RESEARCH PROJECT OF FAMILY LAW I ON THE TOPIC

ADULTERY AS A GROUND FOR DIVORCE

PRESENTED BY ---AASHANA MADHUP

B.A.LLB,

SECOND YEAR

ROLL NO.-1102
SUBJECT TEACHERMr RAVI RANJAN KUMAR

RESEARCH METHODOLOGY
The researcher will use Doctrinal Method. The researcher will refer various books, articles
various law journals regarding the adultery as a ground for divorce.

AIMS AND OBJECTIVES

The aims and objectives of researcher is to study about the adultery as a ground for divorce
and causes.

RESEARCH QUESTION
HYPOTHESIS
CHAPTERISETION
1. INTRODUTION
2. ADUTERY AND DIVORCE
3. ADULTERY UNDER INDIAN PENEL CODE
4. ADULTERY AS A GROUND FOR DIVORCE
5. CASE STUDY
6. CONCLUSION

BIBLIOGRAPHY

INTRODUCTION
Adultery is extramarital sex that is considered objectionable on social, religious, moral or
legal grounds. Though what sexual activities constitute adultery varies, as well as the
social, religious and legal consequences, the concept exists in many cultures and is
similar in Islam, Christianity and Judaism. The term adultery refers to sexual acts between

a married person and someone who is not that person's spouse. It may arise in criminal
law or in family law. For instance, in the United Kingdom, adultery is not a criminal
offense, but is a ground for divorce, with the legal definition of adultery being "physical
contact with an alien and unlawful organ". Extramarital sexual acts not fitting this
definition are not "adultery" though they may constitute "unreasonable behavior", also a
ground of divorce. The application of the term to the act appears to arise from the idea
that "criminal intercourse with a married woman ... tended to adulterate the issue
[children] of an innocent husband ... and to expose him to support and provide for another
man's [children]".Thus, the "purity" of the children of a marriage is corrupted, and the
inheritance is altered. Some adultery laws differentiate based on the sex of the
participants, and as a result such laws are often seen as discriminatory, and in some
jurisdictions they have been struck down by courts, usually on the basis that they
discriminated against women. The term adultery, rather than extramarital sex, implies a
moral condemnation of the act; as such it is usually not a neutral term because it carries
an implied judgment that the act is wrong. Historically, many cultures have considered
adultery a very serious crime. Adultery often incurred severe punishment, usually for the
woman and sometimes for the man, with penalties including capital punishment,
mutilation or torture. Such punishments have gradually fallen into disfavor, especially in
Western countries from the 19th century. In most Western countries, adultery itself is no
longer a criminal offense, but may still have legal consequences, particularly in divorce
cases. For example, in fault-based family law jurisdictions, adultery almost always
constitutes a ground for divorce and may be a factor in property settlement, the custody of
children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions
which have adopted a no-fault divorce model. In some societies and among certain
religious adherents, adultery may affect the social status of those involved, and may result
in social ostracism. In countries where adultery is a criminal offense, punishments range
from fines to caning and even capital punishment. Since the 20th century, criminal laws
against adultery have become controversial, with international organizations calling for
their abolition, especially in the light of several high profile stoning cases that have
occurred in some countries. The head of the United Nations expert body charged with
identifying ways to eliminate laws that discriminate against women or are discriminatory
to them in terms of implementation or impact, Kamala Chandrakirana, has stated that:
"Adultery must not be classified as a criminal offence at all". A joint statement by the
United Nations Working Group on discrimination against women in law and in practice

states that: "Adultery as a criminal offence violates womens human rights". In Muslim
countries that follow sharia law, the punishment for adultery may be stoning. There are 15
countries where stoning is authorized as lawful punishment; however instances have
occurred outside the legal system (extrajudicially). Most countries that criminalize
adultery are those where the dominant religion is Islam, and several Sub-Saharan African
Christian-majority countries, but there are some notable exceptions to this rule, namely
Philippines, Taiwan, and several US states. In some jurisdictions, having sexual relations
with a sovereign's consort or an heir to the throne constitutes treason. By analogy, in
cultures which value and normally practice exclusive interpersonal relationships, sexual
relations with a person outside the relationship may also be described as infidelity or
cheating, and is subject to sanction.

ADULTERY AND DIVORCE

Either party to the marriage may present a petition for divorce under cl. (i) of sub-sec. (1)
of s. 13, on the ground of adultery of the respondent. The expression 'living in adultery'
used in old s. 13(I)(i) meant a continuous course of adulterous life as distinguished from
one or two lapses from virtue. It would not be in consonance with the intention of the
Legislature to put too narrow and too circumscribed a construction upon the words 'is
living' in (old) cl. (i) of sub-sec. (1) of s. 13 of the Act. On the other hand, it was clear that
too loose a construction must also not be put on these words. For attracting the operation
of these words, it would not be enough if the spouse was living in adultery sometime in
the past, but had seceded from such life for an appreciable duration extending to the filing
of the petition. It is not possible to lay down a hard and fast rule about it since the
decision of each case must depend upon its own merits and turn upon its own
circumstances. But it is clear that for invoking the application of (old) cl. (i) of sub-sec.
(1) of s. 13, it must be shown that the period during, which the spouse was living an
adulterous life was so related from the point of proximity of time, to the filing of the
petition that it could be reasonably inferred that the petitioner had a fair ground to believe
that, when the petition was filed, the respondent was living in adultery. By using the
words 'is living in adultery' the Legislature did not intend to make such living coextensive with the filing of the petition. The identical expression of 'living in adultery' is
to be found in s. 488(4) the Code of Criminal Procedure (old) and in s. 125(4) of the Code
of Criminal Procedure (new). This expression implies that a single lapse from virtue even
if true will not suffice, and it must be shown that the respondent was actually living in
adultery with someone else at the time of the application. Living in adultery is different
from failing to lead a chaste life.
The expression 'living in adultery' refers to an outright adulterous conduct and the respondent
lived in a quasi-permanent union with a person other than the petitioner or the purpose of
committing adultery. illicit conception, living as concubine or kept as mistress does not mean
living in adultery. After the commencement of the marriage Laws (Amendment) Act 1976,
even a single act of voluntary, sexual act by either party to the marriage with any person other
than his or her spouse will constitute ground for divorce for the other spouse. But under the
old law an isolated act of adultery did not attract the provision of s. 13(1)(i) of the Act, but
provided a ground for judicial separation. To maintain a distinction between divorce and
judicial separation - e court should even in the context of the Marriage Laws (Amendment)
Act 1976, put suitor construction for granting the decree of divorce than the decree of judicial

separation. It is because the relation of the husband and wife has to be considered not only
from the point of view of the welfare of the husband and wife but also of the children of the
marriage. In case of adultery direct proof is difficult to get and one has to rely for proof
thereof on circumstantial evidence and the same may be sufficiently proved from which
adultery maybe inferred. The burden of proving adultery in a matrimonial case is on the
person who makes the allegation. The standard of proof in "proceedings under the Act being
initially of a civil nature is by preponderance of, probabilities and not by proving it beyond
reasonable doubt. General evidence of the ill-repute of the husband or of the lewd company
that he keeps, or even that he knows the addresses of prostitutes and was seen with doubtful
women, would neither prove nor probabilise adultery. Adulter , as a general rule, is proved by
presumptive proof based on:
(i) circumstantial evidence,
(ii) evidence of non-access and the birth of children,
(iii) Contracting venereal disease,
(iv) evidence of visit to houses of ill-repute,
(v) admissions made In previous proceedings,
(vi) confessions and admissions of the parties Mere suspicion is not sufficient.
There must be circumstances amounting to proof that opportunities could be used, such as the
association of the parties was so clear that adultery might reasonably be assumed as the result
of an opportunity for its occurrence.
Blood Grouping Test And Standard of Proof In Presumption of Parentage
If the husband has established that he had no sexual intercourse with his wife, he need not
prove further that he had no opportunity. The blood grouping test is a perfect test to determine
the question of disputed paternity of a child and can be relied upon by courts as a
circumstantial evidence. But no person can be compelled to give a sample of blood for blood
grouping test against his will and no adverse inferences can be drawn against him for this
refusal. The value of blood test for establishing as well as eliminating the paternity of a
particular person is increasing in modern time. In ordering the blood test for determining the
paternity of a child, the court should take into account the interest of the child. While the
court should be alert to exercise its protective jurisdiction on behalf of the child, it shall give
uppermost importance to the interest of justice. It is best to know the truth even if it results in

bastardizing a child. The importance of blood tests for establishing, and not merely
eliminating the paternity of a particular man is felt much in modern time. It has been
estimated that by using a combination of blood group systems there is a 93 per cent chance of
excluding a man alleged to be the father of the child. But the Law Commission in England
(points out that such testing will not always provide a conclusive answer. But where the blood
test shows that the husband along with about 11 per cent of western European males could be
the father, the onus lies heavily on the husband to prove that he is not the father. In many
cases disputed parentage is solved by availing the opportunity of forensic serology. In the
69th Report the Law Commission has observed that blood tests may act negatively. Its result
cannot conclusively establish the paternity of a child. At common law the presumption of
parentage could be rebutted only by evidence beyond reasonable doubt, but s. 26 of the
Family Law Reforms Act, 1969 lays down that the standard of proof may be the balance of
probabilities. In some decisions, however, it is suggested that the standard of proof should be
more than the ordinary civil standard of balance of probabilities. In S v S Lord Reid said that
"even weak evidence against legitimacy must prevail if there is no other evidence to
counterbalance it". If it can be shown that the husband have had the intercourse, but yet he is
not the father, because the husband was sterile and evidence may also be adduced by blood
test or DNA profiling. In India s. 112 of the Evidence Act 1872 lays down that if a person is
born during the continuance of a valid marriage between his mother and any man or within
two hundred and eighty days after its dissolution, the mother remaining unmarried, it shall be
the conclusive proof of his legitimacy as a son of that man unless it is proved otherwise. The
standard of proof for rebuttal of legitimacy is beyond reasonable doubt and not merely
balance of probability. In Goutam Kundu v State of West Bengal the Supreme Court has laid
down the propositions of law as to the permissibility of blood test to prove paternity which
are as follows:
(1) The courts in India cannot order blood test as a matter of course.
(2) Whenever applications are made for such prayer in order to have roving inquiry, the
prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in
order to dispel the presumption arising under s. 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequence of ordering the
blood test, whether it will have the effect of branding a child as a bastard and the mother as
an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.

ADULTERY UNDER IPC

The philosophy underlying the scheme of the provisions of s. 497, I.PC. is that as between the
husband and the wife social good will be promoted by permitting them to "make up" or
"break up" the matrimonial tie rather than to drag each other to the criminal court for the
offence of adultery. They can either condone the offence in a spirit of "forgive and forget"
and live together or separate by approaching a matrimonial court and snapping the
matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps
it is as well that the children (if any) are saved from the trauma of one of their parents being
jailed at the instance of the other parents.
Instances of Adultery

In the following cases the plea of adultery has been upheld by courts:
(a) Wife had been absenting herself from her house for some times and seen in the company
of a stranger to the family of her husband without reasonable explanation or any explanation.
(b) Unrelated person found alone with wife after midnight in her bedroom in actual physical
juxtaposition.
(c) Child born beyond the period of twelve months after the cessation of marital consortium
between the spouses.
(d) Evidence on post-suit adultery is admissible to prove and explain other evidencegiven in
the case and to show the character and quality of the previous acts.
(e) Paramour's letters indicating facts of illicit relationship.
(f) Admission of adultery by wife through letters.
(g) Testimony of disinterested witnesses to the effect that they had seen the respondent
sleeping together with another person in nights is sufficient to prove adultery.
(h) A solitary instance of voluntary sexual intercourse by wife with other person is enough.
(i) Wife left her husband and was living at her parent's house. The allegation by husband that
she became pregnant there without his access to wife. Statement by wife that husband used to
visit her parents house and stayed overnights and cohabitated with her. Wife failed to
examine her parents or any other witness in support of her statement. There was no
interference with the decree of divorce granted against the wife.
Instances of No Adultery
In the following cases the plea of adultery has been rejected by courts.
(a) The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and
the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
(b) No conclusion of adultery where the wife was found going on the scooter of some other
person or talking with someone other than her husband
(c) No corroboration to prove adultery of wife when she remains in a room with door though
shut but unbolted at 10 p.m. with another person when the mother of the husband and five
grown-up children were present in the house.

(d) Mere fact that some male relation writes letters to a married woman does no necessarily
prove that there was illicit relationship between the writer and recipient of the letters.
(e) Wife becoming pregnant after husband had undergone vasectomy operation without
proving that the operation was successful, no illicit relationship of wife can be presumed.
(f) Serious doubts may be raised as to the allegation of adultery of wife when the husband
makes no such allegation in the notice for divorce prior to the filing of the suit.
(g) Where the husband files the petition for divorce 8 years after he came to know that his
wife has committed adultery and has not explained the reason for the inordinate delay alone.
(h) Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an
adulterous act.
(i) Masturbation of co-respondent by wife is not adultery.
(j) Allegations of the husband that he saw his wife talking with other persons on three
occasions in daytime without any physical contact are not sufficient.

ADULTERY

IN

VARIOUS

RELIGIONS:

COMPERATIVE STUDY
CHRISTANITY
The Hebrew Bible prohibits adultery in the Seventh Commandment, "Thou shalt not commit
adultery." It prescribes capital punishment for adultery between a man and married woman:
And the man that committeth adultery with another man's wife, even he that committeth
adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to
death. Significantly, the penalty does not extend to sex by an unmarried woman and
irrespective of the marital status of the man.
Furthermore, Deuteronomic code prescribes stoning not only for female extramarital sex, but
also for female premarital sex in the case where the woman lies about her virginity: If any
man take a wife, and go in unto her, and say, / I took this woman, and when I came to her,
I found her not a maid. / But if this thing be true, and the tokens of virginity be not found
for the damsel: / Then they shall bring out the damsel to the door of her father's house, and
the men of her city shall stone her with stones that she die. It also prescribes the same for
engaged women who lie with another man, under the premise that if she allows the action
without protesting, this indicates willingness.

ISLAAM
Zina is an Arabic term for illegal intercourse; premarital or extramarital. Various conditions
and punishments have been attributed to adultery.
Under Muslim law, adultery in general is sexual intercourse by a person (whether man or
woman) with someone to whom they are not married. Adultery is a violation of the marital
contract and one of the major sins condemned by Allah in the Qur'an:
Qur'anic verses prohibiting adultery include:
"Do not go near to adultery. Surely it is a shameful deed and evil, opening roads (to
other evils)."[Quran 17:32]
"Say, 'Verily, my Lord has prohibited the shameful deeds, be it open or secret, sins and
trespasses against the truth and reason."'[Quran 7:33]
Punishments are reserved to the legal authorities and false accusations are to be punished
severely. It has been said that these legal procedural requirements were instituted to protect
women from slander and false accusations: i.e. four witnesses of good character are required
for conviction, who were present at that time and saw the deed taking place; and if they saw it
they were not of good moral character, as they were looking at naked adults; thus no one can
get convicted of adultery unless both of the accused also agree and give their confession
under oath four times.
The punishment prescribed by tradition (not by scripture) is flogging 100 times in public for
those found guilty. According to Muhammad, an unmarried person who commits adultery or
fornication is punished by flogging 100 times; a married person will too receive the same
punishment which is public flogging. A survey conducted by the Pew Research Center found
support for stoning as a punishment for adultery mostly in Arab countries, such as in Egypt
(82% of respondents in favor of the punishment) and Jordan (70% in favor), as well as
Pakistan (82% favor), whereas Nigeria (56% in favor) and in Indonesia (42% in favor)
opinion is more divided, perhaps due to diverging traditions and differing interpretations of
Sharia.
HINDU
Ancient texts of Hinduism offer different views on adultery. For example, Wendy Doniger
notes Rigveda verse 4.5 as declaring adultery is evil. A more nuanced view is expressed in
some smritis. Richard W. Lariviere notes that verse 13.60-61 of Nradasmr ti qualifies when

adultery is not a punishable crime; for example, if a woman comes to a man's house on her
own volition and has consensual sex with him even though she is not married to him, then it
is not adultery. Further, sex with a married woman was not a punishable crime provided the
woman initiates the sex of her own volition, and she has been abandoned by her husband or if
her husband is eunuch or her husband does not care. Another text, Manusmriti, declares
adultery by husband or wife to be wrong, as well as includes a discussion about sex outside
marriage after both the husband and wife consent.

CASES

AND

CONSTITUITONAL

VALIDITY

OF

ADULTERY LAW IN INDIA

Immediately after the commencement of the Constitution of India, Section 497 IPC was
assailed on the ground that it goes against the spirit of equality embodied in the Constitution.
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 Constitution6, 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: "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."7 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".
Yusuf Abdul, on appeal to the Supreme Court8 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 an immunity assured to the adulteress wife
(even) 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. Vivian Bose, J.,
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 impunity, the Apex Court responded: "We are unable 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."
More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz case,
constitutional vires of Section 497 came to be reagitated in Sowmithri Vishnu v. Union of
India. It was contended that Section 497, being contrary to Article 14 of the Constitution,
makes an irrational classification between women and men as it: (i) confers upon the husband
the right to prosecute the adulterer but it does not confer a 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 "transformation" in feminine attitudes and
status of the woman in a marriage, is a flagrant instance of "gender discrimination",
"legislative despotism" and "male chauvinism", by opining that it is for the legislature to take
note of such a "transformation" while making appropriate amendments to Section 497. The
argument that Section 497 is a kind of "romantic paternalism" premised on the traditional
assumption that a woman, like a chattel, is the property of man, was also rejected by the
Court.
The woman petitioner also argued that the right to life, as interpreted by the Supreme Court
in the recent past, includes the right to reputation and the absence in Section 497 of the
provision mandating the court to hear the married woman with whom the accused has
allegedly committed adultery violates her constitutional right to life under Article 21.
Assuming that the right to be heard is concomitant with the principles of natural justice and
believing that a trial court allows the married woman to depose her say before it records
adverse findings against her, the Apex Court held that the absence of a provision mandating
hearing the adulteress wife in Section 497 does not make the section unconstitutional.

However, one may find it difficult to convince himself about the rationale of the disability of
the "wife" of the adulterer to prosecute her unfaithful husband. In V. Revathi v. Union of
India5 this disability was relied upon by a wife to challenge the constitutional propriety of
Section 198(2) read with Section 198(1) CrPC, which, as mentioned earlier, empower the
husband of the adulteress wife to prosecute the adulterer but does not permit the wife of an
adulterer to prosecute her promiscuous husband. Probably realising that the section also does
not permit the husband of the adulteress wife to prosecute her for her infidelity and recalling
the ratio of Sowmithri Vishnu case5, she asserted that whether or not the law permits the
husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting
her unfaithful husband. Such a statutory provision, which is premised on gender
discrimination in contravention of the gender equality guaranteed in the Constitution, is, the
petitioner wife argued, unconstitutional as it amounts to an "obnoxious discrimination".
Upholding the constitutionality of Section 497 IPC and Section 198(2) CrPC, which
according to the Court "go hand in hand and constitute a legislative packet" to deal with "an
outsider" to the matrimonial unit who invades the peace and privacy of the matrimonial unit,
Thakkar, J. of the Apex Court observed:
"The community punishes the 'outsider' who breaks into the matrimonial home and occasions
the violation of sanctity of the matrimonial tie by developing an illicit relationship with one
of the spouses subject to the rider that the erring 'man' alone can be punished and not the
erring woman. ... There is thus reverse discrimination in 'favour' of the woman rather than
'against' her. The law does not envisage the punishment of any of the spouses at the instance
of each other. Thus there is no discrimination against the woman insofar as she is not
permitted to prosecute her husband. A husband is not permitted because the wife is not treated
as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section
198(2) does not permit her to do so. In the ultimate analysis the law has meted out evenhanded justice to both of them in the matter of prosecuting each other or securing the
incarceration of each other." The constitutional validity of Section 497 is upheld ostensibly on
the impression that it is favourable to the woman as it keeps her out of the purview of
criminal law. Such an approach is predominantly premised on a set of moot assumptions
pertaining to female sexuality and the inability of the higher judiciary to appreciate current
social "transformation". The Court, time and again, asserted that it is for the legislature to
take cognizance of the social "transformation" and not for it.

It is obvious that no adultery can be committed unless a woman is a consenting partner. The
judicial perception that only a man can be "an outsider", who has potential to invade the
peace and privacy of the matrimonial unit and to poison the relationship between the
unfaithful wife and her husband, therefore, seems to be, with due respect, less convincing and
unrealistic. "An outsider woman", can, like "an outsider man", be equally capable of
"invading" the matrimonial peace and privacy as well as of "poisoning" the relationship of
not only her own matrimonial home but also that of her paramour. Similarly, the judicial
opinion that Section 198(1) read with Section 198(2) CrPC, disqualifying the wife of an
unfaithful husband for prosecuting him for his promiscuous behaviour, with due respect, is
unconvincing and illogical.
Such judicial reasoning, in ultimate analysis, unfortunately endorses the patriarchal, propertyoriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to
have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible
to have such an exclusive right and claim over her husband! She is, therefore, not entitled to
prosecute either her promiscuous husband or the "outsider woman" who has poisoned (or
helped her promiscuous husband to do so) her matrimonial home. The Apex Court, thus,
failed to have a deeper insight into the gender-biased law of adultery.

CRITICAL ANALYSIS
Since its inception, the law on adultery in India has been subject to controversy with regard to
several fundamental issues. The legitimacy of these laws in India has been argued based on
their alleged tendency to emanate a very clear sense of gender bias. This article deals with

issues surrounding the very conception of adultery by the law makers. 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
husbands consent in other places.
In India, the offence of adultery is defined under Section 497 of the Indian Penal Code,
1870 which states, 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.
Therefore, in order to prove adultery the following ingredients must be identifiedThe adulterer must have had sexual intercourse with the wife of another man.
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. 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. The adulterer must have had knowledge or must have had enough reason to
believe that the woman is the wife of another man. 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. 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.
The adulterer must have had sexual intercourse without the consent of or connivance of the
husband. 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.
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 willfully 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 husbands 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.
If the above mentioned law is analysed quite generally it can be seen to be problematic in
more than one way. However, for the purpose of understanding, the problems can be broadly
discussed under the following:
1) Discrimination on the basis of sex.
The discriminatory aspect of the law regarding adultery can be seen by simply examining the
key features of this provision. According to Section 497 of the Indian Penal Code, 1870, a
man alone can be the adulterer and never a woman. In other words, a woman is always the
victim of adultery and never a party to it. The cause for such legislation can be deduced from
certain assumptions which form the basis for the said legislation. These assumptions are that
a man is always the seducer and the married woman is simply a passive victim of the ordeal;
the adulterous man trespasses upon another mans marital property i.e. his wife. Thus, the
justification given to the enactment of such legislation is that it attempts to promote
goodwill between the spouses and encourages continuity in the marriage. In the case of
Yusuf Abdul Aziz v. State of Bombay, the discriminatory aspect of the law was challenged
with due cause and reason. The appellant who was accused of adultery relied on Articles 14
and 15 of the Constitution which explicitly preach equaltity and disallows discrimination on

any basis. However, Article 15(3) of the Constitution says, Nothing in this article shall
prevent the State from making any special provision for women.......... ". Hence, the
justification for the provision is that it was originally meant to be a special law deemed to
protect women. This justification was reiterated in subsequent judgments of the Supreme
Court. The Supreme Court, in these cases, relied on the justification that an outsider to the
couple in matrimony, who poisons their peace in married life, should alone be punished.
However, this provision indirectly is discriminatory towards women themselves. A simple
reading of the Section clearly suggests that a wife is the property of the husband, and he alone
has the right to protect her. It is interesting to note that if the husband consents to sexual
intercourse between his wife and a third person, it would not be considered adultery. Further,
this provision only punishes a man, thus, assuming that a woman is incapable of thinking and
taking responsibility for her own actions. Another effect of this provision that may be worth
pointing out is that in cases where a married man indulges in sexual intercourse with an
unmarried woman, the man cannot be charged of adultery although his wife and the
unmarried woman are sore victims of such an act.
This approach can be said to be one that is protectionist and in this case allegedly strives
towards protecting women. Protectionist laws, in most cases, accept stereotypes, which in the
present case is that women are weak. The problem that evolves from this approach is that it
reiterates the fact that women are, in fact, weak and thus creating obstacles to achieving
gender equality in society. Hence it must be noted that Section 497 of the Indian Penal Code,
1870 is either obsolete or is based on principles which evolve from an incongruent approach
towards solving the problem of gender inequality. Thus necessary steps need to be taken by
the legislation to rectify the several flaws present in the existing laws on adultery in India.
2) Adultery, a criminal offence.
The state recognizes adultery as a crime. Such recognition can be said to raise speculation, as
the act of adultery involves two fully grown adults, who are capable of making rational
decisions, affecting their personal lives, participating in consensual sex. In the light of the
above mentioned statement the question as to whether such an act poses a threat to society as
a whole and warrants a punishment of imprisonment for a period of 5 years, arises. The strict
sanctions for the crime of adultery, give rise to a valid debate on whether criminal
punishment is mandated as a deserving punishment for adultery. The basis on which the
concept of criminalizing adultery rests is that it deters the adulterer from committing the
crime again. This was an apparent attempt to counter the notion that most laws have been

made to a mans advantage. The subsequent claim of the legislators is that on enactment of
such stringent laws, wives are not deprived of their husbands attention, and no extramarital
relation can be maintained without there being legal action for the same. Personal laws that
didnt exist in their present form previously, have now become more operational, thereby
putting both men and women on the same level. Therefore, the objective with which adultery
had been criminalized is now close to being obsolete. The act of marriage is dealt with under
personal laws. Under the Hindu Marriage Act, 1955, adultery is recognized to be a valid
ground for divorce and thus forming an appropriate civil remedy for adultery. It seems
unnecessary that criminal law must be used to provide an added form of sanction for the
same.
Furthermore, marriage is a bond between two individuals who are over the age of
majority and are of sound minds. The discretion to maintain any relationship with someone
other than ones spouse therefore, should be given to the parties involved. However, such
discretion should be restricted to the sanction imposed by personal law i.e., a valid ground for
divorce. Marriage is found to be within the ambit of personal laws under which it can be a
valid ground for divorce and hence it seems rather redundant that Criminal Law must be used
to meet out an added punishment. This proposition has also been supported by the National
Commission for Women (NCW) which recommends that civil remedies must be ensued for
perpetrators of adultery and not criminal sanctions as mixing personal law with criminal law
is unwarranted.
Additionally, adultery as an offence is extremely gender biased, and hence the punishment for
it also follows the same pattern. The woman is looked at as being incapable of taking care of
herself or being self-sufficient if her husband chooses to violate the marital bed. This law acts
as furtherance to this belief and suppresses any scope for achieving equality in laws
governing both men and women. When personal laws today are efficient and operate for both
sexes as being equals, and women are able to establish their own identity in society without
their husbands, there is no requirement to retain adultery as a criminal offence as well. Hence,
the scope of civil remedies is wide enough to ensure that consequences of appropriate
proportions are faced by those committing adultery. Therefore, adultery cannot be said to be
a criminal offence as the act of adultery is simply effected by ones personal life, whereas, a
crime is an offence against the State. Hence, by rethinking the purpose behind the
criminalization of adultery, and eventually disregarding it as legitimate law the progress of

women from being perceived as helpless to being on par with men and equally self-sufficient,
can be achieved.
But every coin has two sides laws related to adultery is discriminatory in nature.
Political arguments
Laws against adultery have been named as invasive and incompatible with principles of
limited government. Much of the criticism comes from libertarianism, the consensus among
whose adherents is that government must not intrude into daily personal lives and that such
disputes are to be settled privately rather than prosecuted and penalized by public entities. It
is also argued that adultery laws are rooted in religious doctrines; which should not be the
case for laws in a secular state. Opponents of adultery laws regard them as painfully archaic,
believing they represent sanctions reminiscent of nineteenth-century novels. They further
object to the legislation of morality, especially a morality so steeped in religious doctrine.
Support for the preservation of the adultery laws comes from religious groups and from
political parties who feel quite independent of morality, that the government has reason to
concern itself with the consensual sexual activity of its citizens The crucial question is:
when, if ever, is the government justified to interfere in consensual bedroom affairs?
There is a history of adultery laws being abused. In Somerset, England, a somewhat common
practice was for husbands to encourage their wives to seduce another man, who they would
then sue or blackmail, under laws prohibiting men from having sex with women married to
other men.

Historical context
Historically, in most cultures, laws against adultery were enacted only to prevent women
and not menfrom having sexual relations with anyone other than their spouses[citation
needed], since women were deemed their husbands' property, with adultery being often
defined as sexual intercourse between a married woman and a man other than her husband.
Among many cultures the penalty wasand to this day still is, as noted belowcapital
punishment. At the same time, men were free to maintain sexual relations with any women
(polygyny) provided that the women didn't already have husbands or "owners.", Hebrew for
husband, used throughout the Bible, is synonymous with owner. These laws were enacted in
fear of cuckoldry and thus sexual jealousy. Many indigenous customs, such as female genital
mutilation and even menstrual taboos, have been theorized to have originated as preventive

measures against cuckolding. This arrangement has been deplored by many modern
intellectuals.

Discrimination against women

Opponents of adultery laws argue that these laws maintain social norms which justify
violence, discrimination and oppression of women; in the form of state sanctioned forms of
violence such as stoning, flogging or hanging for adultery; or in the form of individual acts of
violence committed against women by husbands or relatives, such as honor killings, crimes
of passion, and beatings. UN Women has called for the decriminalization of adultery. A Joint
Statement by the United Nations Working Group on discrimination against women in law and
in practice in 2012 stated as: "The United Nations Working Group on discrimination against
women in law and in practice is deeply concerned at the criminalization and penalization of
adultery whose enforcement leads to discrimination and violence against women."
Use of limited resources of the criminal law enforcement.
An argument against the criminal status of adultery is that the resources of the law
enforcement are limited, and that they should be used carefully; by investing them in the
investigation and prosecution of adultery (which is very difficult) the curbing of serious
violent crimes may suffer.
The importance of consent as the basis of sexual offenses legislation
Human rights organizations have stated that legislation on sexual crimes must be based on
consent, and must recognize consent as central, and not trivialize its importance; doing
otherwise can lead to legal, social or ethical abuses. Amnesty international, when
condemning stoning legislation that targets adultery, among other acts, has referred to "acts
which should never be criminalized in the first place, including consensual sexual relations
between adults". Salil Shetty, Amnesty Internationals Secretary General, said: "It is
unbelievable that in the twenty-first century some countries are condoning child marriage and
marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual
activity even punishable by death."The My Body My Rights campaign has condemned state
control over individual sexual and reproductive decisions; stating "All over the world, people
are coerced, criminalized and discriminated against, simply for making choices about their
bodies and their lives"

In conclusion, it must be kept in mind that adultery was drafted into the Indian Penal
Code, 1870 during the existence of the Colonial Rule in India. The prevailing conditions at
this time were such that a woman was looked at as being the mere property of a man.
However, in the present day, women are not mere chattel whose identities are defined by the
men surrounding them, but by their own individual personalities. Law, being dynamic in
nature, must evolve with society. Therefore, the dubious logic behind the adultery laws in
India cannot be accepted in todays continuously evolving society.

SUGGESTION
he Fifth Law Commission of India, as early as in 1971 recommended that the exemption of
the wife from punishment for committing adultery be removed from Section 497 IPC. It also
felt that an imprisonment for a term up to five years (stipulated in Section 497) is "unreal and
not called for in any circumstances". The recommended Section 497 reads as:
"497. Adultery.If a man has sexual intercourse with a woman 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, the man and the
woman are guilty of the offence of adultery, and shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both."12
However, the Joint Select Committee substituted the above revised Section 497 by the
following: "Whoever has sexual intercourse with a person who is, and whom he or she knows
or has reason to believe to be the wife or husband as the case may be, of another person,
without the consent or connivance of that other person, such sexual intercourse by the man
not amounting to the offence of rape, commits 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."13 Inspired by the spirit of equality the Fifth Law Commission and the Joint
Select Committee have thus shown their inclination to the equality of the sexes by
recommending equal culpability for the "man" as well as the "woman" for committing
adultery.
Surprisingly, however, for reasons best known to them, neither the Law Commission nor the
Joint Select Committee has shown any sensitivity to the equally pertinent traditional
proprietary rights of the "husband" over his "wife" and to the subordination of woman in the
Indian family institution. Mrs Anna Chandi, one of the distinguished Members of the Fifth

Law Commission, voicing her reservations about the revised Section 497 suggested by her
other colleague Law Commissioners, observed:
"The wife being considered the husband's property, the present provision reserves for the
husband the right to move the law for punishing any trespass on it, while not giving the wife
any corresponding right to complain against any transgressions on the part of or relating to
her husband. Perhaps to make amends for this harsh discrimination, the present section
provides that the wife should not be punished along with the trespasser. The removal of this
exemption clause does not cause damage to the basic idea of the wife being the property of
the husband. On the other hand, it merely restates the idea, and adds a new dimension to it by
making not only the trespasser but the property also liable to punishment. This, as noted
before, can hardly be considered a progressive step."
It is pertinent to note that recently in 1997 the Fourteenth Law Commission, in its 156th
Report on the Indian Penal Code, endorsed, with minor modifications15, the proposal for
reform recommended by the Joint Select Committee. It also stressed that changes suggested
in its revised Section 497 IPC be made in Section 198(2) CrPC16.
The Apex Court, curiously, did not attach any judicial significance to the proposal for reform
recommended by the Fifth Law Commission and of the Joint Committee approved by the
Rajya Sabha. It could have justifiably relied upon these proposals to inject gender equality in
the adultery law. But it preferred to assert, time and again, that it is for the legislature to take
cognizance of the social "transformation" and the changed values as they involve questions of
"policy of law".

CONCLUSION
In most of the foreign jurisdictions, adultery, apart from being a ground for divorce, has been
perceived as a criminal wrong against marriage. Similarly, in these jurisdictions, both the
spouses are generally held criminally responsible for their extramarital sexual intimacy.
However, the penal law of adultery in India is premised on the one-and-a-half century old
caste-based stratified "social setting" in the context of the traditional conservative propertyoriented familial ideology and sexual mores. It is also premised on a few outdated and moot
assumptions of sexuality, sexual agency and unequal mutual marital rights and obligations of
the spouses. It, in ultimate analysis, unmistakably intends to protect the rights of the husband
and not of the wife17. It is also bridled with deep-rooted obsolete assumptions predominantly
premised on gender discrimination and the wife's sexuality. Such a law in the 21st century

undoubtedly seems to be inconsistent with the modern notions of the status of women and the
constitutional spirit of gender equality. During the post-IPC period, a number of Acts have
been enacted to relieve women from the hitherto traditional system of seclusion and
subordination and to assure them a status equal to men in every walk of life. The existing
gender discriminatory penal law of adultery, against this backdrop, deserves a serious relook
and revision to the effect that a person, male or female, who, being married, has sexual
intercourse with a female or a male (as the case may be) not his or her spouses without the
consent or connivance of such spouses be made criminally responsible. Similarly, the spouse
of the errant spouse be allowed not only to seek divorce from the other life partner but also to
initiate legal proceedings with a view to fixing criminal liability of the "outsider" for
wrecking the marriage. The latest proposals for reform of the Fifth and the Fourteenth Law
Commissions of India deserve serious and immediate attention of the legislature18. Such
changes are required to translate the contemporary "social transformation" assuring equality
to women and the constitutional spirit of gender equality into a reality.