Adultery Law in India

    Edited by: Vaani Garg

    India's adultery law is crudely anti-woman
    Adultery Law in India

    Introduction

    Adultery is physical relationship between a married person and another person who is not their spouse. Section 497 under the Indian Penal Code stated the offence but was later struck down by a five judge bench in September 2018.

    Section 497 stated 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 a case, the wife shall not be punishable as an abettor.

    The offence of adultery is committed by a third person against a husband. The offence was termed to be unconstitutional by the judges in the case of Joseph Shine v Union of India, in which Joseph Shine, an Indian businessman living in Italy challenged the section 497 calling it arbitrary and discriminating towards men and women.

    Reasons for striking down the provision

    1. Women are treated as a property of men

    Upon reading sec. 497, it is clear that it portrays that the woman are treated as possessions of the man and the offence of adultery will not be considered if there is a consent of the man. The judgement conveyed that a man and a woman are equal and are to be given the same status in the society.

    2. Unconstitutionality of the provision

    The provision violates article 14, as it treats men and women unequally, as woman are not subject to prosecution for the offence and women are not allowed to prosecute their husbands for adultery. The provision also violates article 15, as husband is considered as an aggrieved party if the wife is involved in the offence, whereas this is not the same when the husband is involved in the offence. This provision violated article, as the dignity of the concerned person is affected by revealing private information in the open.

    Other cases that challenged the provision

    The first case that challenged the provision was Yusif Aziz v. State of Bombay, in which the petitioner contended that the provision is violative of Article 14 and 15. The court held that the woman can be the victim in the offence of adultery and the man is considered to be the seducer.

    The second case was Sowmithri Vishnu v. Union of India, in which it was held that the women need not be included as an aggrieved party. The court also held that the husband cannot prosecute their wives for the offence of adultery.

    The third case was V Revathy v. Union of India, the court held that the provision does not violate any constitutional provision as the ambit is limited to men. It was also held that, women are not included for prosecution is for social good.

    Adultery as a ground for divorce

    The former Chief Justice of India while delivering the judgement for striking down the adultery provision from IPC, said that, “Adultery can be a ground for civil issues like dissolution but it cannot be a criminal offence”.

    Presently, adultery is not considered as an offence in India, but it is considered as a ground for divorce upon the fulfilment of the following conditions:

    1. There is an act of sexual intercourse outside marriage
    2. The act was voluntary

    Under Hindu Law, the aggrieved party can file for divorce under Section 13(1) of the Hindu Marriage Act, 1955. The petitioner has to prove that he/she was involved in an adulterous act.

    Under Muslim Law, it is a punishable offence to be involved in an adulterous act, the husband or the wife can seek divorce through the method of judicial divorce, if proved of an adulterous act.