Introduction to the Law on Adultery in India

Meaning and History:

Adultery is derived from the Latin word ‘adulterare’, wherein ‘ad’ means ‘to or towards’ and ‘alter’ means ‘to change something, make different in some way’. For the purpose of better understanding, adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex, not the other spouse.

The law on adultery is not of recent origin, it has been unsparingly condemned right since the age of great ancient laws of Manu. However, it was only viewed as a violation of a husband’s rights.

In fact, in the first draft of the Indian Penal Code by Lord Macaulay in 1835, the provision did not punish either the man or the woman for adultery, as Lord Macaulay was of the opinion that the societal and economical dependency of woman on her husband did not prove it beneficial for her to punish the adulterous man. He observed that “There are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives.” By, this he referred to the practice of child marriage and polygamy.

The Law Commission of India, under the British Rule declared adultery a crime committed by men. The law on adultery was, thus brought about in the year 1860. Subsequently, in view of the changed position of women in the society, the 42nd Law Commission in 1973, suggested that both genders under the adultery law be treated guilty and advised that women be brought within the scope of the law.

However, clearly no action was taken on this suggestion.

Statutory Provision on Adultery in India: 

Section 497 of the Indian Penal Code:

The law on adultery is provided under Section 497 of the Indian Penal Code (IPC). Unfortunately, the shackles of archaic laws bind Indian Penal Code, like many other laws introduced by the British.

The law on adultery in India 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, 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.”

The main ingredients to prove an act of adultery are as follows:

1) Sexual intercourse is to be committed with a wife of another man – Naturally, it is mostly difficult for the prosecution to prove the existence of sexual relation between two people, given the privacy of such actions. Therefore, more often than not, the fact of adultery is derived from the totality of the circumstances. Circumstances, that cannot be universally defined but they should be such that it leads the guarded discretion of a reasonable unjust mind to that conclusion.

As stated in the provision, only an outsider man could be sued for an offense of adultery. A married woman was not given an option to sue the outsider woman, for violating the sanctity of her matrimony. The law was visibly and explicitly discriminatory for a specific sex.

2) The accused must have knowledge that woman is married – The knowledge that woman is married does not mean that the accused must know who the husband is, but the fact that he has knowledge of her marital status proves the presence of mens rea or criminal intent.

3) The sexual intercourse must be without the consent of the husband – Following the principle of volunti non fit injuria, if the husband has at any point, consented to the act, he cannot later turn away from the fact that he was a willing party to the act. Such consent can be expressed or implied, or even before or after the act or consent after the act amounts to condonation of the act. So, the intent of the drafters was not to punish any relationship outside of the marriage, but to reprimand the wife for any infedility without the permission of her husband.

4) The sexual intercourse must not amount to rape – Adultery means sexual intercourse between two consenting adults. Hence, the consent of the married woman is of paramount importance. In the absence of consent, the accused shall be guilty of the offense of rape.

Plainly, one can derive from the ingredients explicated above that, the provision is particularly bias towards a certain sex as a married man can be accused of adultery, but the married woman involved in the same act can have no action taken against her. Moreover, more reproachably, by keeping the law biased and requiring the consent of the husband to be one of the key ingredients, what the law really did was to treat the wife as the property of her husband, on whom he could regain control by taking action against the adulterous man.

Section 198 of the Criminal Procedure Code:

Section 198(1) provides the conditions to be fulfilled for one to file a complaint of adultery against another and in doing so, Section 198(1) and (2) provide that only a husband or in the absence of husband, someone acting on his behalf can file a complaint. Section 198(1) expressly disqualifies a woman from filing a complaint.

Case Laws on Adultery:

(A) Yusuf Aziz v. The State of Bombay

This was one of the earliest cases filed challenging the constitutional validity of the provision of adultery. Mr. Yusuf Aziz, who was accused of adultery challenged the provision as it treated men and women unequally thus violating Article 14 and 15 of the Indian Constitution.

However, the court held that even though there can be no discrimination on the ground of sex, in general, the Constitution itself provides for special provision in case of women and children. Therefore, the two articles read together validate Section 497 of the IPC.

(B) Sowmithri Vishnu v. Union Of India & Anr

This case came before the Supreme Court in 1985, where in a divorce petition was filed against the wife on grounds of desertion and adultery and one Mr. Dharma Ebenezer under Section 497 for the offence of adultery.

Thereafter, the petitioner wife had filed a writ petition that Section 497 must be quashed on several grounds including the primary ground that the provision is discriminative to the extent that it does not confer upon the wife the right to prosecute the woman with whom her husband has committed adultery. Therefore, the provision violates Articles 14 and 15 of the Constitution.

However, the court in this case held that the definition of adultery in itself provides that only a man, and not a woman can commit the offence of adultery. The argument of the petition would mean to amend the definition of adultery, which would lead to striking down of various provisions of the penal code. It further observed, that such arguments are related to the policy of law and not its constitutionality and that restricting the class of offenders to men under definition of adultery does not infringe the provisions of the Constitution.

(C) V.Revathi v. Union of India

In this case the constitutional validity of Section 198(1) and 198(2) had come been called into question and the court again had to answer if the right to prosecute the husband that is not extended to the wife of the adulterer is a discrimination on the grounds of sex.

The court held that under the law, the aggrieved husband can also not file a case against his disloyal wife, he can only do so against the husband with whom the wife had an adulterous relationship. As between husband and wife, by not allowing them to file a case against each other, what the law does is to permit them to make up or break up their matrimonial tie rather than to drag each other to the criminal court. This also saves the children from the trauma of seeing one of their parents jailed.

However, by virtue of Section 198 of CrPC and 497 of the IPC, the wife can neither file a case against the adulterous woman nor her own husband, therefore leaving the wife with no resort to take any action.

Other efforts taken to make the law on adultery gender neutral:

The 42nd Law Commission Report in 1971 suggested that the wife who has sexual relationship with anyone other than her husband should also be made punishable under the provision. Unfortunately, the suggestion to modify the provision was not accepted by the legislature.

Later, in 2003 the Malimath Committee also suggested that similar treatment be meted out to both men and women in the cases of adultery. The Committee stated in its report that “The object of Section (Section 497 of the IPC) is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”

Further, in 2007 the Centre asked the National Commission on Women to review the law on adultery that discriminates on the basis of gender. However, the Commission struck down this recommendation and observed that women should continue to be protected under the law, as they are always the victims and not the perpetrators. Also, the offense of adultery should be made a civil offense instead of a criminal one.

The landmark case before the Supreme Court that struck down the law on adultery:

Joseph Shine v. Union Of India

This 158 years old law came into scrutiny before the Supreme Court of India again after a writ petition was filed under Article 32 of the Indian Constitution challenging the validity of Section 497 of IPC.

Issue:

The main issue that the court answered was whether the law on adultery violates Articles 14, 21 and 15(1) of the Constitution.

Violation of Article 14:

The court noted that the Section grants relief to the wife by treating her as a victim. It observed that the court needs to see whether an affirmative right granted to a woman can go as far as treating her as the victim, in all circumstances at the peril of her husband. It stated that a time has come when woman is equal to man in all fields and this provision seems quite archaic. As society progresses, new generation of thoughts spring and hence this case has been placed before the constitutional bench of the Supreme Court.

The court examined the case laws discussed above in detail and proceeded to observe that Section 497 provides that when there is consent of husband, there is no offense, which treats women as a chattel. It treats her as subordinate to man and totally subservient to the will of the master, which is a reflection of the social dominance that was prevalent when the penal provision was drafted.

Further, the court observes that Section 497 does not cover an extra marital affair with an unmarried woman or a widow, making the man criminally liable in restricted circumstances. Also, Section 198 of the CrPC considers the husband of the married woman as the aggrieved person and in the absence of the husband, some person who has the care of the woman on behalf of the husband at the time when such offence was committed. However, it totally skips considering the wife of the adulterer as the aggrieved person. Additionally, it allows the husband to treat the wife as he likes which is arbitrary and disproportionate.

The provision protects the woman but does not treat a woman as an abettor, it does not allow the woman to file a criminal case against the husband, while allowing her to take civil action, which can be taken by the husband as well. Therefore on the whole, the court notices that on one hand it protects the woman, but on the other hand it does not protect the other woman, having no logic and it is therefore, arbitrary and violates Article 14 of the Constitution.

Violation of Article 21:

The court extensively discussed various case laws and provisions surrounding the law on adultery and Article 21 of the Constitution and observed that when the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it depends on the parties how they deal with the situation. Some may exonerate the situation, while others may file for divorce. Either ways, this is absolutely a matter of privacy at its pinnacle. Any theory of punishment, whether deterrent or reformative will not rectify the situation as it would not instil commitment in the relationship.

An act of adultery can either be the cause of an unhappy marriage or the result of an unhappy marriage and treating adultery as a criminal offence would be tantamount to punishing people who are unhappy in their marriage and a law punishing adultery would indiscriminately punish two persons whose marriage has been broken down as well as persons whose marriage has not been broken due to this act of adultery. Therefore, any law on adultery is bound to be arbitrary and a retrograde step, which is why many countries including China, Japan, Australia, certain European countries etc, do not treat adultery as a crime. The law on adultery, hence violates Article 21 of the Constitution.

Further, the court held that since we have held Section 497 to be unconstitutional, it is appropriate to hold Section 198 of CrPC, which provides for procedure of filing a complaint in relation to the crime of adultery as unconstitutional.

Violation of Article 15(1):

The court studies various case laws and provisions in relation to Article 15 and discerns that the object of Section 497, as pleaded by the State to be, to protect the sanctity of marriage is not in fact the object of Section 497 at all. Sanctity of a marriage can be destroyed even when a husband has extra marital affair with an unmarried woman or a widow. Also, if the husband consents, offence is not committed, which shows that the object of this Section is not to protect the sanctity of marriage, but to protect the proprietary right of a husband.

Further, Section 198 of CrPC is also blatantly discriminatory as it allows only the husband or someone acting on behalf of the husband to file a complaint against another man for this offence.

Decision:

Therefore, the court held that these provisions violate Article 14, 15(1) and 21 of the Constitution. Hence, Section 497 of the Indian Penal Code, 1860 and Section 198(1) of the Criminal Procedure Code are ordered to be struck down as invalid.

Conclusion:

The law on adultery was an archaic law drafted to fit the prevailing circumstances in the society during those times. The legal fraternity has fought a long battle to bring this law in consonance with the changing stature of women in the society. It comes as a relief to finally have the Supreme Court decide that the law on adultery is not only arbitrary but also illogical, and order for it to be struck down. On a positive note, the noticeable activism on gender discrimination over the years and the innumerable achievements of women in various fields in today’s world is to be given quite a bit of credit for this law to have been taken into cognizance by the Supreme Court of India.

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