Author: Aadarsh Mishra (The ICFAI University, Dehradun)

Dr. Vivek Kumar (Asst. Professor) The ICFAI University, Dehradun

1. Adultery:

1.1)  As per section 497 of Indian Penal Code (hereinafter as IPC) ,1860 adultery is defined as :

“ 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 for a term which may extend to five years , or with fine, or with both. In such a case the wife shall not be punishable as an abettor”.

The offence of adultery is classified as Non – Cognizable, bailable, Triable by Magistrate of the first class and it is compoundable by the husband of the woman.

1.2) Who can file a complaint for the offence of adultery?

The complaint for the offence of adultery can be filed by the ‘person aggrieved’ by the sexual intercourse in the issue.  The Code of Criminal Procedure ( hereinafter as CrPC),1973 section 198(2) provides the opportunity only to the husband of the woman, with whom the accused has committed adultery, to prosecute the adulterer. This is so because the law makers at that time felt that it is the husband of the woman who is actually aggrieved by it. The said section does not provide any such opportunity to the wife of the accused to prosecute the woman with whom her husband has committed adultery or even to prosecute her own husband for having extra- marital sexual intercourse.  The complaint for this offence can also be filed by some other person, who is guardian of the wife in absence of the aggrieved husband but with prior permission from the court. In cases where the aggrieved husband is below the age of eighteen years and/or is a idiot or lunatic and/or is unable due to sickness to make a complaint to the concerned authority, it can be made by some other person on his behalf, if there is absence of any competent guardian for the husband.

2. Ingredients of adultery:

To constitute the offence of adultery, following must be established:

2.1) The woman with whom the sexual intercourse takes place must be married.

The sexual activity  by a man with a woman who is, or whom he knows, or has reason to believe to be the wife of another man, must take place for this offence to be constituted. The fact of marriage between the wife ,with whom the adultery is committed and the aggrieved husband  must be established fully. Simple cohabitation , even for years, between the parties is insufficient to constitute this offence. The particular number of witnesses must be examined to prove the fact of marriage between the concerned parties. If the sexual intercourse by a married man is done with an unmarried woman or with a widow, then this ingredient will lack and would eventually result as if no offence of adultery took place.

2.2)  Sexual intercourse must be without the consent or connivance of the husband.

Blacks Law dictionary defines ‘Connivance’ as:

“ The secret or indirect consent or permission of one person to the commission of an unlawful or criminal act done by another. A winking at; voluntary blindness; an intentional failure to discover or prevent the wrong; forbearance or passive consent,” all these such acts constitute the connivance of an individual.

For the offence of adultery, it is material and fundamental that the sexual intercourse by the offender with the wife of the aggrieved husband ,must be done without the connivance of the husband.  When the husband is forcibly taken out from his own house and his wife starts living with the accused, and husband knows of this fact since the cohabitation commenced but filed a complaint only after 18 months, then this delay in filing the complaint would amount to connivance of the husband.

“Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another”. The sexual intercourse in the issue if takes place by the consent of the husband, then the offence shall not be deemed to have been committed. Adultery is considered as an offence against the husband, and not against the wife of the adulterer (accused’s wife).

2.3)  Sexual intercourse must not amount to rape.

The sexual encounter between the parties in issue must not amount to the offence of rape as defined in section 375 & 376 of  IPC. The sexual intercourse with the adulterous wife must happen with her will and free consent.

3. Comment:

3.1) Wife is not punishable as abettor.

A proper reading and interpretation of section 497 will tell us that it is only the adulterous male who can be prosecuted and not the woman for the offence they committed together. They enjoyed sexual intimacy with mutual consent and understanding, but at the time of punishment the state only prosecutes the man and not the woman. She is exempted and immuned from all kinds of criminal liability, and not even considered as abettor in the offence. This provision is thus criticized as it is in violation with article 14 (Equality before law ) of the Indian constitution. The provision dealt with male and female offenders of the same crime on two different standards, wherein it punishes one partner while the other partner enjoys absolute immunity.

3.2) Adultery, whether a continuing offence?

Every  act of sexual intercourse amounts to an offence of adultery and if a person has sexual intercourse with a woman several times, it can’t be said that the offence is continuing. For any kind of legal proceedings to start , there must be a complaint filed by or on behalf of the aggrieved husband. It is undesirable that there should be successive prosecution for the offence of adultery by the same offender with the same woman.

3.3)  Wife of an adulterer, not considered as aggrieved.

The section 198(2) of CrPC does not consider the wife of the accused husband as aggrieved. This provision discriminates between a married man and a married woman on the ground of sex only which infringes the  constitutional rights provided by article 15 of the Indian constitution . A husband is considered as aggrieved if his wife indulges in sexual activity but a wife is not considered an aggrieved if her husband indulges in adultery with another married woman. The law does not even consider it to be an offence if the same husband enjoys sexual intimacies with an unmarried woman or a widow. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of article 14 of the constitution being manifestly arbitrary.

3.4) Wife treated as chattel of the husband.

The provision of adultery is quite archaic and it treats wives as the property or chattel of the husband. Adultery was considered as the “highest possible invasion of property” of the husband. The dominance of the patriarchal system is clearly visible in this post – millennial archaic law as only the consent or connivance of the husband for his wife’s sexual intercourse with another person makes it not culpable. This provision curtails the essential dignity which a woman possesses making her totally  subservient to the will of her master (husband).

4. Case Laws:

4.1) Yusuf Abdul Aziz v. State of Bombay, 1954 AIR 321, SCR 930

The adultery law reached court in 1951 during the Yusuf Abdul Aziz case. Petitioner contended that the adultery law violated the fundamental rights of equality before law guaranteed under Article 14 and  Prohibition of discrimination provided in article 15 of the Indian Constitution. The High Court of  Bombay gave the verdict against the contentions of the petitioner but, provided him with a certificate under article 132(1) and 134(1)(c) of the Indian constitution which the party can use to appeal against the judgement  in the Supreme court of India

Three years later in 1954, the Supreme Court ruled that it is usually accepted that it’s the male who is the seducer, and not the woman.  The Court stated that ladies could only be a victim of adultery and not a perpetrator of the crime under Section 497. The five judge bench on 10-03-1954 upheld the validity of section 497 ,on the ground that article 15(3) of the Constitution provided special laws for women and children.

4.2) Smt. Sowmithri Vishnu v. Union of India, 1985,  AIR 1618, Cr LJ 1302 (SC).

In this case, a woman filed a petition for divorce against her husband on the ground that her husband had deserted her. The trial court dismissed the petition and held that it was actually the woman who had deserted the husband . After this ruling, the husband filed for divorce on two grounds that:  she had deserted him and secondly that she was having extra-marital sexual intercourse i.e. Adultery. The trial court accepted both the contentions of the husband and granted him a decree for divorce. The wife filed for a revision in the High Court and it held that it was unnecessary to inquire into the question of adultery in this case.

The husband also filed a petition against the person with whom his wife had committed adultery and in response to this petition, they contended that the very provision(Section 497 IPC) under which the husband has filed the complaint against the accused is unconstitutional. But the Supreme Court rejected these arguments and held that it cannot be said that in defining the offence of adultery so as to restrict the class of offender to men, any constitutional provision is infringed.

4.3)  V. Revathi v. Union of India & Ors, 1988 AIR 835, SCR (3) 73

The question arose on the provisions of  section 497 in this case were that the said section permits only the husband of the adulteress to file a complaint against the adulterer but does not permit the wife of the adulterer to file any such case against the adulterous woman . This section also lacks the provision for the spouses to file a case against their partner. The party contended that it violates the fundamental right of equality before law and also discriminates the offender’s wife on the ground of sex. The case came out with a verdict that a husband can not be allowed to prosecute his  wife for defiling the sanctity of marriage and neither can a wife prosecute her husband for being disloyal to her. Thus,to protect the marriage between two parties, they are prohibited from hitting their spouses with criminal swords.

4.4)    Joseph Shine v. Union of India, 2018 SC 1676

A person named Joseph Shine filed a PIL in Supreme Court of India under article 32 and challenged the constitutional validity of section 497 IPC and section 198(2) CrPC. The three judge bench which was composed of the then Chief Justice of India Dipak Mishra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud observed the following :

“ The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.1 We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC). ”

This case decriminalized adultery and gave a pioneering judgement on 27-09-2018  which declared section 497 IPC as unconstitutional. It made adultery no longer a criminal offence but it still is a strong ground for divorce. Undoubtedly, this historic verdict of Supreme Court is based on securing dignity of people, obviating punishment when civil remedy like ‘divorce’ is available to the aggrieved husband, thus dispensing with this post-millennial archaic law.

(4.5) Parappa Sidhram Karlati v. State, 1980 Cr LJ (NOC) 85 (Kant.).

In this case it was held that where there exists sexual relations between the accused and someone’s wife and while she did  not resist being taken away by the accused to his house and voluntarily accompanied him to be a participant in sexual intercourse with him then the accused will not be convicted under Section 497 or Section 498 of the IPC, but would be convicted for the offence of abduction under Section 366 of IPC.