Context: Last month, the Parliamentary Standing Committee on Home Affairs, recommended the criminalisation of adultery on gender-neutral lines. In 2018, a five-judge Constitution Bench of the Supreme Court unanimously decriminalized adultery on several grounds including discrimination.

What panel recommends the re-criminalise adultery?

• A Crime: The Committee suggested that adultery be reinstated as a criminal offense, but be made gender-neutral, thereby making both men and women equally culpable under the law. 
• Gender- Neutral: Earlier, the revoked Section 497 of the IPC “only penalized the married man, and reduced the married woman to be a property of her husband.”

Read more about the Parliamentary Committee’s Recommendation on Adultery here. 

What is the legislative history of adultery?

• Not an Offense: Lord Macaulay, instrumental in the early drafting process of the IPC, was not in favor of making adultery a penal offense and believed that remedy in pecuniary compensation. 
• Review of the Penal Code by the Court Commissioners: For them, it was important to make adultery an offense. The proposed section rendered only the male offender liable, keeping in mind “the condition of the women in this country” and the law’s duty to protect it.
• The 42nd Report of the Law Commission: In 1971, the Law Commission of India in its 42nd Report deliberated on the benefits of criminalizing adulterous conduct. 
  • The Commission, however, recommended for removal of the exemption from liability for women. 
• The 156th Report of the Law Commission: The above recommendation was reiterated, taking into account the ‘transformation’ society has undergone.
• The Committee on Reforms of the Criminal Justice System: In 2003, this Committee (also known as the Malimath Committee) proposed that adultery be retained as an offence but on gender-neutral terms. 

Repealing of the Earlier Law:

• Joseph Shine versus Union of India (2018) Case: A five-judge Constitution Bench of the Supreme Court held that adultery is not a crime and struck it off the IPC. It, however, clarified that adultery would continue to remain a civil wrong and a valid ground for divorce.
  • Missing Point: As per senior Advocate Gopal Sankaranarayanan, the problem with adultery is criminalizing it on the basis of the institution of marriage and treating women as property. 
    • Making the law gender neutral would do away with the women as property issue, while missing out on criminalization.

What are the arguments supporting the criminalization of adultery?

• Preserves the sanctity of marriage and deters people from having extra-marital affairs.
• Protects rights of married couples by allowing legal consequences for adulterous spouses.
• Upholds traditional Indian values around fidelity and monogamy within a marriage. 
• Safeguards the interests of children and families affected by adulterous relationships. 
• Aligns with religious beliefs against adultery in Hinduism, Islam and other faiths.

What are the arguments in favour of re-criminalising adultery?

• Against Privacy and a Violation of Liberty: Adultery is “absolutely a matter of privacy at its pinnacle,”. If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
  • It violates the personal liberty of citizens – consenting adults should have the right to choose sexual partners.
  • Contradicts principles in the Constitution around individual rights and privacy.
  • Against the concept of limited government interference in private matters.
• Possibility of misusing Law: As it would be difficult to gather evidence, misuse of harassment, extortion, etc.
• Gender Biasness: Primarily men have extra-marital affairs while women victims – gender biased.
  • Adultery laws unevenly applied and used disproportionately against men.
• Not an account for Breakdown of Marriage over time: Hence, it serves no purpose to criminalize after separation.
  • Civil legal remedies like divorce available for spouses aggrieved by adultery. No need for criminalization.

Conclusion:

The debate over re-criminalise adultery in a gender-neutral manner reflects a complex balance between societal values, individual rights, and the evolving understanding of marriage, necessitating a thoughtful examination of legal implications and personal liberties.