A recent Rajasthan High Court verdict says having consensual physical relations outside marriage is not an offence. But hold on, it still is cheating on your spouse
By Vikram L Kilpady
The Rajasthan High Court’s recent ruling on adultery has rekindled the row surrounding the topic and sex outside marriage. Justice Birendra Kumar held that consensual physical relations between adults outside marriage was not an offence. While delivering his verdict, the judge cited a Supreme Court ruling that said constitutional morality overrides societal norms.
In the present case, a man had sought the recall of an order quashing an FIR under Section 366 IPC. He had approached the Court through a petition since he had been in jail and was not able to contest the case. The man had filed a case against three others—a man and his two sons—for abducting his wife under Section 366 IPC. The Section deals with taking a woman hostage or kidnapping her with one of the following intentions—to force her to marry someone against her will, or to force or entice her into illegal sexual activity, or with knowledge that she may be coerced or persuaded into unlawful sexual activity.
The Court noted that the woman concerned in the case said she was not abducted, but was in a live-in relationship with one of the accused persons—one of the sons. The judge then fell back on cases where constitutional morality in matters of personal liberty and privacy were weighted above societal norms in precedents such as Navtej Singh Johar vs Union of India and Safi Jahan vs Asokan KM. Justice Birendra Kumar referenced the Supreme Court’s decision in S Khushboo vs Kanniammal & Ors., wherein it was held that engaging in consensual relationships outside the marital setting does not constitute a statutory offence barring adultery. This is even when society lays down norms for certain behaviours.
For a layman, the sum of the Court’s observation may sound like it was saying anything goes in a marriage. But that is missing the wood for trees. The Court is clearly not saying adultery is ok, all it is saying is it won’t be an offence. But such casual misinterpretation of a judgment in a deeply conservative country like India is, of course, fuel for more marriages breaking down and, worse, getting some people killed. Especially now, when employment scenarios have changed for the worse, and people have moved cities and towns in pursuit of work.
This is real life India and not some American sitcom like Modern Family, where children from multiple marriages live under the benevolent gaze of the patriarch. Nor is all of India ready for a situation as portrayed in the Malayalam film Kumbalangi Nights, in which children of multiple fathers, but with their mother in common, live together in a decrepit home. Nor is such a practice uniform all over Kerala either. This is not to say people should be allowed to stray outside their marriages. Liberty, after all, is the bomb-proof umbrella for such behaviour. All is hunky dory until the other partner finds out, then it is a round of lawyers and family courts for the marriage to be annulled.
Further, the idea of one’s modernity need not be measured by how much one has strayed outside one’s marriage. Libertarian readers may baulk and wonder what’s all this talk in the age of much-flaunted individual liberty. Relations by marriage are usually consecrated via religion. For Hindus, a marriage is allegedly for seven rebirths, and a Hindu couple’s divorce is by statute. Islam provides for divorce and separation without the rancour and sees marriage as a contract, while secular law introduced it by statute in Western Christian countries.
Section 497 of the Indian Penal Code, dealing with adultery, in which the man responsible was punished, sparing the woman any punishment as an abettor, was repealed by the Joseph Shine verdict in 2018. The bench of then Chief Justice of India Dipak Misra, and comprising Justices AM Khanwilkar, Rohinton Nariman, Indu Malhotra and incumbent CJI DY Chandrachud, had struck Section 497 down in a unanimous decision. The bench held that the Section was against the right to equality, non-discrimination and life, respectively, that is, Articles 14, 15 and 21.
In his order for himself and Justice Khanwilkar, now the Lokpal, Justice Misra highlighted women’s autonomy. He said the husband was neither master of his wife nor did he have legal sovereignty over her. The Court said adultery should be left as a ground for divorce and should not be labelled a crime since it doesn’t conceptually fit as a crime. If it was treated as a crime, it would end up making extraordinary intrusion into the privacy of the matrimonial sphere, Justice Misra said.
Foreseeing a situation when Parliament passes a law to reclassify adultery as a crime, the order cautioned that it will still offend Article 21’s two facets—the dignity of the spouses and the privacy to the relationship between the two. The lone woman judge on the bench, Justice Indu Malhotra, noted the anomalies in Section 497. If a married woman enters an adulterous relationship with her husband’s consent, would she be an offender, the judge wondered. Further, a woman could not prosecute her husband or his lover, even if they committed adultery. This assumes greater significance for latent homosexuals, who are already married to get by the homophobia in society. Justice Nariman said ancient notions of the male being the seducer and the woman being the victim did not apply any longer. Justice Chandrachud dismissed Section 497 as a relic of Victorian morality and said the wife is not just the chattel or property of the husband.
The Court had also struck down Section 198(2) of the Code of Criminal Procedure to the extent that it applies to the offence of adultery under Section 497. Section 198(2) CrPC was again loaded in favour of men, with only the husband having the right to invoke the courts to take cognizance of a case of adultery against the wife.
As anticipated by Justice Misra in 2018, the Parliamentary Committee of Home Affairs in 2023 suggested adultery be reinstituted as a crime in the Bharatiya Nyay Sanhita 2023, which replaced the IPC 1860. The Committee, led by BJP Rajya Sabha MP Brij Lal, said Section 497 only penalised the married man, and reduced the married woman to the property of her husband.
With the Committee holding that marriage is sacred in Indian society and its sanctity should be safeguarded, it argued for making the section gender-neutral to overcome its lacunae vis-a-vis Article 15. This would make both the man and the woman equally liable for the crime. Despite the recommendation, adultery was not reinstated as a crime under the Bharatiya Nyay Sanhita.
It is a coincidence that while striking down Section 497, the apex court noted the law’s blindness to gender equality in a marriage, but did not go the whole hog in its verdict in the case for legal recognition of same sex marriages. There it played safe with the centre’s marriage is sacred argument, even when talking of rights of same sex couples.
With regard to Section 497, there is an exception the Court came up with five years later. In January 2023, the Supreme Court said the Joseph Shine judgment doesn’t apply to the armed forces. The Constitution bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar said officers can be proceeded against for an adulterous relationship with wives of fellow officers as per the Army Act, the Air Force Act or the Navy Act. The exemption was granted after the Union defence ministry moved the Court against the striking down of adultery laws. The centre said military personnel operating away from their families have concerns about family members indulging in unbecoming acts.
The Rajasthan High Court verdict is a liberal interpretation of the recent liberty draft, but saying it is not an offence doesn’t make it a go-ahead for licentious behaviour.