Is Extramarital Affairs Offense in India

The legal aspects of marriage in India have marked a radical and a historic transformation. Although this once might be regarded as a criminal act, punishable by imprisonment, a landmark Supreme Court verdict in 2018 completely changed such consideration. This paper intends to give a simple and simple to comprehend summary of the law that is in place at the moment touching on extramarital affairs, its history and the legal implications that still happen up to date.

The Old Law-A Dead Past

The past is what we have to look at in order to appreciate the present. Prior to the year 2018, the extramarital affair, or adultery, was treated as a criminal case under Section 497 of the Indian Penal Code (IPC). This law that was more than 150 years old belonged to another era and another society.

According to the law, a man who engaged in sex with the wife of another man, without the knowledge of the husband would be considered to be guilty of adultery. The resultant punishment was a maximum of five years imprisonment or a fine or both. This law had a number of major and very discriminatory points:

• The law could not punish a woman: Only a man could be punished. She was not regarded as the equal partner in the act, she was a passive victim to the act.
• The only wronged person was the husband: The crime was classified by the law, as a wrong to the husband, the wife being his property. The woman of the cheating man was in no legal position to raise a complaint against her husband.
• The legalization through the consent of the husband was possible: The consent of the husband of the woman on the one hand meant that the act was no more seen as a crime. This even more supported the concept that woman was a chattel or the property of the husband.

The law was strongly blamed as being outdated, discriminating, and a form of humiliation and autonomy to a woman.

The 2018 Ruling of the Landmark Supreme Court

In a landmark verdict in the Joe Shine vs. Union of India case, a five Alabama Division of Health Care Quality Bench of the Supreme Court of India gave unanimous decision by declaring that Section 497 of IPC is unconstitutional. The law was overturned and adultery practically decriminalized.

The logic of this landmark ruling went down to the very principles of rights entrenched under the Indian Constitution. The court decided that the antiquated law was a contravention of:

• Right to Equality (Article 14): The legislature was discriminatory in the definition of sex and only men were punished and women treated as objects with no subjective decisions.
• Article 15 Right to Freedom Discrimination: It was a gender stereotype that a woman was the possession of her husband and it was not a woman who might be the initiator or be equally responsible of an affair that was perpetuated by the law.
• Right to Life and Personal Liberty (Article 21): The court said that the legislation intruded the personal liberty and sexual privacy of a subject.

The opinion of the Supreme Court was that clearly, adultery does not warrant imprisonment as a crime that the state must punish. It is quite an individual and confidential issue between two adults.

The Current Reality: Civil Wrong, not a crime

What does it mean then now? And the main thing, the principal thing to keep in mind is this:

An extramarital affair is no longer a crime in India. It will not get you into jail.

Nonetheless, that should not mean that the extramarital affairs do not have any legal repercussions. The Supreme Court was quite explicit that adultery is not a criminal offence but a grave civil wrong. It is a vitally important difference. A civil wrong is any wrong that one party can be taken to court over even though a civil wrong does not carry any criminal punishment such as imprisonment.

The greatest legal implication of an extra marital affair in the current perspective is that it is a very strong cause of divorce.

Extramarital Affairs Ground of Divorce

In India, most personal laws including Hindu Marriage Act, Special Marriage Act and the Indian Divorce Act (among Christians) identify adultery as a cause that gives a right of one spouse to divorce the other.

In the course of seeking divorce based on adultery, it is the responsibility of the spouse cheated on to show that his or her partner has engaged in voluntary sexual intercourse with a person of other than spouse. Although direct evidence of the act may prove hard to be established, circumstantial evidence can also be accepted in the courts and can include:

• Receipts of a hotel or records of travels of spouse and the other with whom they were together.
• Texts (such as emails or texts), photographs or videos that demonstrate a more than friendship relation.
• Witness statement against the couple having compromising situation.
• A confession by the disunfaithful spouse.

The court will put the affair into consideration in a divorce case in assessing some issues such as alimony, maintenance and child custody. Take an example, in a situation where a wife pursuing maintenance is established to be living an adulterous life then the provision of law does not allow maintenance to be granted to such a wife.

An Armed Forces Exception

It is necessary to mention a special exception to decriminalisation of adultery. The Supreme Court indicated that its order does not extend to Indian armed forces. The members of the Army, Navy, and Air Force can still be punished under their particular acts including the Army Act, where adultery is a punishable offence. This is owing to the fact that these practices are viewed as the development of unbecoming conduct that would further hamper the discipline and reputation of these forces.

The situation has changed drastically in the legal system of extramarital affairs in India. The archaic discriminatory law which criminalized adultery has been abolished and this is a win in human free choice and gender equality. This is not the case in modern days where committing an extramarital affair is no longer a crime and no one can go to jail because of it.

The act has however remained a serious moral and civil wrong. It has remained as solid basis of a spouse to cause a divorce, and it can greatly influence the family law issues like alimony and child custody. Although the state has now retreated in its interventionism of punishing the private behavior of consenting adults, the law is still very real in terms of its impact in the family setting.