---CHAPTER 1 - INTRODUCTION
---1.1 Statement of Problem
There has been recurrent, conflict between the liberties of the individual and security of the society. It is well reflected in the area of sexual behaviour as it becomes difficult to reconcile competing claims of the liberty of the individual and the security which so far have defied final solution. It gets further complicated in a developing, multilingual, heterogeneous and plural society like India where conflict between them are multidimensional and naturally sharper. It threatens to disturb the dynamic social equilibrium of the society.
Society is a dynamic and living concept as it grows with the passage of time. It is regulated by various forced which set up a dynamic equilibrium in the society. Besides this the social values keep on changing with the passage of time and place to place. An act which is an offence today may not be an offence in the past and the vice-versa. This poses constant problems in the society.
In many jurisdictions adultery is viewed as an offence injurious to public morals and mistreatment of the marriage relationship. It jeopardises the institution of marriage. Though historically adultery has been regarded as a very serious and heinous crime, but the modern society is afflicted by many new social conditions which have led to a liberal view about it. The processes of urbanization, industrialization and population explosions have brought about new tensions, problems and changes in the society, which have affected the institution of marriage and aspects related to it.
Thus, it becomes necessary to inquire the new approaches and developments that have taken place with regards to the offence of adultery which affects directly affects the institution of marriage yet it is penalised under the Indian Penal Code.
1.2 Aims and Objective of the Study
The chief objective of the work is to study various facets related to adultery in and around the world. On critically examining the matrimonial, criminological and constitutional aspects of the chosen problem, it will be easy to answer the question, whether the offence of adultery should be retained or abolished in India.
The study has theoretical and academic importance as well as practical utility. Indian society is developing rapidly to achieve the developmental goals which western societies took centuries to achieve. Thus, it is becoming increasingly open because of the changes taking place in sexual behaviour, attitude and sexual values in the society.
The work proceeds with the hypothesis that the existing legal provisions on adultery i.e. section 497 IPC is not satisfactory. It is out of tune with the time and new wave of thinking on sexual matters. The study aims to search solutions for the following questions raised:
I. What should be the definition of the term adultery?
II. What are the different causes and consequences of adultery?
III. Whether the offence of adultery should be abolished or the man and woman at fault should be punished equally?
IV. Whether the wife of adulterer should be given right to take action against husband in adultery?
V. What remedial measures should be taken to check adultery in society?
1.3 Research Methodology
The research method used in the whole project report is doctrinal including primary and secondary sources. Literature from various articles contributed by individuals and agencies can lead to different conclusions all of which can be challenged on different grounds. Besides these, other sources like Law Commission Report, Recommendations by Malimath Committee and National Commission for Women, Working Papers etc. have also been resorted to. The method of writing is analytical and comparative. The literature on the subject is critically analyzed and comparison is made with the law prevailing in other countries on the
subject. However, the constraints of time and finances have added to the limitations of the study and thus the doctrinal method of research has been used.
Font Size – The project is in Times New Roman font size 14 for Main Headings and 12 for
other parts of the study with 1.5 spacing. The footnote is of size 10.
1.4 Chapterization Plan
The study has been conducted under the following chapter scheme:
Chapter – 1 Introduction, articulates the problems for the study in the area of matrimonial and criminological aspects of adultery. The statement of problem articulates the research problem, rationale of the study and aims and objectives of the problem. It also describe the research methodology employed.
Chapter – 2 Conceptual Perspectives, deals with the various definitions that have been given to the term adultery and its origin. It gives an historical account of adultery during different ages.
Chapter – 3 Causes and Consequences of Adultery, deals with the different factors that affect the commission of adultery and different circumstances. It also discusses certain consequences thereof.
Chapter – 4 Analysis of various Laws relating to Adultery in India, which provides analytical and descriptive study of adultery under matrimonial laws, penal laws and constitution.
Chapter – 5 International Perspective, in which comparative study with the laws prevailing in other countries has been done.
Chapter – 6 Recent Issues and Debates regarding adultery. The different views that have been raised in the society regarding female criminality and decriminalising adultery has been discussed on the basis of the reports and recommendations of the Law Commission of India, Malimath Committee and NCW.
Chapter – 7 Concluding Observations, embodies the conclusion that has been arrived at after undertaking the detailed study on the subject in the previous chapters.
---
---CHAPTER 2 - CONCEPTUAL PERSPECTIVES
---Sexual relations have always been a matter of curiosity in society. The difficulties have also been experienced with regard to putting the rider on legitimate sexual activities. The problem might have been in the society since its inception but with the emergence of family institution, it might have assumed debatable dimensions. As the society progressed and advances were made in science and technology, many societal institutions including marriage have come under attack.
Latest mechanization, urbanization, industrialization and population explosion have virtually brought about disintegration of family institution. It has created serious problems so far as the life is concerned. There are many known forms of social delinquencies such as unnatural sex, unmarried motherhood, abortion, rape, kidnapping, enticement, abduction, adultery, incest, indecent assault, etc. There is upward trend about these sexual offences in the society. The areas of legitimate sexual activity have considerably narrowed down because of increasing number of enactments and judicial pronouncements restricting sexual freedom. Since its inception, the law on adultery in India has been subject to controversy with regard to several fundamental issues.
This chapter takes into account adultery in its conceptual perspectives and general aspects.
2.1 Meaning and Nature of Adultery
Adultery is the indulgence in voluntary sexual intercourse of a married person with someone other than his/her spouse. It is the intentional violation of the marital bed and the offence of incontinence by those persons entered into the bond of marriage. However, such legal definitions of adultery vary from one country to another and statute to statute, while adultery is voluntary sexual intercourse between a woman and a man who is not her husband in some places, it is voluntary sexual intercourse between a woman and a third party without her husband’s consent in other places. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is
when a woman has voluntary sexual intercourse with a third person without her husband’s consent.
2.1.1 Definition of Adultery
Adultery is defined as the sexual intercourse between a married person and a person other than the spouse outside the marriage bond. Hence, it directly hits the institution of marriage. Nature of adultery is little confusing because of uncertainty in the definitional dimensions. The point of uncertainty is whether both parties to the adultery should be held liable for all purposes, matrimonial as well as criminal or one party may be exempted from the liability keeping in view the requirements.
Etymologically, the origin of the term is traced from the Latin word, ‘adulterare’ which means to commit adultery. However, in order to understand the definition and true nature of adultery the following definitions are being studied:
According to Webster’s Dictionary, it means voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband.1 It also says that adultery means the sexual intercourse of two persons either of
whom is married to a third person. It makes the word adultery synonymous with unfaithfulness or unchastity. It gives another meaning as, any lewdness or unchastity of act or thought, as in violation of the divine commandments.2
According to Black’s Law Dictionary, adultery means sexual relations between a married person and someone who is not that person's wife or husband.3
According to Encyclopaedia Britannica, adultery refers to sexual relations between a married person and someone other than the spouse.4 It also says that written or customary prohibitions
or taboos against adultery constitute part of the marriage code of virtually every society.
1 Webster’s Comprehensive Dictionary, 21 (1995), available at
http://www.merriamwebster.com/dictionary/adultery?show=0&t=1302444990 (visited on 12.03.11 at 12:12 a.m.)
2 The New International Webster’s Comprehensive Dictionary of The English Language, Trident Press
International, 2003.
3 Black’s Law Dictionary, 8th Ed., 2004
4 Encyclopedia Britannica, 111 (2002, 15th Ed.), available at
According to Juris Secundum, it is defined as an offence against the marriage relation, but is more specifically defined as sexual intercourse between a married man and woman not his wife, or between a married woman and a man not her husband.5
Adultery is an act of voluntary sexual intercourse (which need not be completed), between two persons who are not married to each other, but one or both of whom are, at the time of the act, married to a third person.6
The act of adultery leads to civil as well as criminal consequences because it has been made a ground for seeking divorce and has also been criminalised under the penal laws. Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed and men were not heavily punished.
In India the offence of adultery is punishable under Section 4977 of the Indian Penal Code
(IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors.
2.1.2 Nature of the Offence of Adultery
The nature of adultery has created some dilemmas to the policy makers. The question is whether a single act should be regarded as sufficient to constitute adultery or if a person is living in adultery should be regarded as adultery. Prior to 1976, in India the unamended Hindu Marriage Act, 1955 had used the expression ‘living in adultery’8. But later on the expression
was dropped in preference to the present phrase. However, the criminal law of India has not 5 Corpus Juris Secundum, 410 (2003)
6 K.J. Aiyar, ‘ Judicial Dictionary’, LexisNexis Butterworths, New Delhi, 14th Ed., 2007, pg. 46
7 Section 497 – Adultery - 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 rap, 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 be punishable as an abettor.
8 Section 13 (1) (i) – Divorce - (1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other
required the proof of adultery in such a manner i.e. ‘living in adultery’. A single act of adultery is punishable under section 497 of IPC. Some offences are likely to be committed for omitting adultery and it may also be responsible for provocation in committing serious offences, such as culpable homicide, murder etc.
It is amorphous in nature. It is a civil as well as criminal offence. It involves sexual intercourse with a married woman with her consent. Consent makes a difference between adultery and rape. It is a sin and different from other sexual offences. With the passage of time, a lenient attitude is emerging in the society. Though it involves many psychological issues such as emotional problems, social prestige, status etc. but the Indian society is developing a tolerant attitude due to numerous developments.
Adultery is not abduction under the statutory definition. It simply means taking or detaining a female for the purpose of marriage, sexual intercourse, concubinage or prostitution under the specified conditions.9
Under Indian criminal law the married woman who is party to the adultery cannot be punished even as abettor. The reason, presumably may be social and economic backwardness of woman an peculiar Indian circumstances in which they have been placed by the society over the ages. In Sowmithri Vishnu v. Union of India10, the Supreme Court observed:
“The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.”11
Thus it seems that the basic condition of the Indian women and society’s attitude towards females prohibits the courts to punish her even as abettor.
Adultery is regarded as an anti-social and illegal act and any person of good moral would not like this type of activity to be committed in the society. In this connection an observation of Justice Bhat, made in Hatim Khan v. State of J & K12, deserves to be quoted:
9 Paripuranand Verma, ‘Sex Offences in India and Abroad’, B.R. Publishing Corporation, New Delhi, 1st Ed.,
1979, pg. 174
10 AIR 1985 SC 1618 11 Id. at 1621
“Adultery by itself is an anti-social and an illegal act; naturally any peace-loving citizen and any person of good morals would not like that adultery should be permitted to be indulged in before his very nose.”13
Similarly it may lead to destruction of marriage. Robert P. Blood observes that adultery is the main factor leading to break ups in family life. He observes:
“The varieties of adultery are endless. Sometimes it is a kind of pre-marital intercourse, the physical expression of new love which has already superseded the old.”14
Thus, criminologically adultery may be defined as illicit sexual intercourse between a married woman, who has a living husband, and another man. It is immaterial whether the man involved in the commission of the act is married or unmarried. The sexual act is committed with the consent of the woman. According to matrimonial laws it means sexual intercourse between a married person and another person other than a spouse. The element of immorality and harmful nature of the act criminalise the human conduct in case of adultery.15
2.2 Origin and History of Adultery
Adultery as a sin has a long chequered history. The offence intimately associated with marriage necessities to look into it from historical perspective. During ancient Hindu period, it was prevalent. Mohammedan period saw an upsurge as there was an open show of sexual lust. The rulers maintained ‘Haram’ to satisfy their sexual lust and enjoyment. In English period also, offences against sex including adultery were prevalent and increased following the increasing impact of western liberal values, urbanization and industrialization. The changing moral values introduction of western standards, cessation of adultery and homosexuality between consenting adults as offence in some countries are largely responsible to increasing incidents of adultery and other sexual offences. This section of the chapter analyses the problem from historical perspective under the eras of time.
13 Id. at 58
14 Robert P. Blood, ‘Marriage’, The Free Press, New York, 2nd Ed., 1969, pg. 394
15 S. M. A. Quadri, ‘Ahmad Siddique’s Criminology: Problems and Perspectives’, Eastern Book Company,
2.2.1 Hindu Period
Marriage in India has been regarded as sacramental in nature. The sanctity attached to husband and wife brought about by the marriage and inseparability of their relationship was the firm foundation on which social life was construed.16 Manu recognised eight forms of
marriages brahma, daiva, arsa, prajapatya, asura, gandharva, raksara and paisaca and according to him everyone should get married. He says:
Just as every creature lives by air, so the order of life exist by the support of the house holder: a wife is the main source of dharma, artha and kama and so an unmarried person, irrespective of varna to which he belongs, in unfit for the discharge of his duties.17
He attached great importance to the women of the house and she should be respected by everyone. According to Dharmshastra and Manu, the home and the family are the bedrock of the society and woman is a person on whom the sanctity of the home and household rests. The wife is the home and should not be exposed to the rough and independent life. She should always be taken care of by someone – by her father in childhood, by her husband in youth and by her son in old age.18 This means that emphasis was on subordination and dependence of
women. She was to grow under the impression that she was not fit for independent existence. The Mahabharta also referred to promiscuities in marital relations of ancient India. It described how Svetaketu enjoined that there should not be any laxity in conjugal relations.19
The perusal of the marriage hymn showed that the institution of marriage has already been recognised in the society. The marriage tie was a binding force throughout the life. Monogamy was the rule but polygamy was also practised by the rich and riling class. Polyandry was not known in that period and marriage was not treated as secular contract but was a religious ceremony which guided the husband to treat his wife as God given gift. It had exclusively sacramental nature.
16 M. Rama Jois, ‘Ancient Indian Law – Eternal Values in Manu Smriti’, Universal Law Publishing Co. Pvt. Ltd,
2007, pg. 38
17 R. B. Pandey, ‘ Hindu Sanskaras – Socio Religious study of Hindu Sacrament’, Motilal Banarsidas, Delhi, 2nd
Ed., 1976, pg. 153
18 V. Raghvan, ‘The Manu Samhitas’, in The Cultural Heritage of India, Calcutta, 2nd Ed. 1959, pg. 354 19 Id. at 358
Even from the Vedic age, the standard of female mortality appeared to be high, the chastity of the woman was emphasised and it was to be protected and respected. The degree of punishment depended upon the classes of offences.20
According to Buddha, all the sufferings are due to kama which brought about one’s bondage. It binds the world and there is no other bond. It neither is satisfied nor is extinguished by the enjoyment of the objects. It grows stronger with the passing of day. He identifies kama with fire. Like fire is never satisfied with the amount of fuel, kama cannot be satisfied with any kind of objects. When the kama inside the heart ceases, then the moral becomes immoral. Ancient sages divided sins into two classes as, mahapatakas (moral sins) and upapatakas (minor sins). The former were the killings of Brahmna, drinking wine, stealing and adultery.21
In ancient India the sin of adultery considered deadly and treated very severely. The unlawful coming together of a man and woman for sexual enjoyment constituted strisangrahna or adultery.22 The punishment for adultery varied from death sentence to different types of
corporeal punishments. 2.2.2 Medieval Period
In medieval India, polygamy was prevalent in different classes of society. The travellers like Alberuni, Hamilton who visited India during this period found that the Hindus take one wife and never divorce her till death except for the case of adultery, but for Mohammedans the law permitted to have three or four wives. The Sikh Gurus and social reformer treated adultery as most heinous crime.
During this period Ala-ud-din issued orders, providing punishments for adultery, such as, stoning to death, castration, cutting of nose etc. Jahangir also admired the fidelity of Hindu women who would not allow the hand of any unlawful person to touch the skirt of their chastity and would rather perish into flames.23
2.2.3 English Period and Post-Independence Period
20 J. D. Mayne, ‘A Treatise on Hindu Law and Usage’, Nabu Press, 13th Ed., 1991, pg. 93
21 Dinesh Chandra Bhattacharya, ‘Penances and Vows’, in The Cultural Heritage of India, Calcutta, 1993, pg.
386
22 M. Rama Jois, ‘Legal and Constitutional History of India’, Universal Law Publishing Co. Pvt. Ltd., 2010, pg.
374
23 P. N. Chopra, ‘ Some Experiments in Social Reforms in Medieval India’, in The Cultural Heritage of India,
When East India Company came to the country, the substantive criminal law was Mohammedan Criminal Law and cases were tried and decided according to it. In 1860, this law ceased to be the law of the land and was replaced by the Indian Penal Code, 1860, which is still the law of the land. Section 497 of the code provides punishment for adultery. The maximum punishment is imprisonment for five years of either description or fine or both. The action is initiated on the complaint of the Code of Criminal Procedure, 1973 i.e. section 198. The guilty wide is punishable neither as offender nor as abettor.
However, it may be noted after independence offences against women have increased and adultery is not exception to this. It can be well demonstrated by the fact that male prostitution is increasing day by day. Women have become more liberty oriented and the population of working women is also increasing.
2.2.4 Miscellaneous Aspects regarding Origin
It deals with general history of the act of adultery that was prevalent around the world. Written or customary prohibitions or taboos against adultery constitute part of the marriage code of virtually every society. Indeed, adultery seems to be as universal and, in some instances, as common as marriage.
In the Graeco-Roman world we find stringent laws against adultery, yet almost throughout they discriminate against the wife. The ancient idea that the wife was the property of the husband is still operative. The lending of wives practiced among some savages was encouraged. The following passage of the Oration against Neaera, depicts the position of women. It reads as,
"We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children, and to be our faithful housekeepers.”24
In the early Roman law the jus tori belonged to the husband.25 A married man could have
sexual intercourse with an unmarried woman and could not be held guilty of adultery or any other crime. But the married woman was guilty of adultery whenever she had sexual intercourse with a man who is not her husband. It made no difference whether the man was 24 Available at: http://heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/hastlj38&div=12&id (visited on 18.03.11 at 12.32 p.m.)
25 Available at: http://www.roman-colosseum.info/roman-life/roman-punishment.htm (visited on 18.03.11 at
married or not. Therefore, there was no such thing as the crime of adultery on the part of a husband towards his wife.
In the Mosaic Law, as in the old Roman law, adultery meant only the carnal intercourse of a wife with a man who was not her lawful husband. The intercourse of a married man with a single woman was not accounted adultery, but fornication.26 Both the adulterer and
the adulteress were penalised with death.
In the Christian law this discrimination against the wife is emphatically repudiated. In the law of Jesus regarding marriage the unfaithful husband loses his ancient immunity if indulges in adultery. The obligation of mutual fidelity, incumbent upon husband as well as wife, is moreover implied in the notion of the Christian sacrament, in which is symbolized the ineffable and lasting union of the Heavenly Bridegroom and His unspotted Bride.27 But the
notion that obligations of fidelity rested upon the husband the same as upon the wife is one that has not always found practical exemplification in the laws of Christian states. Despite the protests of Mr. Gladstone, the English Parliament passed, in 1857, a law by which a husband may obtain absolute divorce on account of simple adultery in his wife, while the latter can be freed from her adulterous husband only when his infidelity has been attended with such cruelty "as would have entitled her to a divorce.28
The same discrimination against the wife is found in some of our early New England colonies. Thus, in Massachusetts the adultery of the husband, unlike that of the wife, was not sufficient ground for divorce.
The Code of Hammurabi (18th century BC) in Babylonia provided a punishment of death by drowning for adultery.29 In ancient Greece and in Roman law, an offending female spouse
could be killed, but men were not severely punished. The Jewish, Islamic, and Christian traditions are all unequivocal in their condemnation of adultery. The culpability of both men and women is more explicitly expressed in the New Testament and the Talmud than in the Old Testament or the Qur ān.ʾ 30 In strict interpretations of Islamic law, or Sharī ah, men andʿ
women are equally liable to harsh punishments for adultery including death by stoning. The
26 Available at: http://openlibrary.org/subjects/adultery_(roman_law) (visited on 28.03.11 at 1:37 p.m.) 27 Available at: http://www.newworldencyclopedia.org/entry/Adultery (visited on 11.04.11 at 12.30 p.m.) 28 Available at: http://www.newadvent.org/cathen/01163a.htm (visited on 11.04.11 at 12.30 p.m.) 29 Supra note 23
punishment still applied in the early 21st century in some countries, including Iran and Afghanistan.
The term adultery implies distinctively Judeo-Christian and Islamic attitudes toward marriage, many contemporary anthropologists are cautious about using it in comparative contexts. There are many societies in which marriage is considered a less-permanent arrangement and in which extramarital sex is less sternly condemned. In other words, attitudes toward adultery vary widely between cultures. Whereas the traditional Senufo and Bambara of West Africa, for example, tacitly condone the honour crime of killing the adulterous female spouse and her companion, among the Kaka in Cameroon a man may have sexual relations with the wives of certain relatives with impunity. Wife lending was long a part of Eskimo hospitality.
In Western Europe and North America, adultery was traditionally a ground for divorce. The diffusion of this principle, along with Western notions of egalitarianism and modern expectations of mutual emotional support in marriage, has resulted in unprecedented pressure for equal marital rights for women in traditional African and Southeast Asian societies. In many eastern European countries, adultery does not in itself constitute a ground for divorce; both partners must testify, under the principle of "general breakdown," that the offense resulted in the decline of those feelings of which marital unity is composed.31 The concept of
marital breakdown was gradually adopted in the United States during the 1970s, when many states began to permit "no-fault" divorces, which do not require an injured party to prove specific misdeeds. Most American states allow couples to divorce on either a fault or a no-fault basis, and many use no-no-fault divorce exclusively. The shift to no-no-fault divorce significantly reduced the importance of adultery as an element in divorce proceedings.
The forgoing analysis shows that adultery is extant in the society from ancient period or from times immemorial. The immoral act is intimately associated with the marriage and might have come into being with the dawn of this social institution. Historically speaking, it used to be visited with heavy punishments, but standards changed with the passage of time. Thus, societal response has varied from time to time and place to place.
---CHAPTER 3 - CAUSES AND CONSEQUENCES OF ADULTERY
---31 http://www.articlesbase.com/parenting-articles/adultery-and-its-long-history-2778748.html
In order to eradicate the evils of adultery, it is necessary to find out the causes of adultery. Adulterous relation, in fact, is also termed as cheating, criminal conversation, unfaithfulness, etc. The remedial measures can be suggested only when the causes of the problem are diagnosed properly. In this section of the chapter, the causes of adultery shall be discussed at length.
Sexual indiscipline in society may be the result of many factors. The traditional concepts are withering away in the society. Sexual values are rapidly changing. Population explosions, urbanization, industrialization, increasing disorganization of family and society, increasing population of working woman are largely responsible for sexual offences including adultery.
3.1 Various Causes of Adultery
The causes of adultery may be divided under the following heads: 3.1.1 Religious Causes
Religion in modern times has become and lost its effectiveness as a means of social control. The impact of western culture, liberal values, secular education, heavy craze for materialistic life and things have certainly given rise to increased sexual delinquency in the society. People have become less afraid of religious sanctions for violating religious directions. Thus, morality has lost much significance woing to modern sexy life. The basic reason is lack of religious education and disregard of moral values. All religious prohibit sexual lust. The Sermons of the Mount prohibits even a lustful look at a woman.
3.1.2 Biological Causes
Doing sex is biological need but the control of sex is desirable and in the interest of the society. Early physical maturity may be a case of delinquent sexual behaviour. Sexual impulses affect all persons whether male or female and the intensity of sex emotions in an individual depend on their personal traits and biophysical and factors.32 Some persons have
more strong sexual desires whereas some are passives in such sexual behaviour. The differences in such sexual behaviour are because of the conditions of gonad glands which are more active in some persons than others. Impotency of the husband is also one of the causes of adultery.
Excessive sexual behaviour may be due to over secretions from endocrinal glands. Sex crime also takes place due to desire of maternity. A married woman who had no child is discarded in the society. She is considered as ill omen.
Sex crimes are also increasing due to the security which is provided by modern medicines against the pregnancy and venereal disease. The use of various contraceptives has almost eliminated the fear of unwanted pregnancy. It results in deriving sexual pleasure.
3.1.3 Psychological Causes
The human nature plays a significant role in determining the behaviour of an individual for an act. There can be various psychological causes such as disinterested partner, the feeling of taking revenge etc. If a man or woman has a disinterested partner, not enjoying sex, there are chances for developing sexual relationship outside the marriage bond. Sex is the basic part of the marriage and if other partner is not willing to have sex, frustration arises and leads to extra-marital relationships.33 The married women, whose husbands are absent, derive sexual
satisfaction through male prostitutes. They pay handsome amount to them for their sexual satisfaction. In Hyderabad there are number of boys who have joined this activity because of the handsome payment given to them.34
In addition to this, sometimes after knowing that partner to marriage is not faithful, the opposite partner develop illicit relations with some other person outside marriage then it causes the feeling of revenge, due to which even the other spouse enters into such kind of illicit relationships. Many people find it very exciting and adventurous also and in order to satisfy their excitement they go for such illicit relationships.
One of the major cause for adultery and such other sexual offences is misrepresentation and fraudulent acts done by the person. The other person trusts on the words and later discovers that he/she was cheated.
3.1.4 Social Causes
There are various social causes, which are responsible for sexual delinquency. Family, cultural problems, ecological factors, etc. may be cited as the cause for adultery by way of 33 Available at: http://ezinearticles.com/?Adultery:-Problems,-People,-and-Pain&id=56580 (visited on 30.03.11
at 5:02 p.m.)
34 Available at:
various examples. Family is the institution where one learns the basic values of life and has the highest impact on one’s life. The modern women are not confined within the four walls of the house but have participation with the men in the outdoor activities also. They no longer follow the order of the husband in the house but want to share husband’s burden equally. During jobs the women get enough opportunity to develop relations with other men. This intimacy sometimes develops sex delinquency. The broken homes constitute an important factor in the causation of sex crime. Lack of family ties due a divorce, separation or the voluntary breaking between parents leads to sex delinquency. Economic independence has brought tremendous change in the outlook of the women.
Also in the relationship of marriage both the parties grow apart and sometimes they did not have as much in common as they thought and when one met a person who has more in common, the person may check out if he is compatible with her under the sheet also. Family happiness due to the wife being frigid or husband’s habits, complexities may cause dissatisfaction which led to extra marital relationships. Thus, compatibility between the two partners plays a very important role.
Besides this the mass media plays a very influential role in causation of the sexual offences. The influence of modern cinemas, blue films, obscene literature and transparent dresses etc. arouse sexual desire normal. Easy availability and access to all these sources induce the desire to commit these offences. In many Hindi movies also the directors by depicting illicit sex, try to make a picture of freeing individuals from social and religious restrictions and encourages lust.
Moreover the habit of taking narcotic drugs and drinks also increases the sexual desire of the person. An herb found on the hilly slopes ear Milan, Italy if taken orally increases the sexual desire in human beings and is responsible for different sexual offences. Alcoholic drinks and drugs impair the mental faculty of human beings and their acts do not remain in their control due to which they tend to do certain acts which normally they would not do.
3.1.5 Economic Causes
The society is increasingly becoming more materialistic and lust for materialistic goods, drive people to earn money or get such things by any means legal or illegal. Poverty and unemployment force women to indulge in such kind of sexual behaviour. The cases have also
been reported where male members have gone to work abroad and the wives indulge in sexual intercourse with other males or male prostitutes.
The phenomenon of rapid industrialization in India has introduced many radical changes in the society. The increase in number of working women has exposed the men and women to western culture. The interaction between the working women and working men sometimes make the women more impressed by her fellow mate than her husband and may lead to adulterous relationship.
3.1.6 Miscellaneous Causes
The following are some general causes of adultery which are not category specific as they may fall under all the categories simultaneously or none.
i. In some relationships sexual activity can only occur outside of the marriage as is the case with extreme chronic illness or disability.
ii. Extramarital affairs relating to a philosophical belief about "open marriage."
iii. Tension and conflict in the relationship due to any of a number of factors such as financial problems, value conflicts, long periods of separation, problems and incompatibility with in laws, and career oriented issues.
iv. Critical life events such as illness or accident, death, being uprooted, a shift in status, personal failure, life transitions, substance abuse, may have knocked you off balance and contribute to the affair.
v. Individual character issues predisposing someone to extramarital affairs. vi. One partner feeling that his / her needs are not being met.
vii. Emotional emptiness can lead to adultery. viii. Need for sexual variety.
ix. Inability to resist new sexual opportunity.
x. Failure or rejection on any front can make you or your spouse more vulnerable to an affair.
xi. Surprisingly, success is also a risk factor because it increases attractiveness to others.
xii. Lack of conflict resolution skills.
Thus, there is multitude of factors which are responsible for causation of sex offences. Social and moral values have lost their control.
3.2 Consequences and Effects of Adultery
There are a number of negative consequences that result when someone commits adultery. There are areas in the world in which legal action is pursued as a criminal act. In many instances, when an individual has been a victim of their spouse's adulterous acts, they are issued immediate permission to divorce that individual. As you can see, this is not an uncommon issue. However, when experienced, it can be an absolute disheartening experience for all that are involved.
Below are some more examples when it comes to effects of adultery:
i. Individuals who engage in sexual acts with someone outside of their marriage, often experience high levels of anxiety and depression once this has been indulged in. This level of stress not only impacts the mind in a psychological way; it also affects the physiological make up and parts of the person.
ii. By engaging in this act, one may start to experience difficulties in other relationships, also at work, and many other areas because along with legal ramifications social stigma is also attached to the act of adultery.
iii. Many who have pursued an adulterous relationship have often found themselves suffering financial loss as a result of the relationship that is being pursued. Since these relationships are bound by any bond so once the purpose is fulfilled or either of the partners has become incapable of fulfilling the desires of the other than these relationships come to an end. It means that they are short term relationships.
iv. In many professional positions, there is a possibility for termination of employment if the adulterous act was brought to the attention of the employer. An example of when this act may cost a professional loss is law enforcement positions. These are professionals who are expected to achieve the highest level of integrity and it is
believed to be a breakdown of character if adultery is committed. Being a pastor and head of a religious denomination may also line up for dismissal if adultery is committed.
v. When an adulterous act is committed, and others find out, a lack of respect and tolerance may be experienced. This can be potentially devastating because the person has to go through many psychological traumas.
vi. Besides these social, economic and psychological effects there are serious legal consequences also if the case is reported. The act of adultery has been considered as a very heinous crime since times immemorial and has always been awarded with severe punishments. Though those brutal forms of punishments have ceased to be practised but still the Indian Penal Code provides for imprisonment of either description for a period of five years or fine or both. This shows that it has serious legal consequences as well.
Therefore, it may be said that adultery is an offence against the institution of marriage. In order to keep marriage intact it is necessary to punish those who violate its sanctity. There is close connection between law and morals so immoral act of adultery has been prohibited by law since ages.
---CHAPTER 4 - ANALYSIS OF LAWS RELATING TO ADULTERY IN
INDIA
---Adultery is not uncommon in India for a number of reasons. Its peculiarity and amorphous quality is exhibited from the fact that it is sexual offence as well as offence against the institution of marriage. It is a ground for judicial separation as well as divorce under family law and therefore, from matrimonial point of view, its relevance cannot be ignored. It attacks the institution of marriage in the society. The definition of adultery has changed from time to time and place to place.
This chapter deals with the difference in the nature of adultery under matrimonial laws, penal laws. It takes into account adultery as a civil wrong.
4.1 Adultery under Matrimonial Laws as Civil and Social Wrong
According to Dr. Paras Diwan, there is no formal definition of adultery but it has a fairly established meaning in matrimonial laws.35 Adultery consists of sexual intercourse by one
party to the marriage with some person other than the spouse. It is defined under law as a consensual physical correlation between two individuals who are not married to each other and either or both are married to someone else. Sexual intercourse must be voluntary for adultery and therefore, the married woman who is raped cannot be party to adultery.36 It
should be voluntary both physically and mentally so that the defence of insanity may not be taken. In order to establish adultery, the complete acts of sexual intercourse need not to be proved which is required to consummate a marriage.37 It is one of the principle grounds for
divorce as well as judicial separation. A single act of adultery is enough to constitute a matrimonial offence or wrong.38
35 Dr. Paras Diwan, and Peeyushi Diwan, ‘Family Law: Law of Marriage and Divorce in India’, Allahabad Law
Agency, 9thh Ed., 2005, pg. 171
36 KI Vibhute, ‘PSA Pillai’s Criminal Law’, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 10th Ed.,
2008, pg. 573
37 S.K. Sarkaria, ‘R.A. Nelson’s Indian Penal Code’, LexisNexisButterworths, NewDelhi, Vol.4, 9th Ed., 2003,
pg.4594
4.1.1 The Hindu Marriage Act, 1955
Under Hindu law adultery is a ground for judicial separation and divorce. Section 10 and section 13 of the act deals with judicial separation and divorce respectively.
Section 10 - Judicial separation - (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.39
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Section 13 - Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party —
(1) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or ...
Before the amendment in 1976, section 13(1) (i) of the Hindu Marriage Act, 1955 was that the marriage may be dissolved by a decree of divorce on the ground that the other party is living in adultery. But after the amendment now the clause is that the other party after solemnization of the marriage had voluntary sexual intercourse with person other than the spouse. This clearly indicates that now a single act of adultery is enough for taking evidence.
4.1.2 The Indian Divorce Act, 1869
Section 22 - No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.40
39 Section 10, The Hindu Marriage Act, 1955 40 Section 22, The Indian Divorce Act, 1869
Section 10 - When husband may petition for dissolution41 - Any husband may present a
petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery; or of bigamy with adultery;
or of marriage with another woman with adultery, or of rape, sodomy or bestiality; or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro;
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
The term adultery for the purpose of this Act has to be construed in its ordinary meaning and as such has wider importance than it has under section 497 IPC. It means illicit cohabitation. This was held in the case of G.L.J. Vailshery v. Romola Voilshery42
4.1.3 The Dissolution of Muslim Marriage Act, 1939
Section 2 of the Act provided that a Muslim woman may obtain a decree for the dissolution of her marriage on any or more of the following grounds mentioned therein. Although, adultery has not been mentioned as a ground for dissolution of marriage, in this section, but inference can be drawn. Section 2(viii) lays down that the husband treats her with cruelty, that is to say, associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life, or if he has more wives than one does not treat her equitably in accordance with the injunctions of the Quran.43
41 Id., Section 10 42 1997 (3) Kar LJ 531
4.1.4 The Parsi Marriage and Divorce Act, 1936
The Act lays down that any married person may sue for divorce on the ground that the other spouse has since the marriage committed adultery or fornication or bigamy or rape or unnatural offence provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know to of the fact.44
Section of the Act provides that any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce.45
4.1.5 Special Marriage Act, 1954
Under this Act, the husband or wide may seek dissolution of marriage on the ground that after the solemnization of marriage, the other spouse has voluntary sexual intercourse with any person other than his or her spouse.46
Section 27 – Divorce - Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse ; or …
Also, Section 23 provides for Judicial separation - (1) A petition for judicial separation may be presented to the district court either by the husband or the wife—
(a) On any of the grounds specified in sub-section (1) and sub-section (1A) of section 27 on which a petition for divorce might have been presented; or
(b) On the ground of failure to comply with a decree for restitution of conjugal rights; and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly. …
44 Section 32(d), The Parsi Marriage and Divorce Acr, 1936 45 Id. Section 34
In the case of Kaitha Kulengina Kutty Kanan v. Nellothamucethil Malar47 the Court held that
the purpose of granting judicial separation is to give an opportunity to the spouses to live separately and provide them a chance for reconciliation and come together. It has also been held in the case of Devyani v. Kantilal48that if the respondent was not living in adultery at the
time of filing of the petition, no decree could be passed.
Further, the Court took a liberal view on the aspect of producing evidences and proving the fact beyond reasonable doubt. In the case of N.G. Dastane v. S. Dastane49 it was laid down
that desertion, cruelty and adultery and other ground of divorce need not be proved beyond reasonable doubts and may be proved by balance of probabilities.
Thus, matrimonial laws generally allow judicial separation and divorce on the ground of adultery, because all the laws recognise adultery leads to break down of the institution of marriage.
4.2 Adultery under Criminal Laws as a Crime
In India, adultery is a ground of divorce as well as a crime under the Indian Penal Code. Every religion treats it as an unpardonable sin.50 It treats adultery as an invasion of the right of
the husband over his wife and puts it under Chapter XX of Offences Relating to Marriage. The section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer.
However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself 47 AIR 1973 Ker 273
48 AIR 1963 Bom 98 49 AIR 1975 SC 1534
50 K.I. Vibhute, ‘Adultery in the Indian Penal Code: Need for a Gender Equality Perspective’, (2001) 6 SCC 16
expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
Section 497 of the Indian Penal Code, 1870 states that,
“Whoever has sexual intercourse with a person who is and whom he knows or has a 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 the offence of Adultery”.
Object
The main objective of this provision is that the social goodwill should be promoted between the husband and wife by pertaining them to make up the matrimonial tie rather than to drag to the criminal court.51 They may condone the offence of adultery by way of ‘forgive and forget’
and can live separately whether officially or unofficially.
Essentials
In order to attract the application of this provision there are certain essential ingredients which are to be fulfilled.52 Such as:
1. there must be sexual intercourse
2. woman must be married
3. the offender has knowledge or reasonable belief that the woman is married
4. sexual intercourse was committed without the consent or connivance of the husband of the woman
5. the offence must not amount to rape
Therefore, in order to prove adultery these ingredients must be identified and are explained in briefly in the following section.
1. The adulterer must have had sexual intercourse with the wife of another man.
51 Justice V.V. Raghvan, ‘Law of Crimes’, India Law House, New Delhi, 5th Ed., 2001, pg. 768
Clear indulgence in sexual intercourse must be proved on the part of the accused. In case, the act does not involve actual sexual intercourse and ends at the stage of preparation itself, it will not be attracted by this section. Thus, proof of sexual intercourse having taken place is vital for conviction on adultery. There must be at least partial penetration for the act of adultery to be proved. The attempt to commit adultery must not be confused with the act itself and if there is no penetration, some lesser act or sexual gratification does not amount to adultery.53
In the case of Kashuri v Ramaswamy, it was held that if the act of sexual intercourse could not be conclusively proved, it must be inferable from the facts and circumstances of the case. It must be clarified at the outset that Section 497 of the Indian Penal Code, 1870 is attracted only in cases where the woman in the adulterous relationship is the wife of another man through lawful marriage. The factum of marriage must be strictly proved for a man to be held guilty of the offence of adultery as put forth in the Indian Penal Code, 1870. Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within the ambit of this section.
2. The adulterer must have had knowledge or must have had enough reason to believe that the woman is the wife of another man.
The section 497 uses two expressions ‘knows’ or ‘has reason to believe’. The word knowledge imports certainty and reason to believe means that the accused should entertain a reasonable belief.54
The accused must have knowledge of marital status of the woman in such alleged adulterous relationship. However if it may be proved that the accused had sufficient reason to believe the woman to be the wife of another man, it may be deemed to be knowledge as mentioned above. The term “sufficient reason” cannot be said to have common qualifying grounds for all cases of adultery.55 It is a question of fact and not law and hence can be deduced differently in
different cases based on their facts and circumstances. It may also be noted that the identity of the husband need not be necessarily known by the accused, but his mere existence as the husband of the woman in sexual relationship with, would be sufficient to prove knowledge.
53 Ratanlal and Dhirajlal, ‘The Indian Penal Code’, Wadhwa and Company Nagpur, New Delhi, 31st Ed., 2006,
pg.2518
54 C.K. Thakkar (ed.), ‘Rattan Lal and Dhiraj Lal’s Law of Crimes’, Bharat Law House, New Delhi, Vol.2, 26th
Ed., 2010, pg.2712
3. The adulterer must have had sexual intercourse without the consent of or connivance of the husband.
‘Consent’ means permission to the paramour on the part of the husband to have connection with his wife.56 Connivance may be defined as the willing consent to a conjugal offence or
acquiescence in course of conduct likely to lead to the offence being committed.57 It may be
laid down plainly that a husband on consenting to a relationship which may otherwise be termed an adulterous relationship absolves such relationship of adulterous nature. Therefore, on acquiring knowledge, as understood above, if the husband of the woman involved in an adulterous relationship fails to act upon such knowledge he is said to acquiesce. From the fact, that the husband had left his wife about ten years of age and was living with his new wife and did not care to take her back, no inference of connivance can be drawn.58 When a man entered
the house of another at night with the intent to commit adultery with his wife and her husband was absent in the legitimate pursuit of his occupation, it was held that it may safely be presumed that such husband neither consented to, nor convinced at, any adultery or immorality on the part of his wife.59
4. The adulterer must have had such sexual intercourse that did not amount to rape.
The married woman must be above the age of 16 and a consenting party to the sexual intercourse. It is necessary for the married woman to wilfully have sexual intercourse with the man. If she does not consent to the act, it would amount to rape and not adultery. In such a situation the husband’s consent is immaterial. However, if the woman is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape. It has been held in the case of Gitabai v. Fattoo60 that adultery means consensual sexual
intercourse between a married person and another person of the opposite sex during the subsistence of marriage.
An analysis of the characteristic features of the act of adultery and rape, it becomes clear that the common element in the offence of rape and adultery is the sexual intercourse by a man 56 R.P. Kathuria, ‘Law of Crimes and Criminology’, Vinod Publications (P) Ltd., Delhi, Vol.4, 2nd Ed., 2007, pg.
4390
57 S.K. Sarkaria, ‘R.A. Nelson’s Indian Penal Code’, LexisNexisButterworths, NewDelhi, Vol.4, 9th Ed., 2003,
pg.4596
58 Pothi Gillari v. Ghanni Mondal, AIR 1963 Ori 60 59 Khanoon Ram v. Emperor, AIR 1920 Lah 62 60 AIR 1966 MP 130
with a woman. The circumstances under which it is done and marital status of woman make the difference. The mens rea in the both the offences make them differently punishable.61
Constitutional Validity of Section 497
Immediately after the commencement of the Constitution of India, Section 497 IPC which defined adultery and provides punishment for the offence has also faced three constitutional challenges. It was assailed on the ground that it goes against the spirit of equality embodied in the Constitution. It has argued that it is violative of Article 1462, 1563 and 2164 of the
Constitution. It is so because with the passage of time the society has undergone many changes such as women empowerment, sexual freedom, liberal values, change in socio-economic conditions, and have diluted the constitutionality of this provision.
The question of constitutional validity of section 497 IPC was first initiated in the case of Yusuf Abdul Aziz v. State65. In 1951, one Mr Yusuf Abdul Aziz, charged with adultery,
contended before the Bombay High Court that Section 497 IPC is unconstitutional as it, in contravention of Articles 14 and 15 of the Constitution, operates unequally between a man and a woman by making only the former responsible for adultery. It, thereby, he argued, discriminates in favour of women and against men only on the ground of sex.
Recalling the historical background of Section 497 and the then prevailing social conditions and the sexual mores oppressive to women, and the unequal status of women, the High Court of Bombay upheld the constitutional validity of the provision. Chagla, C.J., observed:
61 C.K. Thakkar (ed.), ‘Rattan Lal and Dhiraj Lal’s Law of Crimes’, Bharat Law House, New Delhi, Vol.2, 26th
Ed., 2010, pg.2713
6 2 Article 14 - Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
6 3 Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth - (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children. …
6 4 Article 21- Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.
"What led to this discrimination in this country is not the fact that women had a sex different from that of men, but that women in this country were so situated that special legislation was required in order to protect them, and it was from this point of view that one finds in Section 497 a position in law which takes a sympathetic and charitable view of the weakness of women in this country."66
The Court also opined that the alleged discrimination in favour of women was saved by the provisions of Article 15(3) of the Constitution which permits the State to make "any special provision for women and children".67
Yusuf Abdul, on appeal to the Supreme Court in the matter of Yusuf Abdul Aziz v. State of Bombay68, argued that Section 497, by assuming that the offence of adultery could only be
committed by a man and mandating a court that the adulteress wife be not punished even as an abettor offended the spirit of equality enshrined in Articles 14 and 15 of the Constitution. Such immunity assured to the adulteress wife for her willing participation in the adulterous sexual activity, it was argued, did amount to a sort of licence to her to commit and abet the offence of adultery.
Justice Vivian Bose, speaking for the Constitutional Bench (comprising M.C. Mahajan, C.J., Mukherjea, S.R. Das and Ghulam Hasan, JJ.) was not impressed by the appellant's interpretation of Section 497 as well as of Articles 14 and 15. His Lordship, like Chagla, C.J., relying heavily upon Article 15(3), held that Section 497 is a special provision made for women and therefore is saved by clause (3) of Article 159. To the argument that Article 15(3) should be confined only to provisions which are beneficial to women and should not be used to give them a licence to commit and abet a crime with impunity69, the Apex Court
responded:
"We are not able to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited."
66 Id. at 472
67 Ratanlal and Dhirajlal, ‘The Indian Penal Code’, Wadhwa and Company Nagpur, New Delhi, 31st Ed., 2006,
pg.2520
68 AIR 1954 SC 321 69 Ibid
More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz case, constitutional vires of Section 497 came to be re-agitated in the case of Sowmithri Vishnu v. Union of India70. It was contended that Section 497, being contrary to Article 14 of the
Constitution. It was challenged on the following three grounds71:
(i) confers upon the husband the right to prosecute the adulterer but it does not confers corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery,
(ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and
(iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free licence under the law to have extramarital relationship with unmarried women.
The Supreme Court rejected these arguments and ruled that Section 497 does not offend either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the argument that Section 497, in the changed ‘social transform’72.
It must be mentioned here that all of the above decisions of the Supreme Court had restricted their scope to the determination of Constitutional validity of Section 497 as it stands. They should not be taken as an authority over the question whether Section 497 is required at all. Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.
70 AIR 1985 SC 1618
71 R.P. Kathuria, ‘Law of Crimes and Criminology’, Vinod Publications (P) Ltd., Delhi, Vol.4, 2nd Ed., 2007, pg.
4394-95
---CHAPTER 5 - INTERNATIONAL PERSPECTIVE
---Having found that sexual values change from society to society and time to time, it becomes necessary to survey legal position on adultery in other countries. It helps outline the emerging trends with respect to the subject, around the globe.
5.1 Position in United States of America
In United States of America, position varies from state to state. There exits four types of formulations under the State law: the Common law view; the Canon law view and two hybrid views.73 Under common law, adultery takes place if the woman is married. Both the parties
are held liable. Under the canon law, adultery is voluntary sexual intercourse of a married person with a person other than offender’s husband or wife, the married person is guilty. Under the majority hybrid rule followed by 20 states of either spouse has sexual intercourse with third party, both violators are guilty.
Across the country, some social conservatives are fighting for what they view as a critical article of faith: criminal adultery laws. In the U.S., in the year 2010, people can still be prosecuted for breaching their marital vows.74 The laws are some of the last remnants of our
Puritanical past, where infidelity was treated as not only a marital but also as a criminal matter. While the laws have been challenged as unconstitutional, many people are resistant to the idea of removing such "morality crimes" from law books.
In New Hampshire, for instance, legislators are trying to repeal a 200-year-old adultery law that is widely viewed as unconstitutional.75 Social conservatives, however, insist that such
laws are needed to back up moral dictates with criminal sanctions. A 1997 poll showed that 35% of Americans believe adultery should be a crime, and similar efforts to decriminalize adultery have met with opposition in states such as Illinois and Minnesota.76
73 Available at: http://www.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm (visited on
24.03.11 at 2:34 p.m.)
74 Available at :
http://www.icsworld.com/papers_and_press/infidelity_and_adultery_laws_and_court_decisions.aspx (visited on 24.03.11 at 2:30 p.m.)
75 Available at: http://www.leaderu.com/orgs/probe/docs/adultery.html (visited on 24.03.11 at 2:15 p.m.) 76 Supra note 73
