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Parliamentary Committee’s Recommendation on Adultery


The Parliamentary Committee on Home Affairs has suggested that adultery should be re-instituted as a crime in the Bharatiya Nyaya Sanhita (BNS), 2023.


GS II: Polity and Governance

Dimensions of the Article:

  1. Legal Position on Adultery: Before and After 2018
  2. House Committee Recommendations on Adultery and Legal Implications

Legal Position on Adultery: Before and After 2018

Before SC Judgement of 2018:
  • Adultery as a Criminal Offence: Section 497 of IPC considered adultery a criminal offense before 2018, with penalties of up to five years in prison, a fine, or both.
  • Gender-Specific Punishment: Only men could be prosecuted under Section 497; women were exempt from punishment as abettors.
  • Contradiction to Common Understanding: This contradicted common understanding and dictionary definitions of adultery, which include both men and women engaging in voluntary sexual intercourse outside marriage.
SC Judgement of 2018: Joseph Shine vs Union Of India (September 2018)

Key Takeaways:

  • Discrimination in Section 497: The Supreme Court unanimously struck down Section 497, citing its discriminatory nature, violating Articles 14, 15, and 21 of the Constitution.
  • Autonomy of Women: The court emphasized women’s autonomy, stating that a husband is not the master of his wife, challenging the legal sovereignty over her.
  • Adultery as a Non-Crime: Treating adultery as a crime would intrude into extreme privacy within the marital sphere, conflicting with Article 21’s facets of dignity and privacy.
  • Anomalies in Section 497: The court highlighted anomalies in Section 497, where adultery was not an offense if the married woman had her husband’s consent. Additionally, a wife could not prosecute her husband or his lover for adultery.

House Committee Recommendations on Adultery and Legal Implications

Recommendations of the House Committee:
  • Reinstating Adultery as a Criminal Offense: The Committee, in its report on the BNS 2023, recommended reinstating adultery as a criminal offense.
  • Gender-Neutral Approach: The report proposed making adultery a gender-neutral offense, advocating for the punishment of both men and women.
  • Critique of Section 497: The Committee criticized Section 497 of the IPC, asserting that it only penalized married men, reducing married women to the status of property owned by their husbands.
  • Preserving the Sanctity of Marriage: The Committee emphasized the sacred nature of the institution of marriage in Indian society, stating a need to safeguard its sanctity.
Legal Implications and Possibility of Supreme Court’s Decision Being Undone:
  • Limitations on Parliament: The report acknowledged that a ruling of the Supreme Court is the law of the land, and Parliament cannot directly contradict it with a new law.
  • Retrospective and Prospective Legislation: While Parliament cannot directly override a Supreme Court decision, it can pass a law that addresses the basis of the court’s judgment. Such a law can be both retrospective and prospective.
  • Precedent in Madras Bar Association vs. Union of India (2021): The Committee cited the Madras Bar Association vs. Union of India case in 2021, where the Supreme Court held that a law fixing a problem is valid if it would have resulted in the same decision had the corrected situation existed when the judgment was made.
  • Addressing the Basis of Court’s Decision: In essence, if a new law fixes the issue raised in court, the basis of the court’s decision may no longer be valid, providing a legal avenue for change.

-Source: The Hindu

December 2023