Extra-marital affairs, though often stigmatized socially and morally, have been a topic of legal discourse in India for years. The legal framework surrounding extra-marital relationships underwent a significant change with a landmark Supreme Court judgment in 2018. This article explores the current legal position on extra-marital affairs in India, its historical context, and its broader implications.
Understanding Extra-Marital Affairs in India
An extra-marital affair refers to a relationship outside marriage where one or both individuals are legally married to someone else. While such relationships are often frowned upon in Indian society, the question of their legality has evolved over time.
Historical Context: Section 497 of the Indian Penal Code
Before 2018, extra-marital affairs were criminalized under Section 497 of the Indian Penal Code (IPC). This law, introduced during British colonial rule, treated adultery as a criminal offense with the following key provisions:
- Definition: Adultery was defined as a consensual sexual relationship between a married woman and a man who was not her husband, without the husband’s consent.
- Punishment: The man involved in the affair could face imprisonment of up to five years or a fine, or both.
- Gender Bias: The law did not allow a wife to prosecute her adulterous husband, treating women as the property of their husbands rather than as individuals with equal rights.
This law was criticized for being archaic, patriarchal, and discriminatory, as it penalized only the man involved while treating the woman as a victim without agency.
The Landmark Judgment: Joseph Shine v. Union of India (2018)
In the Joseph Shine v. Union of India case, the Supreme Court of India struck down Section 497 IPC as unconstitutional. The judgment marked a progressive step toward gender equality and individual liberty.
Key Highlights of the Judgment:
- Decriminalization of Adultery: The court declared that extra-marital affairs are no longer a criminal offense in India.
- Equality and Autonomy: The judgment emphasized that treating women as property and denying them agency was a violation of fundamental rights under Articles 14 (Right to Equality) and 21 (Right to Life and Personal Liberty) of the Constitution.
- Marriage as an Institution: While decriminalizing adultery, the court stated that it could still be a ground for civil remedies, such as divorce, and affirmed that marriage is built on trust and fidelity.
Current Legal Status of Extra-Marital Affairs
1. Not a Criminal Offense
As per the 2018 judgment, extra-marital affairs are no longer punishable under criminal law. Individuals engaging in such relationships cannot be arrested, fined, or prosecuted solely on the basis of their affair.
2. Ground for Divorce
While not a crime, an extra-marital affair is considered a valid ground for seeking divorce under various personal laws in India:
- Hindu Marriage Act, 1955
- Special Marriage Act, 1954
- Indian Divorce Act, 1869
- Muslim Personal Law (interpreted under Sharia principles)
The aggrieved spouse can file for divorce citing “adultery” as a cause, arguing that it violates the sanctity of marriage.
Implications of the Decriminalization
Positive Impacts:
- Gender Equality: The removal of Section 497 eliminated a law that perpetuated gender discrimination and treated women as subservient to their husbands.
- Focus on Personal Liberty: The judgment affirmed that consensual relationships between adults are private matters, falling within the realm of individual freedom.
- Modernization of Laws: It signified a shift from outdated colonial laws to a legal framework that aligns with contemporary values.
Challenges and Concerns:
- Social Stigma: Despite decriminalization, extra-marital affairs continue to face significant societal disapproval in India, rooted in cultural and moral values.
- Impact on Families: Affairs often lead to marital discord, emotional distress, and disruptions in family dynamics, particularly affecting children.
- Misuse Allegations: Some critics argue that the absence of criminal penalties could lead to a rise in infidelity or misuse in matrimonial disputes.
Extra-Marital Affairs and Civil Laws
1. Custody and Maintenance:
In divorce cases involving extra-marital affairs, courts evaluate factors like the well-being of children and financial dependency while deciding issues of custody and alimony. An affair does not necessarily bar a parent from gaining custody, as the child’s welfare remains paramount.
2. Workplace Implications:
Extra-marital relationships involving colleagues or subordinates can raise ethical and professional concerns, particularly under sexual harassment laws or company policies. Such cases are assessed individually based on the circumstances.
Comparative Perspective: Adultery Laws in Other Countries
- United States: Adultery is not a criminal offense in most states but can influence divorce settlements and custody battles.
- France: Extra-marital affairs are largely considered private matters and not criminalized.
- Saudi Arabia: Adultery is a serious criminal offense under Sharia law, punishable by severe penalties.
- Philippines: Adultery remains a criminal offense for women but is less strictly applied to men, reflecting gender-based disparities.
India’s progressive step in decriminalizing extra-marital affairs aligns with global trends in modern democracies emphasizing personal liberty.
The Way Forward
While the decriminalization of extra-marital affairs is a significant step toward modernizing India’s legal system, the debate around its social and moral acceptability persists. The focus should shift to fostering healthier marital relationships and addressing issues like communication gaps, emotional neglect, and incompatibility.
Recommendations:
- Counseling Services: Couples facing marital challenges should have access to professional counseling to address issues before they escalate into infidelity.
- Legal Awareness: Individuals should be informed about their rights and the legal implications of extra-marital relationships.
- Strengthening Family Laws: India’s family laws should be updated to provide comprehensive remedies for individuals affected by extra-marital affairs.
Conclusion
Extra-marital affairs in India are no longer a criminal offense following the Supreme Court’s 2018 judgment. While this decriminalization aligns with the principles of personal liberty and gender equality, extra-marital relationships remain a valid ground for divorce and a contentious issue socially and morally. As India modernizes its legal framework, it is essential to strike a balance between individual rights and the sanctity of marriage, fostering a society where personal freedom coexists with respect for relationships.