Criminalization of Adultry Does Not Serve Any Essential Purpose

Explore India's adultery laws: From the Hindu Marriage Act to the IPC and landmark Supreme Court decisions.

The word “adultery” originated from the words ‘ad’ which implies ‘towards’ and ‘alter’ which implies other, combined within the Latin term “adulteriumi”. Adultery refers to an intentional sexual congress between a personal who is married and someone who isn’t the spouse of that individual. Adultery is taken into account as legally wrong and could be a punishable offense. The act of adultery could be a crime which breaches the wedding vows and is detrimental to public morals. At common laws, adultery was unlawful intercourse between a woman and any man apart from her husband. Almost every religion treats it as an unpardonable sin. In ancient Greece and Romanian world, there have been harsh laws against adultery but these were applicable given that the feminine was married. But these law weren’t relevant, if a person maintained relationship with a slave or an unmarried female. The bible too forbids adultery and therefore the 7th commandment clearly states this. In customary Judaism, both the parties were equally chargeable for adultery but it applied provided that the feminine partner was married. Lord Jesus also abhorred adultery and thought of that even watching a female lustfully is love adultery. According to ancient Hindu Laws, only the felonious female were punished and killed while the husbands were considered adequate to god and were left off with warnings only.

Adultery in the Hindu Marriage Act, 1955: It means voluntary sexual activity with the other person, aside from his/her spouse. In HMA 1955 adultery is one of the ground for divorce or judicial separation. Previously (before Pre-amendment) in HMA, 1955, word used ‘living in adultery’ was replaced by the word ‘adultery’. Also before pre-amendment in HMA, 1955 usual indulgence must to be proven but after the amendment, only a single act of adultery is sufficient. There’s no need of direct evidence, only circumstantial evidence is sufficient.

In India, adultery as a ground for divorce is enshrined in section 13(1) (i) of the Hindu Marriage Act, 1955 as

follows:

(1) Any marriage solemnized, whether before or after the commencement of this Act, May on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party,

(2) Has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse or...

Adultery in the Indian Penal Code, 1860: Section 497 of chapter XX-A of IPC read as:

Adultery – 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. Section 497 says that the lady in an adulterous relationship won’t be considered an abettor. This section doesn’t penalize the sexual intercourse of a married man with an unmarried woman or a widow or may be a married woman when her husband consents thereto.

Essential Ingredients of Adultery in IPC

 Sexual intercourse.
 Woman must be married.
 Knowledge.
 Consent or connivance of husband.
 Couldn’t constitute rape.

In the case of Kashuri vs. Ramaswamy, it had been held that the proof of sexual intercourse needs to be inferred from the facts and circumstance of a case as direct evidence can rarely be proved. Also in 1976, Section 498 was amended and lays down the punishment for the adultery, which is follows: Enticing or taking away or detaining with criminal intent a married woman whoever has sexual intercourse with a person who is, an whom he or she knows, or has reason to believe, to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such as sexual intercourse by the man not amounting to the offence of rape, commits 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.

Essential Ingredients

 Takes or entices away.
 Woman to be a married woman.
 Knowledge.
 Taken from control of husband or person having care of her on behalf of her husband.
 Intention to have illicit intercourse.
 Conceals or detains such women punishment may extend to two years or with fine or with both.

In the case of Almgir vs. State of Bihar, it absolutely was observed that if a person knowingly goes away with the wife of another in such a way to deprive the husband of his control over her, with the intent to possess illicit intercourse, then it would constitute an offence within the meaning of the section.

Criminal Procedure Code, 1973: It is in consonance with this approach that section 198 of Criminal Procedure Code mandates a court not to take cognizance of adultery unless the aggrieved husband makes a complaint as follows:

(1) No court shall take cognizance of an offence punishable under chapter XX of the Indian Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence.

(2) For the purposes of sub-section (1), no person other than the husband of the women shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Indian Penal Code.

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf.

It says that only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her. Immediately after the commencement of the constitution of India, section 497 of IPC was assailed on the ground that it goes against the spirit of equality embodied within the constitution. In 1951, Mr. Yusuf Abdul Aziz, charged with adultery, contended before the Bombay High Court that section 467 IPC was unconstitutional because it operated unequally between a man and a woman by making only the former responsible for adultery, in contravention of Article 14 and 15 of the constitution. This, he argued, discriminated in favor of women and against men only on the ground of sex. Recalling the historical background of section 497 and the then prevailing social conditions and therefore the unequal status of women, the High Court of Bombay upheld the constitutional validity of the provisions. Chief Justice Chagla observed: “what led to the present discrimination in this country isn’t the very fact that women had a sex different from that of men, but that women in this country were so situated that special legislation was required so as to shield them and it absolutely was from now of view that one finds in section 497 a grip in law which takes a sympathetic and charitable view of the weakness of women in this country”. The court also opined that the alleged discrimination in favor of women was saved by the provisions of Article 15(3) of the constitution which permits the state to make any special provision for women and children. In his appeal to the Supreme Court, Yusuf Abdul argued that section 497 of the IPC by assuming that the offence of adultery could only be committed by a man and mandating a court that the adulteress wife be not punished even as an abettor, offended the spirit of equality enshrined in Article 14 and 15 of the constitution. Such immunity assured to the adulteress wife (even) for her wiling participation in the adulterous sexual activity, it was argued, did amount to a sort of license to her to commit and abet the offence of adultery. Vivian Bose. J speaking for the constitutional Bench (comprising M.C. Mahajan, CJ Mukherjea, S.R. Das and Ghulam Hasan, JJ) like Chagla, CJ, relying on Article 15(3), held that section 497 was a special provision made for women and therefore is saved by Article 15(13). To the argument that Article 15(3) should be confined only to provisions which are beneficial to women and should not be

used to give them a license to commit and abet a crime with impunity, the Apex Court responded: “We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited”.

Also in the case of Sowmithri Vishnu vs. Union of India, the court held that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. And in the case of V. Revathi vs. Union of India, the court held that section 497 of the Indian Penal Code does not permit the husband to file a case against the wife who has performed adultery nor does it permit the wife to bring case of adultery against the husband, and thus, the law is not based towards anyone. In Earnest John White vs. Mrs. Kathleen Olive White and Others, the wife went to Patna and stayed with respondent no.2 under an assumed name. They occupied the same room, i.e., room no. 10. The husband filed for dissolution of marriage on the ground of her adultery. The trial court had granted the divorce and High court had reversed the decree of divorce. Upon appeal SC held that there was undoubtedly a guilty inclination and passion indicated by the conduct of respondent no.2 and there is no contrary indication as to the inclination and conduct of the wife. On the other hand her conduct as shown by the evidence was so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent no.2 and therefore the finding of the courts below as to guilt should be reversed. In Hirachand Srinivas Managaonkar vs. Sunanda, the appellant was the husband of the respondent. On the petition filed by the respondent under section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant, a decree for judicial separation was passed by the High Court of Karnataka on January 6, 1981. In the said order the court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order was not complied with by the appellant and the respondent did not receive any amount towards maintenance. Thereafter, on September 13, 1983, the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The SC held that the husband who continued to live in adultery even after the decree at the instance of wife could not succeed in his petition seeking decree for divorce and that section 23(1) (a) barred the relief.

Recent Interpretation of Adultery Law by Courts

In 2018, Supreme Court has agreed to admit a PIL that challenged the constitutional validity of section 497 of the Indian Penal Code (IPC). The PIL was filed by the Resident of Kerala Joseph Shine. The petition says that section 497 of IPC is unconstitutional as it discriminates against men and violates Article 14, 15 &21 of the Indian Constitution. The petition was filed because, a women could not be punished for the offence of adultery. Only a men who has consensual sexual intercourse with the wife of another men without his consent, could be punished under this offence of adultery. Supreme Court held that adultery is no longer a crime in India even though, “without a shadow of doubt”, it can be grounds for divorce, scrapping a 158 year law that punished a man for an affair but not the woman, treating her as property. “A man having sexual intercourse with a married woman is not a crime”, said Chief Justice Dipak Misra.

Standard Proof in Adultery case

The burden of proving adultery in a matrimonial case is on the person who makes the

allegation. The standard of proof in proceedings under the Act being initially of a civil nature is

by preponderance of probabilities and not by proving it beyond reasonable doubt. The charge of

adultery in absence of any direct evidence, can be generally proved by producing presumptive

evidence like:

 Circumstantial evidence.
 Evidence of non-access and birth of children.
 Contracting venereal diseases.
 Evidence of visits to brothels.
 Confession and admission to parties.
 Preponderance of probability.

Marriage should sustain on the strength of mutual trust, respect and love, not out of fear of a jail term. Modernizing the law on adultery was essential to live up to the commitment to equality offered by the constitution. All archaic laws in India should be revisited time to time or as per need of their constitutional validity. The principle of equality before the law could requires the revision of the law on adultery by including both partners within its scope. To change the social outlook in a patriarchal society, it is necessary that laws are designed to protect and empower women. Notwithstanding major changes in social mores and therefore the emergence of hitherto unknown (in India) styles of relationships, Indian courts have consistently upheld the constitutional validity of section 497, ostensibly to stay women out of the purview of criminal law. It is obvious that no adultery may be committed unless a woman maybe a consenting partner. Also, the judicial opinion that section 198(1) read with section 198(2) of Criminal Procedure Code, disqualifying the wife of an unfaithful husband for prosecuting him for his promiscuous behavior, with due respect, is unconvincing and illogical. It conveys that a man is entitled to own exclusive possession of and access to his wife’s sexuality and a woman isn’t eligible to possess such a right and claim over her husband. The Apex Court, thus didn’t to take contemporary insight of this gender biased law of adultery although it’s from time to time, asserted that it is for the legislature to take cognizance of the social transformation and not for it. What is even more surprising is that the Apex Court has not hesitated in steadily expanding the scope of Article.

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