights, must yield to the higher principles of constitutional morality.43

This approach aligns with a progressive understanding of the law as an instrument for social justice and the protection of individual freedoms, rather than a tool for enforcing potentially discriminatory social customs. The decriminalization of adultery signifies a move towards a legal framework that prioritizes individual rights and equality over a paternalistic enforcement of a specific moral code in the private sphere.

5.3 ​Impact on Social Institutions and Moral Policing

The striking down of Section 497 has had a discernible impact on social institutions and the phenomenon of moral policing. By removing the criminal sanction for adultery, the state has signalled a reduced role in directly policing the private sexual lives of consenting adults. This has potentially curbed the tendency of societal actors to invoke criminal law in matters of marital infidelity.44

Previously, the existence of a criminal provision provided a legal basis, however flawed, for moral policing by families or community groups who might seek to intervene in and control the relationships of their members. The decriminalization weakens this legal crutch for extra- legal interventions based on perceived moral transgressions.

However, it is important to acknowledge that social attitudes and moral policing do not change overnight with legal reforms. While the state has withdrawn the criminal sanction, societal stigma associated with adultery may persist. Nevertheless, the absence of a criminal law makes it more difficult for individuals or groups to justify coercive or violent actions in the name of upholding marital morality.45

The focus now shifts towards civil remedies for marital disputes, empowering individuals within the legal framework to address issues of infidelity through divorce proceedings, maintenance claims, and custody battles, rather than resorting to criminal complaints or extra- legal measures. This promotes a more rights-based and less punitive approach to dealing with marital discord.

VI. EMERGING ISSUES AND DEBATES

The decriminalization of adultery has also given rise to several emerging issues and ongoing debates that warrant further consideration:46

Should India introduce a gender-neutral civil adultery law?

One of the key debates following the Joseph Shine judgment is whether India should enact a gender-neutral civil law specifically addressing adultery. Proponents argue that such a law could provide a clearer framework for dealing with marital infidelity within civil proceedings, ensuring that both spouses are held to similar standards of fidelity. It could also potentially influence decisions regarding divorce and alimony in a more equitable manner, regardless of gender.

However, opponents argue that introducing a specific civil law on adultery might be unnecessary, as existing matrimonial laws already recognize adultery as a ground for divorce. They also raise concerns that such a law could still lead to intrusive investigations and perpetuate a fault-based approach to divorce, potentially hindering amicable settlements. The focus, they argue, should remain on the consequences of adultery in terms of the breakdown of marriage rather than on punishing the act itself through a separate civil offense.47

Role of mediation and counseling in marital disputes

With the decriminalization of adultery, there is a growing emphasis on alternative dispute resolution mechanisms like mediation and counselling in resolving marital disputes. Instead of immediately resorting to adversarial legal proceedings based on fault, mediation can provide a platform for spouses to communicate, understand each other's perspectives, and explore mutually agreeable solutions. Counselling can help couples address the underlying issues contributing to marital discord, including infidelity, and potentially facilitate reconciliation. The decriminalization encourages a shift towards a more conciliatory and less punitive approach to marital breakdown, where mediation and counselling can play a crucial role in facilitating amicable settlements and minimizing the emotional and financial costs of protracted litigation.48

Privacy vs. Surveillance in matrimonial investigations

The absence of criminal prosecution for adultery raises complex questions regarding privacy and surveillance in matrimonial investigations. While adultery remains a ground for divorce, the means of gathering evidence in civil cases can sometimes involve intrusive methods like private investigators, call data records analysis, and surveillance. Balancing the right to privacy of individuals with the need for legitimate evidence in matrimonial disputes is a significant challenge. Clear guidelines and legal safeguards may be necessary to prevent the misuse of surveillance technologies and protect the privacy of individuals involved in matrimonial proceedings. The courts will need to carefully scrutinize the admissibility of evidence obtained through potentially intrusive means, ensuring that the right to privacy is not unduly infringed upon in the pursuit of proving adultery as a civil wrong.49

VII. CONCLUSION

The decriminalization of adultery in India, catalysed by the Supreme Court's landmark judgment in Joseph Shine v. Union of India, marks a profound turning point in the nation's marital jurisprudence. The striking down of Section 497 IPC dismantled a colonial-era law steeped in patriarchal notions and gender discrimination, ushering in an era that prioritizes individual autonomy, dignity, and the constitutional principle of equality within the intimate sphere of marriage. The judgment recognized the fallacy of treating women as the property of their husbands, affirming their agency and right to make decisions about their own bodies and relationships. By prioritizing constitutional morality over potentially discriminatory social norms, the Supreme Court underscored the fundamental rights of individuals and the state's limited role in policing the private lives of consenting adults through criminal sanctions. While adultery is no longer a crime, its significance as a civil wrong, particularly as a ground for divorce under various personal laws, remains. Courts are now navigating the complexities of proving adultery within civil proceedings, relying on different evidentiary standards and considering its impact on maintenance, child custody, restitution of conjugal rights, and cruelty claims. The focus has shifted from punitive criminal measures to civil remedies that address the breakdown of the marital relationship. The decriminalization has also sparked crucial conversations about the need for a potential gender-neutral civil law on adultery, the increasing importance of mediation and counselling in resolving marital disputes, and the ethical considerations surrounding privacy in matrimonial investigations. These ongoing debates highlight the dynamic nature of legal reform and the continuous effort to align the law with evolving social values and constitutional principles. Ultimately, the decriminalization of adultery in India signifies a move towards a more mature and rights-based understanding of marital relationships. It acknowledges marriage as a union of equals, built on mutual respect and trust, where breaches of fidelity, while potentially grounds for civil recourse, should not invite the heavy hand of criminal law, especially in a discriminatory manner. This legal transformation encourages a reimagining of marital bonds, emphasizing individual responsibility and the availability of civil pathways to address marital discord, paving the way for a more equitable and just framework for marital jurisprudence in India.

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5 Constitution of India, Articles 14 and 21.

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10 The Indian Penal Code, 1860, Section 497.

11 Faulkner, C. (2019). Unfaithful: Love, Adultery, and Marriage Reform in Nineteenth-Century America. University of Pennsylvania Press.

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13 Yusuf Abdul Aziz v. The State of Bombay, 1954 AIR 321.

14 Constitution of India, Articles 14, 15, and 21.

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16 Constitution of India, Articles 14, 15, and 21.

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19 Mishra, P. (2023). Decriminalisation of Adultery. Issue 2 Indian JL & Legal Rsch., 5, 1.

20 Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.

21 Ibid.

22 Sowmithri Vishnu v. Union of India (1985 AIR 1618)

23 V. Revathi v. Union of India (1988 AIR 835)

24 Sowmithri Vishnu v. Union of India, (1985) Supp SCC 137. (The overruled judgment upholding the validity of Section 497).

25 V. Revathi v. Union of India, (1988) 2 SCC 72. (The overruled judgment reaffirming the validity of Section 497).

26 Rhode, D. L. (2015). Adultery: An agenda for legal reform. Stan. JCR & CL, 11, 179.

27 Jakhar, J. S., & Kumar, S. (2022). Adultery as a Ground for Divorce and Judicial Separation: A Study. Issue 6 Indian JL & Legal Rsch., 4, 1.

28 Joseph Shine v. Union of India, (2019) 3 SCC 39 – The landmark judgment that decriminalized adultery under Section 497 of the Indian Penal Code (IPC).

29 Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 – Emphasized the significance of marital fidelity and the impact of adultery on matrimonial bonds.

30 Hindu Marriage Act, 1955, Section 13(1)(i) (adultery as a ground for divorce).

31 Dissolution of Muslim Marriages Act, 1939 – Provides grounds for divorce for Muslim women, including cases of the husband’s adultery.

32 Indian Divorce Act, 1869 – Section 10 (adultery as a ground for divorce for Christians).

33 Parsi Marriage and Divorce Act, 1936 – Section 32 (adultery as a ground for divorce).

34 AIR 1975 SC 1534

35 K. Srinivas v. K. Sunita, (2014) 16 SCC 34 – Discussed the relevance of conduct in maintenance claims.

36 Section 125, Criminal Procedure Code (CrPC) – Denies maintenance to a wife if she is "living in adultery."

37 2009 (1) SCC 42

38 1988 AIR 121

39 Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims (Oxford University Press 2011) 112-115.

40 Martha Nussbaum, Sex and Social Justice (Oxford University Press 1999) 164-168 (arguing against state control of women’s sexuality).

41 Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989) 172-175 (critiquing patriarchal legal frameworks).

42 Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 210-215 (on constitutional morality overriding discriminatory customs).

43 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 ¶143 (equating constitutional morality with "individual dignity and autonomy")

44 Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 (condemning societal interference in marital choices).

45 Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxford University Press 2014) 89-93 (on societal policing of women’s sexuality).

46 Archana Parashar, Women and Family Law Reform in India (Sage 1992) 134-138 (debating equitable civil remedies for adultery).

47 Law Commission of India, Report No. 277: Wrongful Prosecution (2017) (recommending gender-neutrality in civil wrongs).

48 Marc Galanter and Jayanth Krishnan, "Bread for the Poor: Access to Justice and the Rights of the Needy in India" (2004) 55 Hastings Law Journal 789 (on ADR in marital disputes).

49 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (right to privacy as a fundamental right).

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