LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


KEY TAKEAWAYS

  • Adultery is now seen as a civil wrong that has been decriminalized, although it was formerly regarded as a criminal offence.
  • Adultery was earlier penalized under Section 497 of the Indian Penal Code, making it a criminal offence.
  • Joseph Shine was the first person to challenge the law of adultery in India.
  • The High Court of Karnataka stated that the allegations of adultery can not be proven by summoning medical records.
  • The case laws of Mr. Surupsingh Hrya Naik v. State of Maharashtra (23 March 2007) and Radiological & Imaging Association v. Union of India on (26 August 2011) are undertaken to understand the notion of doctor-patient confidentiality.

INTRODUCTION

Adultery is a French term that derives from the Latin verb ‘adulterium,’ which means ‘to corrupt.’ Adultery is described as a consensual extramarital sexual connection that is deemed impolite on social, religious, and moral grounds, as well as earlier on legal ones.Even if adultery is no longer a criminal offence, it is still considered a delinquent behavior since it breaches societal standards that an individual is expected to follow.Adultery had been classified as a crime for the past 158 years, but with the Supreme Court's decision in Joseph Shine v. Union of India, it has been decriminalized and is now considered a civil wrong rather than a criminal one.Adultery is still a legal ground for divorce, notwithstanding the Supreme Court's opinion that the legislation incorrectly considers women as the property of males and violates basic rights.

BACKGROUND

The findings of adultery legislation may be traced back to Hammurabi's code, which included adultery in the seventh commandment. Adultery is an extramarital affair that is socially, morally, religiously, and legally prohibited.

Contrary to popular belief, adultery had a broader historical applicability which may be explained by the fact that it applied not only to adultery between a married and unmarried man and a married woman but also between a married man and an unmarried woman.

Of its current form, the applied law commission in India deemed adultery to be an acceptable legislation in the early Independent Era, and the Supreme Court supported this in the case of Yusuf Abdul Aziz.

In India, the adultery legislation treated women as though they were one and the same person as males. The law penalized a male who committed adultery with a married lady, but it did not apply to women. Women were thought to be innocent victims, and as a result, they were not punished for adultery. In the perspective of the law, she had no independent life and was considered her husband's property. The law was defended on the grounds that marriage is a holy institution that had been allegedly violated by a sacred man, and so only he was punished.

ADULTERY UNDER THE INDIAN LAW

Adultery was originally penalized under Section497 of the Indian Penal Code, making it a criminal offence. The legislative aim underlying the establishment of Section 497 of the IPC, on the other hand, is substantially different from what opponents believe.In 1847, the Law Commission of India was tasked with rewriting the Indian Penal Code. The commission, while redrafting the criminal code, made only males accountable for adultery. This was done in consideration of the condition of women at the time, and a duty was placed on the law to defend women's interests.On the other side, opponents believe that section 497 of the IPC aims to impose and intrude in the lives of two consenting adults while forgetting or overlooking the reality that adultery destroys the lives of others. People who are in favor of decriminalizing adultery in India are those who believe that morality should be defined by individual whims and fancies.

As the then CJI Dipak Misra pointed out that the law of adultery is discriminatory since it treats one of the adultery parties as a victim and the other as a criminal. There is no reason for doing so and it is also a violation of Article 14 of the Indian Constitution because it leads to nonsensical gender categorization.

In terms of 'consent,' it might be claimed that the law stipulates that a woman's connection with other married people is contingent on her husband's consent. This suggests that a woman can sleep outside of her marriage with her husband's permission or connivance. This also establishes that the husband has authority over his lawfully married wife's sexuality.

ADULTERY AS A GROUNDS FOR DIVORCE

Adultery might be a basis for divorce and subject to civil fines, according to the Supreme Court, but it is not a criminal offence.Any voluntarily sexual intercourse with a person who is not the spouse is a reason for divorce, according to Section 13(1) of the Hindu Marriage Act of 1955. Adultery is defined as a reason for judicial separation in Section 10 of the Hindu Marriage Act, 1955.The Indian Divorce Act in Section 22 established the grounds for judicial separation based on adultery.According to the Special Marriage Act of 1954, having consensual sexual intercourse outside of marriage is a legal reason for divorce.

DECRIMINALISING ADULTERY

The Supreme Court unanimously struck down Section 497 of the Indian Penal Code which dealt with adultery on September 28, 2018.Justices Deepak Misra, Justice Nariman, Justice Chandrachud and Justice Malhotra made up the bench at the time. The court struck down a 158-year-old colonial-era legislation that it believed treated women as property of men. The Supreme Court had invalidated a colonial-era legislation for the second time in a month.It had earlier invalidated a 157-year-old colonial statute in India that prohibited homosexual sex.

Non-resident Keralite Joseph Shine, aged 41, filed a Public Interest Litigation under Article 32 of the constitution, questioning the legality of the offence of adultery as defined by section 497 of the Indian Penal Code. Shine used American poet Ralph Waldo Emerson, women's rights campaigner Mary Wollstonecraft, and former UN Secretary General Kofi Anna liberally in a 45-page petition to underline his views on women's rights and gender equality.The governing BJP, on the other hand, is opposed to the petition and believes that adultery should remain a criminal offence. Diluting adultery laws would have an influence on the integrity of marriages and making it legal would harm marriage connections according to their reasoning.

KARNATAKA HIGH COURT’S JUDGEMENT

The Dharwad bench of the Karnataka High Court has ruled that collecting a spouse's private medical information will not show his or her unlawful connection. The judge made the remark while overturning a family court order requesting medical documents in a divorce dispute.

The husband petitioned the family court for dissolution of marriage while the wife petitioned for support. The man claimed that his wife was having an extramarital affair and that she got pregnant as a result of it. It was contended that the records requested from the hospital were required to prove the claim. The trial court granted the application primarily on the basis that the hospital authorities had no intention of keeping spouses' medical information private.

The wife challenged the order claiming that a person's medical data are completely private to that individual and cannot be accessed by anybody not even the husband. It was also contended that summoning medical records and requiring the doctor to present evidence amounts to compelling the practitioner to break his or her oath of confidentiality to the patient.

The ability to instruct a medical practitioner to act in contravention of his or her statement should be utilized only for strong and compelling reasons, according to Justice N S Sanjay Gowda and would be used more or less exclusively where a public interest element is involved. ‘In fact, if this approach is to be accepted, it will amount to the destruction of the entire concept of doctor-and-patient confidentiality and also drag the doctor into a marital dispute’ the court stated.The court also said “This allegation cannot be proved by summoning the private medical records of the wife”

CONFIDENTIALITY AND PRIVACY IN HEALTHCARE

The anonymity of a patient's treatment is extremely important and should be safeguarded. Individuals have the right to have their personal and medical information kept private or secret. Such sensitive and private information about a person should only be shared between him and his doctor, physician, healthcare provider or health insurance provider.The patient's medical information supplied to a health care professional may not be disclosed to outsiders unless the patient grants his approval.

LAWS GOVERNING CONFIDENTIALITY AND PRIVACY OF A PATIENT IN INDIA

  • According to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 it is stated in chapter 7- (7.14) that a registered medical practitioner shall not divulge any of the secrets of a patient acquired in the exercise of his or her professional skill or while conducting treatment.
  • The repercussions of the infraction are discussed in Chapter 8- (8.2). It explains that if a complaint is made about a registered medical practitioner's professional misconduct and it is brought before the Medical Council of Disciplinary Action, the appropriate medical council will hold an inquiry and give the registered medical practitioner the opportunity to be heard in person or by a pleader after receiving the complaint. If the registered medical practitioner is found guilty of professional misconduct during the course of the investigation or proceeding, the Medical Council may impose whatever punishment it deems appropriate in the circumstances, or they may order the removal of his medical practice entirely or for a limited time.
  • If a judgement on the complaint filed against him is pending, the relevant Council may prohibit the physician from practicing the technique or practice that is the subject of study or investigation under chapter 8- (8.5).
  • There are no particular regulations in India that guarantee the privacy and confidentiality of patient data other than the 'code of ethics,' although the Health Ministry suggested a Digital Information Security in Healthcare Act (DISHA) in 2018.

CASE LAWS RELATED TO DOCTOR PATIENT CONFIDENTIALITY

  • Mr. Surupsingh Hrya Naik v. State of Maharashtra (23 March 2007): The Medical Council Code of Ethics and the Right to Information Act of 2005 were in conflict in this instance. It was questioned in this case whether making health records public under the Right to Information Act would violate the right to privacy. As a result, the Bombay High Court ruled that the Right to Information shall take precedence over the Right to Privacy and Confidentiality in this case.As in this instance, the petitioner was receiving the sentence imposed on him by the Hon'ble Supreme Court, at which time he was admitted to the hospital and had surgery because he was suffering from cardiac difficulties, low blood sugar, and high blood pressure. It was held in this case that if a person is sentenced or convicted or is in police or judicial custody and that person is admitted to a hospital or nursing home during that time that information should be made available to the person who requests it but that hospital or nursing home should be maintained by the State, public authority, or any other public body.Only in extraordinary circumstances if the rationale is likewise genuine, may the information that has been written down be disputed.In this case, the conclusion was made that the Right to Information Act can take precedence over the Medical Council Code of Ethics.
  • Radiological & Imaging Association v. Union of India on (26 August 2011): In this case, the petitioner challenged the Collector and District Magistrate of Kohlapur's circular, which required Radiologists and Sonologists to submit an on-line form F under the Pre-conception and Pre-natal Diagnostic Techniques Rules (PNDT) and to install the SIOB (silent observer) for all sonography machines as part of the district's "save the baby" campaign to improve the sex ratio. The petitioner objected claiming that it infringes on the privacy of their patients.The images are stored in the silent observer and are not transmitted online to any server, according to the Bombay High Court, and it remains fixed in the ultrasound machine until the Collector/civil surgeon requests it be opened in the presence of the concerned radiologist/sonologist/ doctor in-charge of the Ultrasound Clinic. Following all of the facts, it was determined that the doctor's duty of secrecy and the patient's right to privacy were not violated.It was also noted that the scope of the right to privacy must be constrained or limited by the public interest, and that it must conform to all provisions of the PNDT guidelines. Furthermore, the employment of a silent observer system on a sonograph includes essential precautions or protections and does not breach any private rights since the country's dropping sex ratio was deemed a compelling public purpose that could outweigh the right to privacy.

CONCLUSION

By repealing a legislation that stripped women of their dignity, the legalizing of adultery is a positive step toward a more enlightened society. It is aberrant behavior because it is unethical and immoral since it undermines the sacredness of marriage, which is seen as a holy institution in society.To summarize, the legal system should not restrict who one should sleep with but rather the process of divorce if one of the two parties violates the marriage's purity. However, adultery should not be proved by using medical records as evidence as it breaks the doctor-patient confidentiality. Although, there are several gaps in the rules that have been enacted or are being enacted, since on the one hand, it provides for the right to privacy, while on the other hand, it states that anybody can get information or seek access to records under the Right to Information Act of 2005.For an efficient framework, the government must take an active role in enacting regulations governing privacy and confidentiality in healthcare that are compatible with the Indian legal system, as well as facilitating collaboration between private and public sector organizations.


"Loved reading this piece by Mansha Kathuria?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - Mansha Kathuria 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query