Committing Adultery. Legally.

Introduction

For a layman, adultery means having illegitimate relationship(s) with the opposite sex (or even the same sex, but let’s leave that for some other day). However, since this is the Indian legal system we’re talking about, it shouldn’t appal you to know that it has a much more complex (read: absurd) meaning than that.

The Law governing Adultery in India

According to Section 497 of the Indian Penal Code (IPC), 1860:

 “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.”

Therefore, following elements must be determined in order to prove adultery –

  1. The adulterer must have had sexual intercourse with the wife of another man.
  1. The sexual intercourse should not amount to rape i.e. the woman’s minimum age should be 16 and must have had sexual intercourse with the man wilfully.
  2. The accused must have knowledge of the marital status of the woman. It may also be noted that mere knowledge of the existence of the husband would be sufficient to prove knowledge. His identity may not be known to the accused.
  3. The sexual intercourse done by the adulterer must have been without the consent of the husband.

On a more careful inspection of the law, the following (rather amusing) corollaries emerge:

  1. The husband cannot prosecute his unfaithful wife but can only prosecute the man she had sexual intercourse with.
  2. Adultery can only be committed by a man and not by woman (sad, but true). The wife is not guilty of the offence.
  3. Sexual intercourse of a married man with a widow or an unmarried woman is not penalized.

And here comes the final straw-

Adultery Laws in IndiaHowever, there’s some good news too (kind of). Keep in mind that adultery in Marital Law (under Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Indian Divorce Act, 1869) addresses the wife as possible adulteress too. In the matrimonial Court, when a Petition is filed for divorce on the ground of adultery, the main relief is sought against the spouse and not against the adulterer i.e. In Marital Law a wife can also commit adultery and is a possible ground for divorce. So there you go. A man can still opt for judicial separation or divorce from an adulterous wife even though he cannot criminally prosecute her. Furthermore, a woman can opt for the same; even from the husband in corollary no. 4 (above), even though she also cannot criminally prosecute him or the adulteress.

Now before you vent your spleen and go around bashing our ‘public-servants’ for creating such naïve laws, remember that these laws were drafted into the Indian Penal Code, 1860 under the British Rule in India. The prevailing conditions at the time were such that women were looked at as being weak and as the mere property of a man. Nonetheless, there’s no hiding the fact that today the situation has changed for the better and women at par with the opposite sex.

It is quite evident that present laws need to be amended and hopefully, one day, they will be. Till then, victims of adultery tormented by current laws may enjoy my sympathy; At least the future ones are spared of the shock they would’ve received on hearing this from their lawyer, instead of here.

 Article by-

Anchit Tripathi
Creative Designer, Unus Unorum (Magazine) 
Student, II Semester,
Ram Manohar Lohiya National Law University, Lucknow. 
Picture courtesy- livingstoncoc.wordpress.com

By Anchit Tripathi on February 11, 2012 · Posted in Criminal Law

13 Comments | Post Comment

sumant says:

marvellous , stupendous.
gud work ..
keep it up

Posted on February 11th, 2012

The Reader says:

A very good article indeed !
Nice analysis and interpretation.
Keep it up !!

Posted on February 11th, 2012

Anurag says:

eye catching… good work!

Posted on February 12th, 2012

Paresh Nath says:

You could have added latest case where the woman whose husband was prosecuting the adulteror wanted to become co-accused but the court, I think the Supreme Court, refused saying that the law as it stands today is just and moral. It is a case where the woman after leaving the husband started living with another man and husband filed a criminal complaint against the man.
The court discussed the issue at length.

Posted on February 13th, 2012

Dr. G. K. Goswami, IPS says:

Hi Dear Anchit,
Congratulation for an articulated assessment of legal issue on adultery. In fact as you rightly pointed out that IPC is a Colonial Legal Framework when female were having low status in the society in terms of mental, physical or economic perspective. The wife was a property to her husband and he got legal right u/s 497 of the Indian Penal Code (IPC), 1860 to get a criminal case registered against the perpetrator on the similar pretext of theft of his property. So in real term section 380 IPC was for theft of goods and chattels and section 497 IPC was for stealing his sexual asset indeed. So there was no human right of females on her sexual liberty. Her consent to satisfy her biological or mental need has no meaning. She is treated like an senseless article in the bedroom to play with.
In fact, Indian Legal System need an overhaul to meet the current expectations for smooth running of the society. We need to design Laws for Indian soil and just copying them from here and there.
Thnx once again, dear for your nice article.
Dr. G. K. Goswami

Posted on February 24th, 2012

Anchit Tripathi says:

Dear Paresh,
Thanks for your feedback. The main objective of writing this article was to make people aware of the concerned law and it’s faults, briefly. Hence, I didn’t go into more detail. Thanks for suggesting the case though, as I intend to research more about the issue.

Posted on February 25th, 2012

Anchit Tripathi says:

Dear Dr. G. K. Goswami,
I strongly support your sentiments. There’s definitely the need to ‘repair’ such practically defunct laws. Thanks for expanding upon women’s plight in the colonial era. I definitely learned something new today 🙂
Let me thank you for reading my article and taking the time to comment upon it. Thank you.

Posted on February 25th, 2012

Anchit Tripathi says:

@Sumant, The Reader and Anurag
Thank you for your appreciation 😀

Posted on February 25th, 2012

mankum says:

yes society is changed, therefore women is not property of men but sdultery must be a criminal offence by itself a cause of breaking down the family institution. under 497 IPC women must be treated qually criminal for the crime just same as men. and both can use adultry as crime for the outsider/men or women to get punishment.

Posted on August 29th, 2012

naseemarajsekhar says:

I think you are too young to understand about the feelings of women.No women on earth can go for an adultery without any cause.,that too in INDIA.Try to analyse the status of women in haryana rajasthan panjab etc.,80 Percent of women still not even dare enough to raise their voice against the cruelty by husband,inlaws,even her own father.

Posted on November 22nd, 2012

Vipul Keniya says:

consider below comment….not earlier one

What if sexual intercourse has been mutual consent between unmarried boy and girl and then girl claim to marry her on grounds of pregnancy.

Posted on November 23rd, 2012

subhaish says:

Dear Anchit,

First of all i wish your all success in life . The article you have written which consists of a single section of Indian penal code but the issue has some bigger perspective.
,Therefore i simply think rather i believe that in the present socio economic situation of our society a man as well as a women may have a desire to indulge more than one relationship whether being married or not and therefore like section 498A this section needs to be amended immediately just to control the abuse of these penal provisions.

Posted on November 26th, 2012

Swaraj says:

Yes.I agree.we need changes in our legal system.the colonial age has passed away. Now we are leaving in a democratic country. Our constitution has recognised the right to equality to all its citizen. So we cannot say that woman is a property of man. If adultery is termed as a crime then we should think about the matter that the marital right of one spouse is violated by the other and same should be termed as adultery if the act is done by a husband with an outsider.

Posted on October 9th, 2013