Adultery

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Adultery

Section 497 of IPC makes adultery a criminal offence. Adultery is an invasion on the right of the husband over his wife. In other words, it is an offence against the sanctity of the matrimonial home and an act which is committed by a man.[1] It is an anti-social and illegal act. It consists of having carnal knowledge of a married woman[2] with knowledge of that fact, without the consent or connivance of her husband.[3] To constitute adultery, sexual intercourse is a necessary ingredient.[4]

Ingredients of Section 497

In order to constitute the offence of adultery under section 497, the following ingredients must be established, viz:

  • The wife should have committed sexual intercourse must be committed with another man;
  • The person ought to have the knowledge or have reason to believe that the woman is the wife of another man;
  • The sexual intercourse should be without the consent or connivance of the husband;
  • Lastly, sexual intercourse should not amount to rape.

Landmark case laws

  • KM Nanavati v State of Maharashtra

In this much-celebrated case,KawasManekshawNanavati who was a Naval Commander was prosecuted and convicted for the murder of Prem Ajuha with whom Kawas’s wife Sylvia had an illicit relationship.

  • Olga Thelma Gomes v Mark Gomes

The petitioner had brought a suit for dissolution of marriage on grounds of adultery, cruelty and desertion. It was shown by the petitioner that the respondent was with living unknown women in a flat. However, no evidence was adduced to prove that the women were a married one. Therefore, the court held that the husband was not liable for adultery.

Criticism of section 497

Section 497 is criticized to be patriarchal and discriminatory. The law makes a wife, a mute subject i.e., a chattel as prevailed in Victorian ethics. In the present times, the law is gender unjust primarily because of two reasons. The first is that a sexual relationship between a married woman and another man would be legal if it carries the consent of the husband and secondly, the female section is not taken to task. Hence, it is quite explicit that the law contravenes the right to equality and equal protection of the law.

The consent or the willingness of the women is no excuse for the crime of adultery.[5] Thus we can say that adultery is an offence committed by a man against a husband in respect of his wife.

Adultery Unconstitutional

However, the Supreme Court has scrapped section 497 of IPC holding it to be unconstitutional and arbitrary. But it shall continue to be a ground for divorce or any civil wrong. The Bench composed of Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra declared that the colonial law was in contravention of Articles 14 (right to equality); 15(1) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); and, 21 (protection of life and personal liberty).[6]  In addition, section 198 (prosecution for offences against marriage ) of the CrPC has also been declared as unconstitutional.

Position in Jammu and Kashmir

In this regard, we find the Jammu and Kashmir State Ranbir Penal Code, 1932, section 497 is more progressive. It makes the errant wife punishable along with her paramour.

Comparison with other Countries

Position in United States

The law relating to adultery can be classified into three categories:-

  1. The Common law view;
  2. The canon;
  3. The hybrid view.

According to Common law view, adultery takes place only if the women are married and both the husband and wife are held liable. Under the canon law view, only the married person is held guilty. As per the hybrid rule, both transgressors are guilty of adultery.

Position in England

Adultery is not a criminal offence in the United Kingdom. It is though punishable mildly in some of the European countries. For example, “in France, a wife guilty of adultery is punishable for a period ranging from three months to two years of imprisonment. The husband, however, may put an end to her punishment by agreeing to take her back.”[7] The adulterer is punished on similar terms.

Position in Germany

If marriage is dissolved due to adultery, both the guilty spouse and the guilty partner is liable for imprisonment not less than six months, but prosecution must be initiated by the aggrieved spouse by means of a petition. 

Position in Pakistan and Islamic Countries

In Pakistan, adultery is deemed to be a heinous offence and both the man and woman are subjected to a punishment which may extend to the death sentence. In some other Islamic countries such as Saudi Arabia, Iran, Egypt, etc., adultery is similarly punished as in Pakistan.

Position in Philippines

Surprisingly, in the Philippines which is a catholic dominated Christian country, it is the married woman, and not the husband, who is liable for adultery. On the other hand, if a married man keeps a concubine, both man and concubine are liable to punishment.

Position in Malaysia, Singapore and Hongkong

Despite Malaysia being a predominantly Muslim country, adultery is not an offence under the Penal Code. So is the case in Singapore and Hong Kong.

Illustrations

Illustration 1

W, a married woman has been absenting herself from her house for six days at a stretch. During this time she is seen with a stranger quite a number of times. There being no explanation for this, leads to an irresistible conclusion that she committed adultery.

Illustration 2

X, who is a married woman lived with C, a married man living apart from his wife, in a flat consisting of a bed-sitting room, a kitchen and a bathroom. The landlord believes X to be his wife. Later on, they occupied one bedroom.

Frequently Asked Questions (FAQs)

1. How adultery affects divorce?

Adultery is a ground of divorce under all personal laws. Under the Hindu Marriage Act [section 13(1)(i)], Special Marriage Act [section 27(1)(a)], Parsi Marriage and Divorce Act [section 32(d)] and the Divorce Act [section 10] , adultery is a ground for divorce as well as judicial separation.[8] Under the Dissolution of Muslim Marriages Act [section 2(viii)(b)], adultery is not a ground for divorce, but if the husband “associates with women of evil repute or leads an infamous life”, it amount to cruelty to wife and she can sue for divorce on this ground.

2. Will adultery affect alimony?

Under section 125 of CrPC, an adulterous wife is not entitled to claim maintenance from the husband. Erstwhile, if the husband is keeping a concubine in the same house or living with a concubine separately, the wife is entitled to live separately and claim maintenance from her husband.[9]

3. How is adultery proven in court?

The burden of proof is that the respondent committed adultery is on the petitioner who must prove it beyond a reasonable doubt.[10] But the test of proof beyond a reasonable doubt had its sway. Now the courts look for ‘a high degree of probability’. In modern law, adultery can be proved by a preponderance of the evidence; it need not be proved beyond reasonable doubt.[11]

No direct evidence of adultery is required. Perhaps it is difficult to produce direct evidence of adultery. Even if direct evidence is adduced, it is looked with suspicion.[12] The circumstance should be such as regarded together, they lead to the irresistible conclusion of the commission of adultery.[13] The mere statement of the petitioning spouse is not enough; it must be corroborated.[14]  General evidence of ill-repute of husband or the lewd company that he keeps and that he knows the addresses of prostitutes would neither prove nor probabilize adultery.[15]

4. Are adultery laws unconstitutional?

The Supreme Court in Yusuf Abdul Aziz[16] held that section 497, IPC is not ultra vires. It does not offend Article 14 and 15 of the Constitution of India, 1950.The reasoning given was sex is a sound classification accepted under article 15(3) of the Constitution. The same was reaffirmed in Sowwmithri Vishnu v Union of India[17].Similarly in V. Revathi v Union of India and Ors.[18] The Apex Court declared that section 497 has been so formulated so as to prevent a husband from filing a suit against his wife for committing adultery. Therefore, neither the law permits the husband to bring an action against offending wife nor the wife can initiate a suit against the offending husband for being disloyal to them.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

References

[1] Olga Thelma Gomes v Mst. Nandu, AIR 1959 Cal 451.

[2]Dalip Singh, AIR 1949 All 237.

[3]Clarance v M. Raicheal, AIR 1964 Mys 67.

[4]Munir v Emperor, (1925) 24 ALJR 155.

[5]Gul Mohammad v Emperor, AIR 1947 Nag 121.

[6]Ananthakrishnan G, Adultery no longer a crime, the wife is not the property of husband: Supreme Court, The Indian Express, 28th Sept 2018. Retrieved on 02/10/18 from  https://indianexpress.com/article/india/adultery-no-longer-a-crime-wife-is-not-property-of-husband-supreme-court-5377499/.

[7]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg-845.

[8] Dr Paras Diwan, Family Law (10th Edition, Allahabad Law Agency, 2015) at pg-144.

[9]Rajathi v Gamesan, 1999SC 2374.

[10]Bipin v Prabha, AIR 1957 SC 176; White v White, AIR 1958 SC 441.

[11]Sari v Kalyan, AIR 1980 Cal 374; Mallika v D.S. Rajendran, AIR 1995 Mad 100.

[12]Pattaye v Manichami, AIR 1967 Mad 254.

[13] Tripathi v Bimal, AIR 1957 J&K72; Subbaramma v Sarawati, (1996) 2 MLJ 263; White v White, AIR 1958 SC 441

[14]Sulekha v Kamlakant, AIR 1980 Cal 370.

[15]Henderson v Henderson, AIR 1980 Cal 370.

[16]Yusuf Abdul Aziz v State of Bombay, AIR 1954 SC 321.

[17] AIR 1985 SC 1618.

[18]AIR 1988 SC 835.

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Soma Sarkar
I am Soma Sarkar from Chanakya National Law University, Patna pursuing BA LLB (Hons.). My areas of interest include Criminal laws and Arbitration laws. I have a passion for research and legal writing. I am also an active member of Legal Aid Cell of my college and also member of Eucotopia, the environmental group of my college. My goal is to become an arbitrator.