Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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KEY TAKE AWAYS

  • A sexual relationship between a married spouse and another who he/she is not legally married to is known as an extramarital affair also called as adulteration.
  • Section 497 IPC and Section198 CrPC had delt with the criminalisation of extramarital affairs.
  • Under the case of Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676, a five-judge constitutional bench, unanimously held that section 497 IPC and Section198 CrPC is unconstitutional and hence stuck down the provision.
  • Black’s Law Dictionary states that ‘mental cruelty’ may be a course of conduct on a part of one spouse towards the opposite spouse which may endanger the mental and physical health and efficiency of the opposite spouse to such an extent on render the continuance of the marital relation intolerable.
  • Extramarital Affairs can without a doubt cause mental cruelty.
  • I believe that if cruelty is a crime, then adultery too should be a crime as adultery is a form of cruelty in a marriage.

INTRODUCTION

A sexual relationship between a married spouse and another who he/she is not legally married to is known as an extramarital affair also called as adulteration.

Is it a crime

Section 497 under the Indian Penal Code had said that whoever has sexual activity with an individual who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual activity not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which can reach five years, or with fine, or with both. However, in this scenario the wife shall not be punishable as an abettor.

This offence is extremely limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a person who had sexual activity with the wife of another man without the latter’s consent or connivance. The wife isn't punishable for being an adulteress, or maybe as an abettor of the offence.

Section 198 under the Criminal Procedure Codedeals with a “person aggrieved”.

Sub-section (2) treats the husband of the lady as deemed to be aggrieved by an offence committed under Section 497 IPC and within the absence of husband, some one that had care of the lady on his behalf at the time when such offence was committed, with the permission of the court. It doesn't consider the wife of the adulterer as an aggrieved person.

Hence, according to these sections, extramarital affairs or adulteration is a crime, however in a five-judge constitutional bench unanimously held that this section was unconstitutional and stuck down the provision.

This was a result of the case Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

According to this case the court recognised as the sexual activities of a person that of a natural right which is protected under the constitution. It was observed that the physical intimacies of a person are a reflection of said persons choice, hence to disturbed or run interference the sexual relationships of the parties would be a denial of this right. Andso, criminalising this would be a violation of the persons right to privacy and the right to choose.

History

Section 497 may be a pre-constitutional law which was enacted in 1860. At that time of your time, women had no rights independent of their husbands, and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it had been considered to be a “theft” of his property, that he could proceed to prosecute the offender.

The first draft of the IPC released by the Law Commission of India in 1837 didn't include “adultery” as an offence. Macaulay was of the view that adultery or marital infidelity was a personal wrong between the parties, and not a criminal offence. The views of Macaulay were, however, overruled by the opposite members of the Law Commission.

MENTAL CRUELTY

The institution of marriage has brought within itself a collection of matrimonial offences often hindering the marital bonds between husband and wife. Under Hindu law, marriage is taken into account to be a sacrament while under Muslim law it's a contract. In earlier times ‘cruelty’ wasn't considered to be a matrimonial offence, but now thanks to the evolution of society and therefore the recognition of human rights, cruelty has been considered.

There is no exhaustive definition or clear jacket formula on what constitutes mental cruelty.

Black’s Law Dictionary states that ‘mental cruelty’ may be a course of conduct on a part of one spouse towards the opposite spouse which may endanger the mental and physical health and efficiency of the opposite spouse to such an extent on render the continuance of the marital relation intolerable.

Each case has got to be judged consistent with the actual facts and circumstances because the extent, intensity and degree of mental torture inflicted on different individuals is exclusive thanks to a plethora of social, economic, political and other factors.

The Supreme Court in V. Bhagat vs D. Bhagat on 19 November, 1993 Citations: 1994 AIR 710, 1994 SCC (1) 337, held that mental cruelty can broadly be defined as that conduct which inflicts upon the opposite party such mental pain and suffering as would make it impossible for that party to measure with the opposite.

It was opined in Vishwanath Agarwal v. Sarla Vishwanath Agarwal that cruelty has an inseparable nexus with human conduct or human behaviour.

According to D. Tolstoy, ‘cruelty’ means wilful and unjustifiable conduct of such a personality on cause danger to life, limb or health, bodily or mental or on produce to an inexpensive apprehension of such a danger

Adultery Is Abuse

Adultery, to some, might not be that big of a deal, especially if they're those committing it. This can cause a spouse or a partner’s whole entire world fall down around them after they learn their partner has committed adultery. Adultery may be a selfish and really cruel act that happens a day. It not only ruins marriages, but it can literally destroy the lives of everyone round the adulterer. Someone who may be a victim of adultery are often presented to large amounts of downfalls in their life. Emotional and mental abuses are two of the main things they're going to undergo. If the case is bad enough, and therefore the person can’t take mentally and emotionally handling what their spouse has done, adultery can even cause death. It’s amazing that such a selfish act can bring such a lot pain to numerous lives, but it does to thousands of individuals a day.

This is not something that ought to be taken lightly. It creeps into the wedding and eats away at the very core of the once blessed union. This can affect even the strongest of strongest couples and literally tear families apart.

David M. Buss and Todd K. Shackelford (1997) showed that “despite its destructive impact, infidelities are estimated conservatively to occur in about half all marriages.” (Buss D.M. & Shackelford T.K.,1997 p.216). It can definitely be shocking and scary to listen to that adultery can occur in almost half all marriages. this will lead one to believe that marriages, also as issues concerning adultery, aren't being taken very seriously anymore. With this being said, it’s sad to ascertain exactly what percentage peoples’ lives are ruined over the blatant lack of respect the overall population has for marriages and staying faithful their partner. Adultery in itself can affect every single person who is exposed thereto or around it, especially the youngsters. the consequences of adultery can even ripple to the non-immediate family and friends. Out of everyone adultery effects, the spouse or spouses’ who are having adultery committed against them also because the children who are involved the families will sadly take the brunt of the pain adultery has got to offer.

Ruth K. Westheimer and Pierre A Lehu (2007) proclaimed “adultery is perhaps the single-most cited grounds for divorce.” (Westheimer, R.K. & Lehu, P.A., 2007 p.332s) Not only will the family need to affect the tragic act of adultery once it's delivered to the sunshine, but they're going to even have to affect the horrible divorce they'll face if they prefer to undergo it. Divorce in itself, for whatever reason, can cause enormous amounts of negative impact on the entire family, including the youngsters.

Alison Clarke-Stewart and Cornelia Brentano (2006) suggested that if one compares children in intact families with the children from divorced families then the latter are more likely to possess conduct problems and show signs of psychological maladjustment. They are found to be more prone lower academic achievement, more social difficulties, and poorer self-esteem. (Clarke-Stewart & Brentano2006 p.107) this will also stick with the youngsters far beyond the purpose of reaching adulthood.

CONCLUSION

And so, for all the reasons mentioned it is obvious that extramarital affairs can without a doubt cause mental cruelty.

I would also like to add that as section 498 IPC A states that whoever, being the husband or the relative of the husband of a lady, subjects such woman to cruelty shall be punished with imprisonment for a term which can reach three years and shall even be susceptible to fine.

Hence, I believe that if cruelty is a crime, then adultery too should be a crime as adultery is a form of cruelty in a marriage.

The Madras High court too came to the same opinion as in a pertinent judgement they had observed that adultery can cause grave mental trauma and mental health issues which would constitute as mental cruelty under Section 498 (A) IPC.


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