Criminalization of Adultery on a Gender-Neutral Basis

The story so far

The criminalization of adultery on a gender-neutral basis was recommended by the Parliamentary Standing Committee on Home Affairs last month after reviewing the three new criminal law Bills that will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act.

This comes after the Supreme Court’s five-judge Constitution Bench unanimously decriminalised adultery in 2018 for a number of reasons, including discrimination. The Committee argued that the institution of marriage should be protected, so they decided to criminalise adultery in a way that is gender-neutral.

Panel recommended

According to the Committee’s report, adultery should once again be considered a criminal offence, but it should be treated equally against men and women in terms of punishment.

• the Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.
• the report states, emphasising the need to preserve the institution of marriage.
• The Committee added that Section 497 of the IPC, which had been repealed, “only penalised the married man, and reduced the married woman to be her husband’s property.“

Legislative history

Being a key player in the initial stages of the IPC’s drafting, Lord Macaulay was not in favour of making adultery a crime because he thought financial compensation would be a more appropriate punishment. “We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent,” the author wrote, making the distinction between a moral wrong and an offence.

The Law Commission of India discussed the advantages of making adulterous behaviour illegal in its 42nd Report, published in 1971. “Even though a few of us personally felt that the section should be repealed, we believe that the time is not yet right to make such a drastic change in the current position,” the statement stated.

Anna Chandy, who voted to repeal the provision, notably expressed strong disagreement, stating that it was the “appropriate moment to examine whether the offence of adultery as defined by Section 497 is consistent with contemporary ideas of a woman’s place in a marriage.” Nonetheless, the Commission did suggest a significant change: eliminating the women’s liability exemption. Its 156th Report restated this recommendation while acknowledging the “transformation” society has experienced.

In its 2003 report, the Malimath Committee on Reforms of the Criminal Justice System suggested that adultery remain a crime but be classified according to a gender-neutral definition. Consequently, there’s no excuse for not treating a wife who engages in sexual relations with a man (apart from her husband) similarly.