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Adultery: Meaning and Legality
Marriage has been granted a revered and devout status among all religions and all nations. Therefore, if either spouse engages in adultery, they are not only breaching their pledges to one another but also jeopardizing the marriage's integrity. The earlier adultery offense found the offender guilty and declared the married lady to be the helpless victim of adultery, absolving her of any "criminal responsibility." Additionally, it was asserted that the adulterous man had been unfaithful to the married man and was exclusively responsible for any sexual relations. However, the apex court abolished the crime of adultery because it violates women's fundamental rights and views them as the husband's personal property after Keralite Joseph Shine, a non-resident, filed public interest litigation under Article 32 of the Indian Constitution challenging the constitutionality of the offense.
The goal of this article is to legally inform the spouse about the legal remedies that are available to him or her and the existence of legal procedures in India that could be taken against his or her spouse if they commit the offense of adultery, even though the act of adultery is no longer a criminal offense but is still a basis for divorce in both Hindu and Muslim personal law. In the event that the couple decides to file for divorce and end their marriage, it discusses the legal process to be followed, the definition of adultery, the gathering of evidence against the spouse, the hiring of an attorney, and presenting the case before the court.
What is Adultery?
The Latin word "Adulterium," from which the English word "adultery" is derived, refers to extramarital sex, which is prohibited under social, religious, moral, and/or legal norms. Adultery was defined by Merriam-Webster as "voluntary sexual activity between a married person and a person who is not the person's current spouse or partner."
The act of adultery is punishable under Section 497 of the Indian Penal Code of 1860, which stipulates that “anyone who engages in sexual activity with a married woman without the lady's spouse's knowledge or agreement commits adultery. Adultery is a crime that carries a maximum five-year prison sentence, a fine, or both.”
For instance, if Samar and Naina are married couple, but Naina has an affair with Kuljeet, Samar can file charges against Kuljeet, but Naina won't be held accountable for this crime.
In simple terms, Adultery is widely understood to be the practice of a married individual engaging in consensual sexual activity with a person other than their legal spouse. As a result, adultery is a subset of fornication, which is defined as consent sexual activity between unmarried people. Adultery is frequently compared to infidelity, being unfaithful, or, in common speech, "cheating." However, in the case of Joseph Shine V/S Union of India (2017), the Supreme Court Struck Down this provision (section 497 of IPC).
Parliamentary Intent on Adultery
Adultery is a crime because it has been previously punished. However, the legislative aim that led to the creation of Section 497 of the IPC is very different from what the critics see. In 1847, the Law Commission of India was tasked with revising the Penal Code. When the penal code was revised, the commission limited the liability for adultery to men alone. This was done in consideration of the status of women at the time, and it was mandated that the law serve to protect women's interests.
Historical Background
The seventh commandment of the Hammurabi code included adultery, which is where the legal definition of adultery first appeared. Extramarital affairs are regarded as adultery and are prohibited for social, moral, religious, and legal reasons. Henry VIII of England used it as a means of evicting his wife, Catherine Howard. In contrast to how it is now, it was used more frequently in the past because it only pertained to adultery committed by a man, married or not, with a married woman as well as between a married man and an unmarried woman.
The burden of proof for adultery was the recognition of marriage as a sacred institution and the severity of the consequences for its violation. Adultery has historically been viewed as a major offense in many cultures, and as such, it has even resulted in harsh punishments like the death penalty, mutilation, torture, etc.
Conclusion
In both Hindu and Muslim law, adultery is now a legal basis for divorce rather than a criminal offense. The law allows for the dissolution of a marriage if one spouse decides it is too difficult to cohabitate with the other and decides to do so on the grounds that the other committed adultery and was no longer faithful to them. The party accusing the other party of adulterous conduct, however, has the burden of proof; therefore, in order to dissolve the marriage, he or she needs to gather the necessary evidence to establish the adultery before the court.
Frequently Asked Questions
Q1. Can you take legal action against a cheating wife?
Ans. Before the Family court, a divorce petition may be submitted on the basis of "cheating."
Q2. Is adultery allowed in India?
Ans. Although adultery is no longer seen as a felony, it is nevertheless regarded as a good reason for divorce.
Q3. What is the punishment for adultery?
Ans. Since adultery is not currently a crime, it is not still penalized. However, adultery was a crime that might result in five years in jail, a fine, or both.
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