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Re-Criminalizing Adultery

By Amigos IAS

Why is it in the news?

  • The Parliamentary Standing Committee on Home Affairs proposes amending the Bharatiya Nyaya Sanhita Bill, 2023, to criminalize adultery with a gender-neutral approach.

 

Adultery: It is the act of engaging in a sexual relationship with someone other than one’s spouse, violating the exclusivity of a marital relationship.

 

Background

  • In 2018, the Supreme Court, in Joseph Shine vs Union of India, struck down Section 497 of the IPC, which criminalized adultery, citing discrimination.
  • The court clarified that adultery would remain a civil wrong and a valid ground for divorce.

 

Arguments in Favor of Criminalization

  • Parliamentary Committee: Recommends reinstating adultery as a criminal offense to protect the institution of marriage.
  • Malimath Committee (2003): Proposed retaining adultery as an offense but on gender-neutral terms.

 

Arguments Against Criminalization

  • Moral Wrong: While adultery is a moral wrong, it may not constitute a wrong against society at large to be within the scope of criminal law.
  • Discrimination Towards Unmarried Couples: Gender-neutral laws may still differentiate between married and unmarried couples, creating legal distinctions.
  • Law Commission (1971): Some members raised concerns and were inclined to repeal Section 497.

 

Conclusion

  • The Supreme Court’s judgment found Section 497 violative of Articles 14, 15, and 21 of the Constitution, protecting the fundamental rights to equality, non-discrimination, and life.
  • The court emphasized that treating adultery as a crime would intrude significantly into the privacy of the matrimonial sphere, suggesting it is better left as a ground for divorce.

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