With the decriminalisation of adultery in September 2018 in Joseph Shine vs Union of India, women seem to have found new freedom. According to a recent survey by Gleeden, the first extramarital dating website in India, seven out of 10 Indian women cheat on their partners as their relationship has got monotonous and an illicit relationship has brought the spark back into their lives.
And in a sign of changing times, the Uttarakhand High Court declined to issue a writ of habeas corpus in favour of a husband, a Dehradun-based gym trainer, and allowed his wife to stay with a male friend with whom she was residing on her own free will.
Marriage between both was solemnised in 2012 and two children were born out of the wedlock. In August 2022, the wife left her matrimonial house along with the children. The husband had alleged that she was in illegal detention by another man and had filed this writ. Under such circumstances, a Court can order that the person thus detained be brought before it so that the legitimacy of the custody can be ascertained. If the court determines that the detention was unlawful, the subject must be freed immediately.
In the present case, the wife stated in Court that she has been living with another man in Faridabad of her own free liberty and was not being held illegally, as her husband had alleged. She accepted her extramarital affair and refused to go back to her husband as he had misbehaved with her.
The High Court bench of Justices Pankaj Purohit and Manoj Kumar Tiwari rejected the husband’s plea and noted that as the wife was living with another man out of her own will, no order can be passed in the habeas corpus plea. Therefore, the bench allowed her to live with the live-in-partner. The judges emphasised that the habeas corpus writ was an extraordinary remedy that demanded a strong prima facie case of illegal confinement, which was lacking in this case.
Decriminalisation of adultery is a significant legal and societal development that can have far-reaching implications for individuals and relationships. If this had been the situation prior to the decriminalisation, the man from Faridabad would have faced a penalty under Section 497 of the Indian Penal Code, 1860. Section 497 states 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”.
Under this Section, the wife was earlier not punishable even as an abettor, which is why the apex court struck down the provision and held it unconstitutional. Former Chief Justice of India Dipak Misra had said that a “husband is not the master of wife…. any system treating a woman with indignity invites the wrath of the Constitution that is why adultery is no longer a crime”.
Chief Justice of India DY Chandrachud while speaking on decriminalisation of adultery had said that controlling the sexuality of a woman hits her autonomy and dignity. When a couple marry, the wife does not give up her sexual freedom or control over her sexuality. Section 497, he said, deprives a woman of her sexual freedom, which violates the concept of privacy and dignity enshrined in Article 21 of the Indian Constitution. However, the Court has made it clear that adultery can be used as a reasonable ground for divorce.
Historically, infidelity was often portrayed as a male-centric behaviour, attributed to evolutionary instincts or societal norms. However, societal dynamics and gender roles have undergone significant transformation in recent times. There have been many cases where the actual victims of infidelity are men and they have approached courts through a habeas corpus writ petition alleging illegal detainment of their wives, which later turns out to be an extramarital affair.
In a similar case, the Allahabad High Court had relied on the principle that such a writ is a prerogative writ. It was further held that the writ cannot be invoked merely for the purpose to regain the wife if no prima facie case of unlawful detention is made out. The Court stated: “The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would not be available as a matter of course…. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.”
But there was also a bizarre case in Gujarat where a man filed a habeas corpus writ petition before the High Court seeking custody of his girlfriend from her husband. He stated that her husband had illegally detained her and that she had left him and signed a live-in relationship agreement. The division bench of Justices VM Pancholi and HM Prachchhak imposed Rs 5,000 on the man and observed that his girlfriend’s custody could not be given to him on the basis of the live-in-relationship agreement. Usually, husbands file habeas corpus writ petitions seeking liberty for their wives from the unlawful custody of her parents.
While habeas corpus pleas have been filed in India in situations involving suspicions of illegal detention, courts have consistently emphasised the importance of consent, personal autonomy and evidence. It is crucial for individuals to explore a range of options, including counselling and mediation, to address the underlying issues that lead to marital discord.
—By Ritika Gaur and India Legal Bureau