Adultery is no longer considered as a criminal offense but a reasonable ground for divorce. Therefore, if either party commits an offense of adultery then the other party has the right to terminate the marriage.
April 10, 2023
The word 'Adultery' is derived from the Latin word 'ADULTERIUM' which means extra marital sex and is considered objectionable on the basis of social, religious, moral and legal grounds. Adultery refers to "an act committed by a married spouse wherein the married spouse commits sexual activity with another person other than his/her spouse."
According to Section 497 of Indian Penal Code, 1860 Adultery refers to “whoever has sexual intercourse with a person who is and whom he knows 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 the 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.” But this Section was struck down by the Hon’ble Supreme Court in Joseph Shine vs. Union of India which has been discussed below.
HISTORICAL BACKGROUND OF ADULTERY-
The execution of adultery law dates back to social times when Indian Penal Code was legislated in 1860. The Indian Penal Code criminalized adultery under Section 497 still adultery wasn’t handed as a ground for divorce until the enactment of Hindu Marriage act in 1955. There was an absence of adultery as a ground of divorce because before the enactment of the Hindu Marriage Act, 1955, Hindus didn’t have any provisions for divorce since marriage was considered as a sacrament in previous times. Since there was no law for divorce, the provision for adultery as a ground for divorce wasn’t present. Similarly, a Hindu man was not allowed to marry a number of women and indulge in sexual intercourse with them. Thus, a provision for chastising husband for indulging in sexual intercourse or extra marital affairs was meaningless since the man could ultimately marry the woman with whom he had sexual relations.
Although, effects changed after the arrival of Hindu Marriage Act, 1955 under which a Hindu man could marry only one woman. Thus, in order to cover the institution of marriage and help its breakdown, adultery was legislated as a ground for divorce. This would discourage the man from indulging in sexual relations with the woman other than his wife.
It is still critical to note that indeed after the declaration of adultery as a ground for divorce, it was still criminalized under Section 497 of Indian Penal Code. It was for this reason that criminalization of adultery was questioned from time to time by numerous women rights activists and attorneys. Yusuf Aziz vs State of Bombay was the first case in which the provisions of adultery were challenged in 1951. It was challenged for being violative of Fundamental Rights under Articles 14 and 15 of the Constitution of India. The pleaders contended that Section 497 of Indian Penal Code discriminated against men by not penalizing women in an adulterous relationship. The court held that Section 497 of Indian Penal Code is naturally valid under Article 15(3) of the Indian Constitution. The court asserted that the explanation behind introducing adultery law was that in utmost cases, it’s the woman who’s the victim and hence, cannot be a perpetrator. However, the irony in the case was that although the court considered women as the victims in cases of adultery, they didn’t give them the right to file a complaint.
IS ADULTERY PUNISHABLE?
Earlier adultery was considered as a punishable offense under Indian Penal Code with 5 years of imprisonment, or fine or both. The provisions of punishment were only applicable on a man who had sexual intercourse with another woman other than his spouse, while a wife or another woman who had sexual intercourse or extra marital affairs with a man other than her husband could not be punished. However in the present scenario adultery is not considered as a crime and is not punishable per se.
HOW TO TAKE LEGAL ACTION FOR ADULTERY IN INDIA?
Adultery is no longer considered a crime, however, adultery is considered a valid and foremost ground for divorce under Section 13(1) (i) of Hindu Marriage Act, 1955. In other words, it constitutes that if either party to a marriage has committed an offense of adultery then the other person can file for divorce as marriage is considered as a religious bond which involves loyalty between the parties. Therefore, if either party is violating that holiness of marriage then the law allows either party to file divorce on the grounds that his/her wife or husband has committed an offense of adultery.
STEPS TO FOLLOW FOR TAKING LEGAL ACTION AGAINST ADULTERY-
Following are the steps to follow to take the legal action against the spouse if he or she commits the act of adultery-
Firstly, it is exceptionally important to ensure that the act is adulterous. Following acts are considered as adulterous:
The partners may need to appoint a private investigator to collect substantiation which could be presented before the court.
Consultation with the lawyer after the collection of the evidence as it may be important for the lawyer to understand the situation andlegality of evidence which may need to be presented before the court.
If the spouse wants to file a complaint of adultery against his/her spouse then he may file a petition for divorce in the court of law.
Then the party may choose for divorce either through mutual consent or through contest.
DECRIMINALIZATION OF ADULTERY-
JOSEPH SHINE VS UNION OF INDIA:
FACTS OF THE CASE:
In this case Joseph shine a non-resident of Kerala filed a Public Interest Litigation under Section 32 of Constitution of India where he challenged the constitutionality of the offence of adultery under Section 497 of Indian Penal Code and Section 198(2) of Criminal Procedure Code.
The five judge bench of the Supreme Court mutually struck down Section 497 of Indian Penal Code and Section 198(2) of Criminal Procedure Code stating that it is violating Article 14, 15(1) and 21 of the Constitution of India.
The court held that Article 14 of the Constitution of India deals with Right to Equality but it is violating Section 497 and 198(2) as it only penalizes men and not women.
Similarly Article 15(1) states that there should be no discrimination on the grounds of sex. In this case the law only considers the husband as the aggrieved party if the wife has committed an offense of adultery but the law doesn't consider the wife as the aggrieved party if the husband has committed an offense of adultery.
Also Section 21 of Constitution of India deals with the protection of life and personal liberty but Section 497 of Indian Penal Code treats women as the personal property of the husband and goes against the basic dignity of the women.
Adultery is no longer considered as a criminal offense but a reasonable ground for divorce. Therefore, if either party commits an offense of adultery then the other party has the right to terminate the marriage. However, it is important to note that the burden of proof lies with the party who has accused the other party for the adulterous act and therefore he or she should have all the relevant evidence to prove the offense of adultery committed by other party in front of the court of law in order to terminate the marriage.