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Table of Contents

Topic Page No.

1. Table of Cases 2
2. Adultery in India 3
3. Scope 4
4. Ingredients 5
5. Connivance 6
6. Wife not punishable as an abettor 7
7. Landmark Judgement 8
 Smt. Sowmithri Vishnu vs. Union of India and another
8. Distinction between adultery and rape 11
9. Recent Case Laws 13
10.Statistical Analysis 16
11.Concluding Remarks 18
12.Bibliography 20
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Table of Cases

 Gipps v Gipps

 Smt. Sowmithri Vishnu vs. Union of India and another

 Sivadasan S/o Kunhappan v State of Kerala

 Vinod Samat Patariya and others v State of Gujarat and another

 Dennision Paulraj and others v Union of India and others

 Yusuf Abdul Aziz v. State of Bombay

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Adultery in India

The word `adultery’ has been derived from the Latin term `adulterium’ and

is defined as consensual sexual relationship between a married woman and an

individual other than his/her spouse. Almost all religions throughout the world

condemn it and treat it as an unforgivable offense. However, this may not be

reflected in the legal jurisdictions of the countries but adultery is recognized as a

solid ground for divorce in all penal laws.

The Indian penal code also recognizes adultery as a crime and a punishable

offence. This law comes under the criminal law of India and has been placed

under chapter XX that deals with crimes related to marriage. The laws as stated in

the Indian penal code are:-

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 rape, 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 not be punishable as an

abettor.”
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Scope

Adultery is an offence which is committed by a third person against a

husband in respect of his wife and of which a man alone can be held guilty

meaning thereby that it is an infringement of the rights of a husband towards his

wife and the law of this country regards it as an offence. The object of the law is

to inflict punishment on those who interfere with the sacred relation of marriage,

the reason being that as adultery is an anti-social and illegal act, no peace loving

citizen of good morals would like that it should be permitted to be indulged in

before his very nose. This is the reason that this section makes it punishable and

all classes of persons, irrespective of their caste, creed and color, if they commit

the offence, are governed by this section.

Enticement and detention are not ingredients of an offence under this

section. It is sexual intercourse which is necessary ingredient of this offence under

this section. Nothing short of it will constitute a crime under this section. In a case

of adultery, sexual intercourse must be proved, the sexual intercourse required

for adultery being identical thing as sexual intercourse required for rape.
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Ingredients

1) Adultery is a sexual intercourse by a man with the wife of another person.

2) The offender knows or has reason to believe that the woman to be the wife

of another man. It is not necessary that the offender should know whose

wife she is. It is sufficient that she is a married woman.

3) Such intercourse must be without the consent of the husband. If the

husband consents, it cannot be termed as adultery.

4) Such intercourse is not defined as a rape.

5) Punishment: Five years or with fine or with both.

6) The wife shall not be punishable as an abettor.

7) Adultery is an offence committed by a third person against a husband in

respect of his wife.

8) If a married man commits sexual intercourse with an unmarried woman or

with a widow, it is not adultery.

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Connivance

Connivance, as applied to matrimonial cases, may be defined as the willing

consent to a conjugal offence or a culpable acquiescence in a course of conduct

reasonably likely to lead to the offence being committed. As pointed out by Lord

Chelmsford, in Gipps v Gipps1, connivance is a figurative expression meaning a

voluntary blindness to some present act or conduct or to something going on

before the eyes, or to something which is known to be going on, without any

protest or desire to disturb or interfere with it. To constitute connivance, the facts

established must lead to a direct and necessary interference that adultery would

be committed with the person charged. If the husband permits the adulterer,

knowing to be such to visit his wife, he will be guilty of active connivance. Where

there exists a state of things as would raise a reasonable apprehension in the

mind of a reasonable man that adultery may result and yet the husband does not

interfere, he would be guilty of connivance.

1
(1864) 11 HCL 1
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Wife not Punishable as an Abettor

Ordinarily, the wife would, in cases of adultery, be an abettor and could

have been tried as such. This section, however, makes an express exception in the

case of the wife who shall not be punishable as an abettor. The authors of the

Indian Penal Code explain as to why this course was adopted. They point out that

it would be weighing the scale against women which scale was already too much

depressed by making women punishable for committing the offence of adulator.

Women, according to them, were more often than not mere tools and passive

tools in the hands of men and placed as they were, it was impossible for them to

assist the blandishments that men might hold out against them. The married

woman cannot commit the offence of adultery or its abetment. So far as she is

concerned, adultery is only a serious breach of marital tie according to the social

ideas of the community.

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Landmark Judgment
Smt. Sowmithri Vishnu vs. Union of India and another2

Brief Facts:

Sowmithri and Vishnu were the wife and husband. Disputes arose between them.
She went away from the matrimonial home, and had been living with one Dharma
Ebenezer She filed a divorce petition before the District Judge on the grounds of
desertion.

While the proceedings were pending, the husband filed a criminal case under
Section 497 against Dharma Ebenezer for adultery with his wife. The trial Court
gave the divorce on the ground of desertion. The husband appealed to the High
Court contending that the divorce was granted on the ground of desertion but it
should be on the ground of adultery.

If the divorce is granted on the ground of adultery, Dharma Ebenezer should have
been punished under the offence of adultery. Wife appealed to the Supreme
Court challenging the validity of Section 497. She contended:

(a) Section 497 gives the right to husband to prosecute the adulterer, but it does
not give the same right to wife to prosecute the woman with whom her husband
has committed adultery. It is a gender discrimination and against the spirit of
equal rights given by the Constitution of India.

(b) Section 497 does not confer any right on the wife to prosecute the husband
who has committed adultery with another woman.

2
(AIR 1985 SC 1618)
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(c) Section 497 does not recognize the cases where the husband has sexual
relations with an unmarried woman; with the result that husband has, as it were,
a free license under the law to have extra-marital relationship with unmarried
woman or widow.

The appellant also complained that Section 497 is a flagrant instance of ‘gender
discrimination’, ‘legislative despotism’ and ‘male chauvinism’. She urged that the
Section may, at first blush, appear as if it is a beneficial legislation intended to
serve the interests of women.

But on closer examination, it would be found that the provision contained in the
Section is a kind of ‘Romantic Paternalism which stems from the assumption that
women, like chattels, are the property of men. She also contended that Section
497 is against the Articles 14 and 15 of the Constitution.

Judgment:

While appreciating the arguments of the petitioner-appellant, the Supreme Court

upheld the retention of Section 497. It observed that the Section 497 does not
show any discrepancy between male and female. In fact, it protects the wrong-
doer-wife, who is also accomplice with adultery.

Section 497 clearly exempts the wife. The framers of the Code, and Law
Commission observed the social and economical structure of the society and
family institution. In our society, when a wife of a person enters into sexual
intercourse with a third person, it is a civil death to the husband.
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Hence this peculiar right is given to the husband. Moreover the Section imposes
the liability upon the third person, who has sexual intercourse with another’s
wife, not upon the wife.

The framers of Code strongly believe that it is the man to seduce the woman, but
not woman. If the Section 497 is re-defined the right of action to the third
person’s wife, several Sections of the Code shall have to be re-structured.

For example, ten years punishment is imposed upon the offender of dacoity.
Whereas for the adulterer only 5 years punishment is imposed. Entering into
another’s family life is no less than dacoity. If the same argument is taken into
consideration, at least ten years punishment should be imposed upon the
adulterer. The object of Section 497 is to maintain stability of marriages and
family institutions.

That is why it is included in the special head of “Offences relating to marriages”. If

a married man enters sexual relations with any unmarried girl or widow, there are
several other remedies available to the wife of that husband. Section 497 does
not infringe the provisions of Articles 14 or 15 of the Constitution.

The Supreme Court dismissed the Writ Petition and also quashed the complaint
under Section 497 of the husband, opining that as there was no use to inquire
into the matters of adultery, as the trial Court already granted divorce.

Distinction between adultery and rape
No Adultery
1
Adultery is an offence defined in Section 497
under chapter 20 of the Indian Penal Code,
dealing with the offences marriage
2
Definition :
Whoever has sexual intercourse with a person
who is and whom he knows or has reason to
believe to be the wife of another man, without
the consent or connivance of that man, such
sexual intercourse not amounting to the
offence of rape, is guilty of the offence of
adultery, 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 not be
punishable as an abettor (Section 497).
3
Offence against whom?
Adultery is an offence against the husband.
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Rape
Rape is an offence defined under Section 375 and
custodial rape under Section 376B to 376D. It is
defined in chapter 16 of the Indian Penal Code
relating to offences Affecting the human body.
Definition :
A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse
with a women under circumstances falling under any
of the six following description :
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully
married.
Fifthly - With her consent, when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally
or through another of any stupefying or
unwholesome substance, she is unable to understand
the nature and consequences of that to which she
gives consent.
Sixthly - With or without her consent, when she is
under sixteen years of age. (Section 375)
Offence against whom?
Rape is an offence against the women herself
irrespective of married or unmarried.

4 Consent:
In the case of Adultery the consent of the
woman is immaterial. In fact, the woman is
always a willing and consenting party to sexual
intercourse.
5 Aggrieved Party: The husband is the aggrieved
party.
6 Adultery may be committed only when the
woman is married and she is the wife of
someone.
7 Adultery cannot be commit with
1) an unmarried woman,
2) a widow
3) a married woman when her husband
consents to or connives at it, or
4) a divorced women
8 Punishment :
Adultery is less serious offence and
punishment may extend up to five years
imprisonment or fine or both.
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Consent:
Consent is a defence to rape. In the case of rape of
the offence is committed against the will and without
the consent of the women. However, if the girl is
under sixteen years of age the offence can be
committed even with her consent.
Aggrieved Party : Women herself
Rape can be committed on any women married or
unmarried.
Rape cannot committed when the women has
consented for the sexual intercourse except when
the women is under 16 years of age.
Punishment :
Rape is more serious offence and punishment may
extend upto life imprisonment or ten years which
may be reduced adequate or special reasons.
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Recent Case Laws

Sivadasan S/o Kunhappan v State of Kerala3

The trial court, after considering the evidence on record, found the adulterer (an
auto-rickshaw driver) guilty under Section 497 of I.P.C., and convicted him
thereunder and sentenced him to rigorous imprisonment for one year and a fine
of Rs.2000/-. The appeal filed against the said conviction and sentence was
dismissed by the High Court of Kerala. The counsel for the petitioner argued that
since the complaint was filed after obtaining divorce, he ceased to be the
husband of Shelvi(adulteress) at the time of filing the complaint and
consequently, the trial court ought not to have taken cognizance of the offence
on the basis of the complaint filed by the respondent. The Public Prosecutor also
submitted that since the respondent was not having the status of the husband of
Shelvi at the time of filing the complaint, the trial court ought not to have taken
cognizance of the offence on the basis of the said complaint.

Vinod Samat Patariya and others v State of Gujarat and another4

The wife filed a private complaint against the husband, the father-in-law and the
lady with whom the husband is alleged to be in an illicit relationship. It is the case
of the complainant that being a married man, the husband is in an illicit
relationship with the unmarried woman and is living an adulterous life. It is her
case that the father of the husband has abetted the commission of the offence. In
the same manner, it is alleged that the unmarried woman has also abetted the

3
2016 Indlaw KER 979
4
2016 Indlaw GUJ 1759
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commission of the offence of adultery, as she is in an illicit relationship with a

married man.

The advocate appearing for the applicants submitted that the Magistrate
committed a serious error in taking cognizance upon the complaint and ought not
to have issued process for the offence punishable under Sections 497 of the IPC. It
was submitted that indisputably, the adulteress with whom the husband is
alleged to be in an illicit relationship, is an unmarried lady. She submitted that
even if the entire case of the complainant is accepted as true, none of the
ingredients to constitute the offence punishable under Section 497 of the IPC are
spelt out. She further submitted that the respondent in her capacity as the wife of
the husband has no locus to file a complaint for the offence of adultery. The
appellate court allowed the appeal as the wife did not have locus to file a
complaint as per Section 198(2) of the Criminal Procedure Code.

Dennision Paulraj and others v Union of India and others5

The first petitioner married the sixth respondent. After the marriage, the sixth
respondent demanded the first petitioner an extravagant and ultra modern life
style and made all the other family members as servants for her simple needs and
started picking up quarrels with everyone in the family for no reasons. Hence, the
first petitioner had to prefer a petition under Section 22 of the Indian Divorce Act
for judicial separation. The sixth respondent with an ulterior motive to harass the
petitioners, filed an application under Sections 18, 19 and 23(2) of the Protection
of Women from Domestic Violence Act, 2005.

5
2009 Indlaw MAD 1062
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The main ground of attack on certain provisions of the Protection of Women from
Domestic Violence Act, 2005 are that under the said Act, the husband cannot file
any application, but only the wife can file applications. It is therefore,
discriminatory and biased in favour of the wife affecting the right of life and
liberty to the husband and his relatives, which is violative of Article 14 and 21 of
the Constitution of India. Though Article 15 of the Constitution of India prohibits
discrimination on grounds of religion, race, caste, sex or place of birth, however,
Article 15 (3) states "nothing in this Article shall prevent the State from making
any special provision for women and children". In Yusuf Abdul Aziz v. State of
Bombay6, the Supreme Court, while dealing with the question whether Section
497 of India Penal code contravenes Article 14 and 15 of the Constitution of India,
has held that since sex is a sound classification and although there can be no
discrimination in general on that ground, the Constitution itself provides for
special provisions in the case of women and children by clause (3) of Article 15.
Articles 14 and 15 thus, read together validate the last sentence of Section 497
I.P.C. which prohibits the woman from being punished as an abettor of the
offence of adultery.

6
A.I.R. 1954 S.C. 321
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Statistical Analysis

Adultery

A survey was conducted by Ashley Madison, a global dating website for those
who are married or already in a relationship which recently launched in India.
Responses were collected from 75,321 respondents - 80% were married -- in ten
cities.

What's more, 81% of men and 68% women said their affair has had a positive
effect on their marriage. "In some cases, an affair works as a wake-up call to
repair the relationship," says sexologist Dr Prakash Kothari7, who was stumped
when one of his clients, a rich businessman, said he confessed to his socialite wife
about using an escort service. "He says the family life has become better now as
the wife spends more time with him," says Dr Kothari.

Crime against Women

Incidence: 3,27,3948

A total of 3,27,394 cases of crime against women were reported in the country
during the year 2015 as compared to 3,37,922 in the year 2014, thus showing a
decline of 3.1% during the year 2015. These crimes have continuously increased
during 2011 - 2014 with 2,28,650 cases in 2011, which further increased to
2,44,270 cases 2012 and 3,09,546 cases in 2013, to 3,37,922 cases in 2014. It
declined to 3,27,394 in 2015. Uttar Pradesh with 16.8% share of country’s female
population has reported nearly 10.9% of total crimes committed against women

7
The Times Of India, ‘Most Indians feel infidelity not a sin’ (Oct 5, 2014)
8
Crime In India (2015)
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at all India level, by registering 35,527 cases and West Bengal accounting for
nearly 7.4% of the country’s female population, has accounted for 10.1% of total
cases of crimes against women in the country by registering 33,218 cases during
the year 2015.

HIGHEST CRIME RATE

200

180

160

140

120
CRIME RATE

100

80

60

40

20

0
DELHI UT TELANGANA WEST BENGAL HARYANA ASSAM RAJASTHAN ODISHA
AREA

Rate: 53.99

The crime rate under crimes against women was reported as 53.9 in 2015. Delhi
UT has reported the highest crime rate (184.3) compared to 56.3 at all India level
during the year 2015, followed by Assam (148.2), Telangana (83.1), Odisha (81.9),
Rajasthan (81.5), Haryana (75.7) and West Bengal (73.4).

9
Crime In India (2015)
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Concluding Remarks

Adultery may not seem to be gravest of crimes but it does bring out some
of the direst consequences. The individual committing adultery is always
conscious of the fact that if somehow his/her partner will come to know of
his/her liaison, he/she won’t take it calmly, indeed that person will have to face a
lot of wrath and criticism by the family as well as the society. To be vigilant
against such a result, the felonious party may instigate a fierce attack against
his/her partner, resulting in a critical fault such as abduction or even murder.
Considering Indian laws and the scenario of our society, adultery is definitely a
crime in India.

According to these laws:-

1) Man is always a seducer and the married woman just an innocent

and a submissive victim.
2) Wife is no more than a chattel to her husband and a third person had
committed the crime of intruding upon his marital possession by
establishing a physical relationship with his wife.
3) Only the husband of the treacherous woman (or a person who had
care of the married woman) is a distressed party and he is liable to
file a complaint against the third party.
4) There is no provision in the law for a woman to file a complaint
against her adulterous husband. If a married man commits adultery
with an unmarried woman or a widow or with a married woman with
the consent of her husband, his wife is not regarded as an aggrieved
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party and she is not permitted to make any official grievance against
her husband.

Considering the changes our society has witnessed in recent times, the
Indian penal code must revise these laws and upgrade them keeping in mind the
equality of men and women and enabling women to have more freedom and
liberty in making their choices.
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Bibliography

 Indian Penal Code, 1860 – S.N. Mishra, 17th ed. Central Law
Publication Company, 2012
 Essay on Indian Penal Code, 1860 – K.N. Chandrashekhar, Pillai,
Universal Law Publication, 2012.
 The Indian Penal Code, 1860 – K.D. Gaur, 4th Ed., Universal Law
Publishing Co. Pvt. Ltd, 2013

Webliography

 http://www.insaafindia.in/
 https://indiankanoon.org/
 http://www.advocatekhoj.com/
 http://www.legalserviceindia.com/
 http://timesofindia.indiatimes.com/
 http://ncrb.nic.in/