Before the enactment of the Indian Penal Code, 1860 adultery was not an offence in India either for men or women. It was not even included in the first draft of the Penal Code but was added by the Second Law Commission. The Law Commissioners noted that the then prevalent social infrastructure and the secondary and economically dependent position of women were not conductive to punish adulterous men.
Section 497. 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, 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.
Essential ingredients of the offence
The essential ingredients of the offence of adultery are-
- Sexual intercourse
- Married woman
- No consent or connivance of the husband
- Consent of the married woman
The main essential of adultery is a man having sexual intercourse with a married woman. The intercourse must have taken place to invoke this section. Mere speculation or preparation of the same doesn’t amount to adultery. Thus, if before sexual intercourse takes place, the husband or someone else stops it, this act would not attract this section since it is still the preparation stage. Similarly, when an accused was provided with a married woman to pass the night with but before he could have sexual intercourse with her, the husband intervened and took her away, the accused was not held guilty under this section.
Proof of sexual intercourse is essential for the offence of adultery but it can rarely be proved by direct evidence. It has to be inferred from the facts and circumstances of the particular case. These circumstances must be such that they fairly infer that intercourse took place. It was held in Vedavalli v M C Ramaswamy that evidence of opportunities sought for and obtained and of undue familiarities , which point strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse. The entire background of the case must been seen to ascertain intercourse.
Woman must be married
A lawful marriage must be proved. Sexual intercourse with a widow or am unmarried woman or a prostitute, thus, does not amount to the offense of adultery. Even if the woman has been living romantically with a man and has children with him, as long as they are not married, this section cannot be invoked.
Aside from having sexual intercourse with a married woman, the man must also know or have reason to believe that the woman is married. If this knowledge is not present, he cannot be held guilty for the offence of adultery. Knowing the identity of the husband, however, is not a perquisite for this section. It is sufficient if he knows or has reason to believe that the woman he is having sexual intercourse with, is married. For example, this reason to believe can be the presence of mangalsutra in case of Hindu married woman.
The prosecution has to prove the presence of such knowledge or reasonable belief as it constitutes mens rea which is essential for the offence of adultery.
Consent or connivance of the husband
The husband must not have given consent for this sexual intercourse. This is based on the principle of volenti non fit injuria which means ‘what is consented to can’t injure’. This consent can be express or implied.
Connivance indicated a voluntary blindness to some act, which is known to be going on without protest or desire to disturb or interfere with. Thus, if the husband is fully aware of the fact that his wife is committing adultery but he does not say or do anything to stop her, then this adultery can be considered to have been committed with his acquiescence.
The absence as well as presence of consent or connivance can be inferred from the background, facts and circumstances of the case.
Should not constitute rape
One of the essentials of the offence is that the sexual intercourse takes place between two consenting adults. The married woman must be a willing party to it. If the accused has sexual intercourse without the consent of the woman, then it would constitute rape. In such cases, the consent or connivance of the husband is immaterial and if the woman’s consent is absent, the act will amount to rape.
Complaint by person aggrieved necessary
No Court shall take cognizance of the offence under this section except upon a complaint by the husband of the woman, or in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed. If the husband is under eighteen years of age or is an idiot or lunatic or is unable to make a complaint, some other party may make a complaint (Section 198, CrPC).
Exemption of woman from prosecution
Section 497 expressly exempts the women from prosecution and from being charged as an abettor. The basis of this is that such a wife, who is having an illicit relationship with another man, is a victim herself. This exemption seems to be based on a set of realities and assumptions about women, about women’s sexuality and about the relationships between men and women originated from the traditional gender bias approach to, and unequal status of ‘husband’ and ‘wife’ in the marriage institution in India. The authors of the Code were influenced by the then prevalent rampant child marriages and polygamous marriages, and the privilege of the husband to fulfill his zenana with women, and make his wife seek his attention with several rivals; for not punishing infidelity of wives.
AIR 1964Mys 280.