Re-criminalizing Adultery as a Gender-neutral Offence

Why in news:

The Parliament Standing Committee on Home Affairs has suggested that the proposed Bharatiya Nyaya Sanhita Bill, 2023 be amended to make adultery a criminal offence again— but on gender-neutral terms.


  • Parliamentary Standing Committee, examining the three new criminal law Bills have recommended to reintroduce adultery as a crime in a gender neutral manner.

Recommendation of the committee:

  • The committee suggests making adultery a gender-neutral offense, holding both men and women equally culpable under the law.
  • The committee emphasized the sanctity of the institution of marriage in Indian society.
  • The aim is to rectify the previous law (Section 497 of the IPC) which only penalized married men, treating married women as the property of their husbands.
  • However, former Home Minister P. Chidambaram, in his dissent note, stressed the importance of avoiding state interference in the private lives of consenting adults.
  • He rejects the idea of elevating marriage to the level of a sacrament and questions the state’s role in punishing alleged wrongdoers in private matters.

History of offence of adultery:

  • Lord Macaulay, involved in the drafting of Criminal Procedure Code (CrPC), was not inclined to make adultery a penal offense, given the sacramental nature of marriage.
  • Court Commissioners reviewing the Penal Code proposed making adultery an offense but initially held only the male offender liable, considering “the condition of women in this country” and the law’s duty to protect it.

Law Commission’s Deliberation in 1971:

  • In 1971, the Law Commission deliberated on criminalizing adulterous conduct but didn’t recommend repeal.
  • There was a strong dissent by Anna Chandy, advocating for a reconsideration of the offense in light of contemporary notions of women’s status within marriage.
  • The Commission recommended removing the exemption from liability for women.
  • However these proposals were not reflected in either the 41st Report (which led to the Cr.P.C.) or the 154th Report which reviewed the Cr.P.C.

Gender-Neutral Proposal by Malimath Committee (2003):

  • In 2003, the Malimath Committee proposed retaining adultery as an offense but on gender-neutral terms.
  • The committee emphasized preserving the sanctity of marriage and suggested that both husbands and wives be treated similarly in cases of marital infidelity.

Adultery as an unconstitutional offence:

A five-judge Constitution Bench, led by then CJI Dipak Misra, decriminalized adultery in its landmark judgment in Joseph Shine v. Union of India (2018). The bench highlighted following reasons:

Privacy and Autonomy:

  • The judgment emphasized that adultery is a matter of privacy and treating it as a crime would intrude into the extreme privacy of the matrimonial sphere.
  • The ability to make sexual choices is considered essential to human liberty, and criminalization would infringe on individual autonomy.

Gender Stereotypes and Equality:

  • Justices highlighted that Section 497 made the husband the ‘licensor’ of his wife’s sexual choices, perpetuating gender stereotypes.
  • Criminalization subjugated women and disregarded their sexuality, contributing to an unequal legal framework.

Role of Marriage in Criminal Law:

  • The judgment questioned the over-importance given to marriage in criminal law, suggesting that personal choices within marriage should be protected.

Post-Judgment Developments and view of experts criticizing the reintroduction of adultery as an offence:

  • In 2020, a five-judge Bench dismissed review petitions seeking a reconsideration of the 2018 verdict, asserting the lack of merit.
  • Lawyers and advocates argue against criminalizing adultery, emphasizing that personal choices and privacy should be protected by the law.
  • Criminalization is seen as undue interference by the state into the private lives of individuals.
  • Critics point out a perceived contradiction in the recent recommendation, suggesting that curtailing the right to sex to protect the sanctity of marriage may be inconsistent.
  • While making adultery gender-neutral removes the aspect of treating women as property, it may not address the broader issue of criminalizing relationships recognized as marriages.
  • Concerns are raised about the potential impact of a gender-neutral provision on relationships, including those within the LGBTQ community, depending on the recognition of such relationships as marriages.

Do legislature has the authority to overrule the judgement of Supreme Court:

  • While a Supreme Court ruling establishes a precedent, the Parliament has the authority to overrule judicial pronouncements through legislative action.
  • For such legislative action to be considered valid, it must alter the legal basis of the judgment.
  • The Supreme Court, in the Madras Bar Association v. Union of India (2021) case, outlined a test for validating legislation.
  • The test considers whether the defect pointed out in the judgment would have existed if the altered position brought in by the validating statute had been present when the court rendered its judgment.
  • Legislative action is permitted to remove defects in earlier legislation as pointed out by a constitutional court.
  • The court emphasized that the legislature can pass laws both prospectively and retrospectively to address and correct identified defects.
  • The Supreme Court, in NHPC Ltd. v. State of Himachal Pradesh Secretary (September 2021), cautioned that if the legislature seeks to validate acts under previous legislation without curing the defects, the subsequent legislation would be ultra vires (beyond legal authority).

Subject: Polity

Topic: Legal issues

Issues: Reintroduction of adultery as an offence

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