This article has been written by Ms. Komal Rawat, a 2nd year student of Lloyd School of Law, Greater Noida, Uttar Pradesh.
INTRODUCTION
The article aims to present before you the relation between Adultery and Hindu Marriage Laws. The present article gives an overview of the Hindu Marriage Act, 1955 with relation to adultery and how it is punishable or not under Hindu Marriage Laws. In Hinduism, marriage is considered as one of the important sacraments. Hindu marriage is a tradition which is prevailing from Vedic period to this modern world with different-different modifications in the traditions that have occurred till now. In Hindus marriage plays a important social event and performed like a festival with lots of celebrations by performing different- different rituals. Every society recognises marriage as a socially accepted universal institution. In Hindu culture divorce is no where mentioned in Hindu religion.
In Hindu Laws adultery was no where punishable as earlier bigamy in Hindu marriage was not prohibited. Adultery means a predetermined sexual contact between two people of the opposite gender who are unmarried under the law. In other words, it is a physical relationship with someone outside marriage and the dishonesty by a married person to their spouse. It is also known as lust, vulgarity, infidelity, unchastity of thought, or an act for someone else’s spouse. It is different from rape in the context that adultery is voluntary.
Evolution of Hindu Marriage Laws
The concept of marriage is to establish a relationship between husband and wife. Based on Hindu law, the marriage is a sacred tie and last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Based on smritikars even death cannot break this relationship. In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy without asking for her advice or consent. It is the sole duty of the father to find a suitable boy. If the person was of unsound mind or minor at the time of the marriage, it was not considered as a void marriage. But in the present world, consent and mental soundness of the person are a very essential part of the Hindu Marriage, without the absence of any such element marriage will be annulled or void or no legal entity.
Forms of Marriage under the Hindu Law:
In ancient Hindu law recognized three forms of Shastric marriages as regular and valid. These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father). There are three forms of marriage which are been described in Shastri’s law as valid and regular:-
1.Brahma Marriage – The bride is given as a gift to the groom by the father generally known as the arranged marriage that is mostly followed in India. The act called marriage which is performed according to the Shastric rites and ceremony or customary ceremonies prevalent in the community.
2.Gandharva marriage – There is the mutual consent of the bride and groom and is generally known as love marriage. These marriages are prevalent in the present modern world. where the bride and groom select each other and perform marriage according to the Shatri rites and ceremony.
3.Asura marriage – Asura marriage is aggressive and forced marriage where the bride is sold by the father, it is still prevalent and performed very commonly even by high-class Hindu.
The Current Hindu Marriage Act doesn’t define or describe or acknowledge these forms of marriage. So, in the present world, people are not obsessed with only these forms of marriage. People are more aware of their choices and instead of accepting their father’s choice they want to select their partner on their own. Also, it was considered that their were eight forms of marriages four were considered to be the purest and four were considered to be the non- purest in nature. Earlier, the Hindu Marriage laws were not codified and were not legally enforceable. Hindu Marriage law has evolved overtime reflecting changes in society, technology and legal systems. The scope of Hindu Marriage law refers to the legal provisions governing marriage and related issues in Hinduism. Based on Hindu law, the marriage is a sacred tie and last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth and cannot be considered as a contract because of that the marriage taken place under Hindu laws is considered as a sacrament as it is considered to be the purest form.
The Hindu Marriage Act is a significant piece of legislation that governs Hindu marriages in India. The act has undergone several amendments since its enactment in 1955 to keep up with changing social and cultural norms. In modern times, Hindu marriage law has undergone significant changes. The Hindu Marriage Act was enacted in 1955, which repealed the old Hindu Marriage Act of 1955. The Act provided for monogamy, i.e., the practice of having only one spouse at a time. The Act also provided for divorce, which was not recognized in ancient Hindu law. The Act also abolished the dowry system and prohibited the giving and receiving of dowry. It also recognized the right of women to property and inheritance. The Act also allowed remarriage for divorced and widowed women. The Act also introduced the concept of mutual consent, where both parties need to agree to the marriage and the divorce.
Scope of Hindu Marriage Act
The main purpose of the Hindu Marriage Act was to amend and codify the laws relating to marriage among Hindus and others. In India, there are religion specific Civil Codes that separately govern adherents of certain other religions. The act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India. Every religion has their own laws for marriage. Today, the underlying meaning that marriage is a Legal Contract as it remains under the Legal obligations but under Hinduism, marriages is considered to be a sacrament not a Contract. The concept of marriage varies from community to community and nation to nation. In 1955, the Laws governing Hindu Marriage were formalized and put into effect. Every society recognises marriage as a socially accepted universal institution. One of the most profound and intricate human partnerships is marriage. The Hindu Marriage Act deals with six chapters under it and defines the rights, duties and obligations specified under the act. The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety for their family and children so that they do not suffer from their parental issues. And provides with procedure and Conjugal rights and more specific laws on divorce.
The act in the first chapter states about the definitions and extends to the whole of India for the Hindu community, Buddhist, Jain or Sikhs. Under chapter two it explains the conditions for getting married under this act and in case of no fulfillment of these conditions will consider marriage to be void or voidable under section (11)& (12) specified in chapter four. The registration of marriage cannot be registered unless two main essentials are fulfilled one is that a ceremony of marriage has been performed and second one that the parties have been living together as husband and wife. Under section (6) of this act it states the ceremonies like performing seven fheras and which is rituals which is performed under Hindu communities and result of that there are lots of marriage in India which are unregistered and still valid as they are marrying under the rituals which is mentioned under this act. It also provides lots of safeguards to the rights of parties and also prohibited dowry and bigamy.
Adultery
Under ancient Hindu law, marriage was an indissoluble sacrament, and not even a wife’s adultery could sever the legal tie and dissolve the marriage act. In the modern Hindu code, divorce can be granted to either offended party if one spouse is living in adultery but not if there are only occasional violations. The word adultery derived its meaning from the Latin verb adulterium that means to corrupt. Adultery means a sexual intercourse with some other persons spouse. It is defined under section 497 of IPC that “Whoever has sexual intercourse with a person 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 intercourse 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 may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”. It means that voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.
Adultery categorized into two types:
Single- If the relationship is between a married person and an unmarried person.
Double- If both the partners involved are married to someone else.
Is Adultery punishable under Hindu Marriage Laws?
Under Hindu Marriage Act Adultery is not punishable but under Section 13 (1) (i) it states that after the solemnization of the marriage, if had voluntary sexual intercourse with any person other than his or her spouse and this covers under adultery so u der Hindu Marriage Act Adultery is not punishable but is a valid ground for divorce. If any persons husband or wife commits adultery so he can file for divorce. It is still a valid ground for divorce.
Earlier, under section 497 of Indian Penal Code it states that a man who had consensual sexual intercourse with the wife of another man without that husband’s consent or connivance would be punishable under this section for imprisonment of 5 years. But only man will be held guilty and wife would be exempted from punishment. When a married man had sexual intercourse with an unmarried woman, no party was punishable; while if a married man had sexual intercourse with a married woman other than his wife, the married man’s crime was against the husband of that married woman, not against the man’s own wife towards whom he had been unfaithful. Adultery was only prosecutable upon the complaint of the aggrieved husband.
Now, Supreme Court had struck down this provision in 2018 as it was gender discriminate between man and women as Adultery is committed between two persons and with consent and punishing only man for it is totally discriminatory in nature as women’s involved under it were exempted from it so in 2018 supreme court struck down this provision as it was violating Article 14 & 15 of the Constitution and giving the sole right to the husband to file an complaint not the aggrieved wife of a husband who had committed Adultery so it was totally a gender discriminative provision which is now struck down by court in the case of Joseph Shine v Union of India.
CONCLUSION
Hindus are mainly governed by the Hindu Marriage Act, the main purpose of the act was to codify the law relating to Hindu Marriages and others. Also, making it codified it become legally enforceable and also prohibited bigamy which was allowed earlier at the time of un-codified law and provided with some basic rights of child custody , divorce , restitution of conjugal rights, etc. to the parties marrying under this act. And Adultery is in no relation to Hindu Laws it just an ground for divorce under the Hindu Marriage Act. Earlier it was punishable under Indian Penal Code but know it is struck down by the Supreme Court in 2018 in the case of Joseph Shine v Union for India. Now, adultery is no where punishable under Hindu Marriage Laws.
REFERENCE:
JSTOR
SSCOnline
https://www.scribd.com
https://vakilsearch.com
https://www.netlawman.co.in/ia/hindu-marriage-act-1955
https://guptaandassociates.com
https://www.britannica.com/topic/adultery
https://legalserviceindia.com
https://lawctopus.com/clatalogue/clat-pg/sources-of-hindu
www.indiakanon.com
Case:- Joseph Shine v Union of India (2018 SC 1676)