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 –
- The adulterer must have had sexual intercourse with the wife of another man.
- 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.
- 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.
- 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:
- The husband cannot prosecute his unfaithful wife but can only prosecute the man she had sexual intercourse with.
- Adultery can only be committed by a man and not by woman (sad, but true). The wife is not guilty of the offence.
- Sexual intercourse of a married man with a widow or an unmarried woman is not penalized.
And here comes the final straw-
- Therefore, a married man having sexual intercourse with an unmarried woman or with a married woman with the ‘approval’ of her husband and her wish is not committing adultery (not legally anyways)!
However, 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.