Are extra-marital affairs legal in India?

While speaking at a programme recently, I was startled by a statement made by one of the participants who said that the law itself has sanctioned extra-marital affairs. The person was obviously hinting at the recent Supreme Court judgment decriminalising adultery. The popular perception regarding the historic judgment was disturbing. It is unfortunate that the decision has been misunderstood grossly.

Law does not and cannot authorize extramarital relations. What needs to be understood here is that morality and legality are two different things. What the society considers as immoral is not necessarily punishable by the state. Adultery is a gender-neutral term and the act of adultery can be committed by both men as well as women. Even otherwise it takes two to tango, so why the liability should be fixed on only one.
The provision in question (Section 497) punished only the man as he was perceived as a predator and seducer whereas the woman was not punishable even as an abettor. Societal norms decree monogamous behaviour among married couples and indiscretions are censured. Proving adultery as a crime in a court of law is extremely difficult as that would need proof beyond reasonable doubt of the parties complained against having actually committed sexual intercourse. So this provision served only as a tool for harassment. Some men are unhappy with the judgment because with 497 gone, people fear that their bloodline may be susceptible to contamination. Concern here is regarding the impact on Section 112 of the Indian Evidence Act which declares birth during marriages to be conclusive proof of legitimacy.
The Apex Court in Sept 2018, declaring the provision criminalizing adultery vide section 497 of the IPC, 1860 as unconstitutional, held that the section was arbitrary in nature and violated the principles of gender equality enshrined under Articles 14 and 15(3). The provision declared a woman’s sexuality to be the absolute monopoly of her husband to the extent that if he wanted he could consent to or connive with some other man desirous of establishing sexual relations with his wife. The language of the section itself ran contrary to the avowed purpose of maintaining the sanctity of marriage as the husband could consent to his wife’s illicit relations.
In the judgment Justice Indu Malhotra wrote, “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure.” The court while striking down section 497 observed that the law was seemingly archaic in nature and based on certain societal presumptions. It was not nuanced enough to take into account what kind of marriage it was or why one partner cheated.
In such cases the woman was seen as a chattel lacking agency, one who had no mind of her own. She could be easily seduced and led, thus the entire liability was fixed on the male. On the other hand, the woman whose husband indulged in adulterous behavior had no remedy either against her husband or against the other woman who could be married, unmarried or widow. She could not prosecute her husband unless he married another woman, in which case she could prosecute him for bigamy under Section 494 of the IPC. Bigamy is a compoundable offence (one that can be settled with the permission of the court), so the woman could use it to get her husband back while the other woman who was cheated by the man could not even prosecute him for rape as she would not get the defence of consent. Her claim for maintenance would also not stand as such marriages are void in nature. But she can get that man punished under sections 493 and 495 of the IPC for concealing the fact of his earlier marriage and cohabiting with her by deceitfully inducing a belief of lawful marriage.
Society does not approve of live-in-relationships but such relations are not deemed to be illegal as long as they are in the nature of marriage i.e. both the parties are of a marriageable age and none of them has a living spouse. Law doesn’t permit adultery. It is a recognised ground of divorce and also amounts to mental cruelty. A private act between consenting adults cannot merit State intervention which is mandatory otherwise in cases where consent is not there. Social abhorrence for marital infidelity doesn’t put it in the category of crimes. Reason for adultery could be love or lust; sometimes it could be on an impulse or just for thrills. Married couples have their own equations. They may choose to overlook some indiscretions for the sake of their relationship, family, and the institution of marriage or for reasons best known to them. Fear of punishment cannot save marriages. In fact, compelling people to continue in loveless unions violates their fundamental freedoms. Infidelity is fascinating, but it comes with hefty price- guilt of betrayal, rebuke by conscience, heartache, destruction of relationships and inner peace. To put it in plain words, to each his own.

To decode the judgment, the court has only decriminalised adultery. The Britishers saddled us with this colonial relic while enacting the Indian Penal Code in 1860 whereas they themselves had discarded adultery as a criminal offence in the year 1857 itself. Majority of the countries worldwide treat adultery only as ground for civil issues including divorce and it continues to be so in India too.

– By Dr. Vageshwari Deswal

Dr. Vageshwari Deswal is Prof. of Law at Faculty of Law, University of Delhi. She specializes in Criminal Law and Gender Jurisprudence.

Source: indiatimes.com