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Adultery – A conceptual & Legal analysis
0
ADULTERY – A CONCEPTUAL & LEGAL ANALYSIS
1.1. Introduction .................................................................................................. 1
1.2. Adultery – Historical perspective............................................................... 2
1.3. Adultery – Ancient to recent....................................................................... 4
1.4. Adultery : Historical perspectives in India................................................ 6
1.5. Historical Perspective of penal provision on ‘Adultery’ .......................... 8
1.6. “Adultery” in India – Origin and development........................................ 9
1.7. Jurisprudential analysis of ‘Adultery’ ...................................................... 12
1.8. Adultery as an offence – object of............................................................. 13
1.9. Adultery – A logical analysis..................................................................... 14
1.10. What constitute adultery?..........................................................................17
1.11. Philosophy of S. 497 – Promote marital harmony................................... 20
1.12. The legislative package of S. 497 of IPC................................................... 21
a. ‘Adultery’ – Marriage is pre-requisite condition..................................... 24
b. Adultery : Only happens during live marriage....................................... 27
c. Acultery – the validity of Marriage must be proved............................... 27
d. Consent – necessary ingredient to constitute an offence of ‘adultery’.28
e. Adultery – Sexual Intercourse as essential ingredient............................ 31
f. Adultery – Procedural formalities............................................................ 35
1.13. ‘Adultery’ – Analysis of an argument of NCW....................................... 38
1.14. Why Adultery is still punishable?.............................................................39
1.15. Whether S. 497 is still relevant?................................................................. 40
1.16. Conclusion...................................................................................................41
Electronic copy available at: http://ssrn.com/abstract=1856991
Adultery – A conceptual & Legal analysis
1
ADULTERY – A CONCEPTUAL & LEGAL ANALYSIS
Dr. Vijaykumar Shrikrushna Chowbe1
Ph.D., LL.M., M.A., (Eng Lit.), MMCJ (Journ)., B.Sc.
Abstract :
Legal analysis of regulation of adulterous behavior of married person
under different legal systems portrait that the provision of adultery is much
influenced by the social values of ‘sexual morality’ existed at the moment of
formulating the legal provision. In India too, S. 497 of IPC had been drafted
before 150 years during colonial period and since from its inception it has been
whirling into debatable controversies on several accounts such as its gender bias
approach, reflecting cultural conflicts, questioning equality clause and strong
arguments have been raised either for its retention, modification, or complete
deletion from penal statutes. This article has attempted to articulate these
controversies from legal point of view in contemporary India.
This article attempted to analyze the ‘adultery’ from its legal conceptual
base and proceed to examine its effect, impact and co-relation with other aspects
such as marital tie, property claims, over the progeny, remarriage and divorce.
The philosophy, object and justification of legal regulation of adulterous behavior
of a person in society has been examined on time scale so as to make appraisal
whether its retention, modification or deletion is indispensable in present context
or otherwise. The article ends with addressing the question of legal dilemma that
whether the legal regulation of adultery is still relevant, and if yes, too what
extent? The conclusion in this respect is self-explanatory.
Key Words : Adultery, Penal Law, Offence relating to Marriage, History and nature of
Adultery, Object of Adultery, Legal Analysis, Futuristic approach on Adultery
1.1. Introduction
Adultery, in its literal sense, has been defined as a consensual physical
association between two individuals who are not married to each other and
either or both are married to someone else having living spouse. The actual
definition of adultery may vary in different jurisdictions but the basic theme
1 Associate Professor & Head, P.G. Department of Law, Sant Gadge Baba Amravati University, Amravati, )
(State University) India. [See, http://sgbau.ac.in/SGB%20Amt%20Uni%20Website/law.html] Any
academic/research based suggestions, comments or criticisms are welcomed at vijuchowbe@gmail.com.
Thoughts expressed and analyses made in this article are from academic point of view and to address the
research appetite and does not meant to influence or impose upon any thought process or ideology. For
any references usual caveat of author apply. Author appreciate the free circulation of this paper for
academic and research use by keeping author’s moral right intact and by counter intimation to author. ©
to author.
Adultery – A conceptual & Legal analysis
2
is sexual relations outside marital wed-lock.2 Adultery, also known as
‘infidelity’ or ‘extra-marital affair’, is certainly a moral crime and is thought-out
a sin by almost all religions. There is however, difference in the literal, social
and legal definitions.3 The dictionary meaning of ‘adultery’ connotes
voluntary sexual intercourse of a married person other than his or her
spouse.4 Thus, the dictionary meaning of ‘adultery’ signifies gender neutrality
and it may be committed by either of any sex. It proposes three conditions for
commission of ‘adulterous’ act by the person when–
(i) He or she has a sexual intercourse with opposite sex
(ii) Either one or both of them are having living spouse and
knowledge about it.
(iii) Such sexual intercourse is voluntarily committed
From social point of view, ‘adultery’ means an extra-marital voluntary
sexual intercourse between heterosexual persons either or both of them are
married having living spouse. The legal definition of adultery varies from
country to country and statute to statute. 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. In India, the
legal provision under penal statutes signify the ‘female adultery’ where only
the section consider adultery if occour with married woman only.
1.2. Adultery – Historical perspective
The term adultery has an Abrahamic origin, though the concept
predates Judaism and is found in many other societies. Though the definition
and consequences vary between religions, cultures, and legal jurisdictions, the
2 According to Encyclopedia Britannica, Adultery means, sexual relations between a married person and
someone other than the spouse. 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. See, http://www.britannica.com/EBchecked/topic/6618/adultery visited
on 25.05.2011
3 The definition of ‘adultery’ that occour in the dictionary is gender neutral, where, it may be committed by
either of the sex. However, under most of the statutes, it gender favoured and mostly prescribe ‘female
adultery’ which has been webbed around the married woman whose consensual extra-marital sexual
involvement without the consent of her husband is an essential condition of ‘adultery’.
4 “The Concise Oxford Dictionary of Current English”; Sixth Edn; Oxford University Press; p. 15.
Adultery – A conceptual & Legal analysis
3
concept is similar in Judaism, Christianity, and Islam. Hinduism also has a
similar concept.5
Historically, adultery has been considered to be a serious offense by
many cultures. Even in jurisdictions where adultery is not itself a criminal
offense, it may still have legal consequences, particularly in divorce cases. For
example, where there is fault-based family law, it almost always constitutes
grounds for divorce, it may be a factor to consider in a property settlement, it
may affect the status of children, the custody of children, etc. Moreover,
adultery could result in social ostracism in some parts of the world.
It has been observed that sexual relation has found basis of social
relationship in almost all the civilized society in the world. Therefore, there is
strict social sanctions had been imposed on formation, continuation and
regulation of sexual relationship in the society at any given moment of time.
History had evidence that there had been a chain of normative values that
govern and regulate the sexual activities of an individual. The permitted
sexual relationship within the marital wedlock has been found the basis of
marriage institution, which had been thought to be an important institution
for sustaining the society. Historical analysis has revealed that depending
upon the various factors, the different society shows either a clear permission
and prohibition of sexual relationship which may be governed by value based
system of ‘Sexual morality’ which prescribed norms of permitting or
prohibiting sexual relationship between opposite sexes. This permission or
prohibition by socio-religions approval form the basis of ‘marriage institution
’, and any relationship out of marital wed-lock has attracted socio-religious
sanctions. Values those governing sexual morality not only prohibited the
‘adulterous’ behavior of married person, but other act such as homosexuality,
lesbian, incent, relationship had also been prohibited. Beside the same, the
sadomy, bestiality and other format of sexual behavior were neither openly
recognized nor gives rise to any social bondage. Despite there are evidence
that such relations did exist in history, but it did not have any social sanction
as such. Even in the religion, which used to provide the justification,
legitimacy and political backing only permit heterosexuality that gives rise to
procurement of children. The underline philosophy of such normative
pattern was depends upon the continuation of society and procurement of
5 "Encyclopedia Britannica Online, "Adultery"". Britannica.com available at "Encyclopedia Britannica Online,
"Adultery"" visited on 22.03.2011
Adultery – A conceptual & Legal analysis
4
children, which ensure the coming up of next generation on the earth. It was
a philosophical notion that only the heterosexuality and carnal sex secure the
possible outcome of children, only such relationship and sexual orientation
was permitted in the society. Therefore, any sexual orientation, formation,
expression and bondage, which did not have any guarantee of procurement
of children, were prohibited and there was even the punishment inflicted for
such behavior.
But the extent of such prohibition and punishment prescribe varied as
per the values and norms governing the sexual morality in the society.
Different societies display the different degree of social morality which differ
and had correlation with the total sum of morality traits. Thus different
society has varying pattern of sexual morality. Adultery, as understood in
known history of human civilization, was also prohibited as it directly threat the
marital bondage invaded by stranger. Therefore, adultery is also observed to
be relative phenomenon depends upon the values governing the sexual
morality in the society. It has also been governed differently in different
society. In Europe, most of the nations only considered it as civil wrong and
only concern of affected individual family, and not of the ‘State’. But in India,
adultery is punishable offence. In most of the African countries tribes have
open sex pattern and ‘adultery’ has not been considered as socially prohibited
act. There works the different form of ‘sexual morality’. Even in most of the
tribes those mostly reflect matriarchal family, the concept of ‘adultery’ is
altogether invisible.
1.3. Adultery – Ancient to recent
Though the modern trend is to have liberal approach for 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 man was
not heavily punished.6
In ancient Greece and Roman world, there were harsh laws against
adultery but these were applicable only if the female was married. But these
6 It is even interesting to note that Pluto has advocated that the elite class people shall use women in the society
as a property. Even the Aristotle also advocated the similar argument for using wife by elite class people.
Adultery – A conceptual & Legal analysis
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laws were not relevant if a man maintained sexual relationship with a slave or
an unmarried female. The Bible too forbids adultery and the seventh
commandment clearly states this. In customary Judaism, both the parties were
equally responsible for adultery but it applied only if the female partner was
married. Lord Jesus also abhorred adultery and considered that even looking
at a female lustfully is equivalent to adultery. According to ancient Hindu
laws, only the felonious female were punished & killed while the husbands
were considered equal to god and were left off with warnings only.
The legal definition of adultery varies from country to country. Laws
related to adultery vary from statute to statute and at some places adultery is
considered a crime and the adulterer may even have to face death penalty
while at some places it is not punishable. In few statutes, if either individual is
married to someone else, both parties to an adulterous liaison are culpable to
the crime. Christian, Jewish, Islamic and Hindu traditions condemn the act of
adultery and in Islam; the adulterers especially the female may be stoned to
death.
Law must keep pace with changing social needs. Law relating to
adultery in other countries is different from India.7 In the United States of
America, the law relating to adultery differs from one State to another. A
careful perusal of the law relating to criminal adultery prevailing in different
States in the United States revealed that three major formulations of adultery
exist under State laws in the United States, viz.
(i) the common law view (the law of a country or State based on
custom, usage, and the decision of the law Courts, technically
referred to as the English legal system);
(ii) the canon (a law or body of laws of a church);
(iii) the hybrid view.
According to common law view, adultery takes place only when the
woman is married and both parties are held liable. Under the canon law view,
adultery is the voluntary sexual intercourse of a married person with a person
other than the offender’s husband or wife and only the married person is
guilty. According to the hybrid rule, followed in twenty States in the United
7 Prof. K. D. Gaur in his book has given a precise account of the law relating to adultery in other countries. He
said that the attitude of criminal law towards adultery varies from country to country. See for more details,
Gaur (Dr.) K.D., A Text Book on the Indian Penal Code by K. D. Gour (2004, Ed.). pg 734
Adultery – A conceptual & Legal analysis
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States, if either spouse has sexual intercourse with a third party both
transgressors are guilty of adultery. Finally, eight States held both
transgressors guilty, if the woman is married, but if the woman is single only
the man is guilty. Six States do not punish adultery at all.
While adultery is not a criminal offence8 in Britain, it is punishable,
though mildly in some of the European countries. For instance, in France, a
wife guilty of adultery is punishable for a period ranging from three months
to two years of imprisonment. The husband, however, may put an end to her
sentence by agreeing to take her back. The adulterer is punishable similarly.
In Germany, if a marriage is dissolved as a result of adultery, the guilty
spouse as well as the guilty partner, is punishable with imprisonment for a
term of not less than six months, but prosecution has to be initiated by the
aggrieved spouse by means of a petition. In Malaysia and Singapore adultery
is not punishable in law.
In Pakistan, adultery is viewed as a heinous offence and both the man
and woman are subjected to punishment, which may extend to the death
sentence. In Islamic countries, such as Saudi Arabia, Iran, Egypt, etc. also like
Pakistan, adultery is punished severely.9
1.4. Adultery : Historical perspectives in India
Barring few exceptions of tribal communities, the evolutionary
development of family institution in India portrait patriarchal pattern, and
thus, the permissible marital tie prescribe strict restriction on sexual behavior
of married couple, especially of woman. The reflection of such normative
pattern in the sexual activities reflected in many incidences. Formation of
permissible sexual relationship need social sanction and only monogamy,
polygamy, polyandry types of sexual intercourse had social recognition.
However, in few societies’ practices like “keep”, “slave keeping”, “Muta
marriage” has also observed as a practice. Thus, one common, though not
universal, feeling has been observed throughout the history about the
8 In Britain, Adultery is merely a civil wrong.
9 In Islamic Countries including Pakistan, adultery is an offence called ‘Hena’ for which the punishment of
stoning has been prescribed by putting a married adulterous woman under the ground upto shoulder.
Adultery – A conceptual & Legal analysis
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adultery, that it is prohibited norms in one or the other form in every form of
society.10
This is to be noted down that adultery shall be put on different aspects
of criminal behavior than other crime mentioned under the penal statutes.
Adultery does not have the grave effect on the society, or rather it does not
pose threat to the peaceful existence of society as in the other cases of crime
such as murder, dacoit, theft, grievous hurt, public tranquility, defamation,
rape etc,. The similar is the thing about the punishment for adultery. It can
be argued that the punishment to the person committing adultery is not and
cannot be a remedy for a person aggrieved of adultery. The object of
prosecution for adultery is more often to reach a settlement with the offender
at the mercenary level and seldom to send the offender to jail. In fact this was
the very reason why the offence of adultery did not figure in the very first
draft. To this extent, the conditions are not appreciably different even today.
The existence of Section 497 has no apparent affect on society. Acknowledging
this most western countries have decriminalised adultery. It is not a crime in
most countries of the European Union, including Austria, the Netherlands,
Belgium, Finland, Sweden and even Britain from whom we have borrowed
most of our laws.11 In the United States, in those states where adultery is still
on the statute books, offenders are rarely prosecuted. However, it still
remains part of discussion in this research paper that whether adultery shall
be made punishable at all in 21st century or it shall be dealt in the like manner
such as other western countries by decrimnalising it.
Historically in India, ‘adultery’ had been considered as an anti-social
activity and prohibited by law. However, the concept and understanding
about the adultery in ancient period and modern period is little bit different,
and punishment also differs. The ancient code of Manu merely provided for
varying range of punishments for offence of adultery ranging from simple
repentance to the ghastly burning of the offender. From the Manu’s thought it
enough for a high cast man committing this offence with law caste woman to
10 Exception to the legal definition of adultery has also been observed under Muslim personal law. The minor
Muslim girl, if married before attending puberty, has option to deny the marriage and may have sexual
relation with a person other than her husband by opting for ‘option of puberty’. The sexual intercourse
other than husband of such woman without consent does not amount to an adultery, as marriage of that
woman itself is in question and as a principle, existence of marriage is basic requirement of adultery.
11 The reason for declaring ‘adultery’ as an offence is due to the reason that First Law Commission had drafted
the first penal statutes in India based on the existing law at Britain, but modified it on the line of socio-
political requirement prevailing in India at that time.
Adultery – A conceptual & Legal analysis
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repent, it is reasonable to conclude that in Manu's views adultery is not per se
an offence involving moral depravity. Hindu Matrimonial Laws do not make
a single act of adultery as valid ground for granting divorce.12 Thus
according to Manu, the relationship of upper caste man with lower caste
woman is not adultery, but adverse was the case of adultery.
1.5. Historical Perspective of penal provision on ‘Adultery’
In India, the provision on ‘adultery’ under the penal statutes has gained
controversy from its inception. The main architecture of Indian Penal Code,
Lord Macaulay, was against the insertion of such section in the original draft
and wanted to keep it out of the purview of penal statutes. According to him,
such inclusion will unnecessary and unwarranted and shall be left to the
society to take care for. Therefore the first proposed original draft of Indian
Penal Code did not have any such provision. But it was included latter on.
The enacted first penal legislation in India contained the offence of
adultery which was put under Chapter XX that deals with the Offences
Relating to Marriage. It contained four sections [494-498]. Thus the section as
it was stand in the penal statutes prescribed that if a man, married or
unmarried has voluntary and consensual sexual intercourse with a married
woman, without the connivance of her husband, he would be criminal held
liable for the offence of adultery.
The plain reading of this section clearly manifested the original
prejudices in the mind of the framer of this section. Thus from the inception
of S. 497, it was so drafted to make man guilty, and complete shield to the
wife, even she may be the active participant in the commission of an offence.
The further analysis of this section unequivocally conveys that a man alone
can commit adultery and the woman (adulteress) is not liable even as an
abettor. Whatever may be justification, or social necessity, this section clearly
from its inception put this presumption on legislative agenda that whether
the woman is a victim of adultery or is herself an adulteress, she is completely
free of being penalized for offence of ‘adultery’.
The feminists also raise the objection on the S. 497 as it portrait
prejudice of wife as property of her husband. According an argument has
been raised that dubious as all the meanings of the word are, the one chosen
12 Bharat Heavy Plates & Vessels Ltd. vs Sreeramachandra Murthy (1988) IILLJ 22 AP [para 11]
Adultery – A conceptual & Legal analysis
9
in S. 497 of IPC entrenches male control over women. The inferences that can
draw from this law are twofold. One that the man owns his wife sexually,
and his consent is necessary to gain sexual access over her. Second, the
offence of adultery is legally equivalent to that of theft, the goods being the
wife’s body. Women are therefore, denied agency, whether they themselves
have committed adultery (as understood generally) or are married to men
committing adultery.13 However, both these arguments are not tenable as S.
497 is the part of group of four sections (494-498) which are related to
marriage and does not fall in the category where theft and other offences fall.
1.6. “Adultery” in India – Origin and development
It is pertinent to note that the original draft of IPC prepared by first
Law Commission was silent about the offence of ‘adultery’. Lord Macaulay,
who was unwilling to add the provision criminisling the adultery as an
offence, observed, "There are some peculiarities in the state of society in this
country which may well lead a humane man to pause before he determines to
punish the infidelity of wives."14 The basic objective of keeping ‘adultery’ out
of the penal statute was the social norms which has already provided the
values and norms which take care of such instances. The circumstances he
referred to included child marriage and polygamy. Macaulay, hence, advised
that it would be enough to treat it as a civil injury. Thus, framers of the Code
did not include adultery as a crime; it was only after the recommendation of
the Second Law Commission it was added to the Code.15
Thus, it is on the record that the framers of the Code did not make
adultery an offence punishable under the Code. But the Second Law
Commission, after giving mature consideration to the subject, came to the
conclusion that it was not advisable to exclude this offence from the Code.16
The Second Law Commission thought otherwise and said it would not be
proper to leave the offence out of the IPC and suggested that only the man be
punished, again keeping in mind the condition of women in the country.
13 Gangoli Geetanjali, Indian Feminisms : Law patriarchies and violence in India, Ashgate Publishing
Company USA, 1st Ed.2007. pg. 61
14 See, Comment on the draft of first Law Commission Report. Gaur K.D., Indian Penal Code. Eastern Law
Publication, 2nd Ed. Pg. 388.
15 Ratanlal & Dhirajlal, 2 Law of Crimes at 2710 (Bharat Law House 26th ed 2007) (C.K. Thakker and M.C.
Thakker, eds).
16 Ratan Lal and Dhiraj Lal’s Indian Penal Code (Enlarged Edition) 29th Edition, 2002, page 2305.
Adultery – A conceptual & Legal analysis
10
The argument given that why the wife would not be punished has been
provided as follows :—
“Though we well know that the dearest interests of the human
race are closely connected with the chastity of woman and the
sacredness of the nuptial contract, we cannot but feel that there are
some peculiarities in the state of society in this country which may
well lead a humane man to pause before he determines to punish
the infidelity of wives. The condition of the women of this country
is, unhappily, very different from that of the women of England and
France; they are married while still children; they are often neglected
for other wives while still young. They share the attention of a
husband with several rivals. to make laws for punishing the
inconsistency of the wife, while the law admits the privilege of the
husband to fill his ‘zenana’ with woman, is a course which we are
most reluctant to adopt. We are not so visionary as to think of
attacking by law an evil so deeply rooted in the manners of the
people of this country as polygamy. We leave it to the slow, but we
trust the certain, operation of education and of time. But while it
exists, while it continues to produce its never failing effects on the
happiness and respectability of women, we are not inclined to throw
into a scale, already too much depressed, the additional weight of
penal law.”17
Thus, in India, a wife is not punished as an adulteress or an abettor for
the offence of adultery. It is only the man who has such unlawful sexual
intercourse with married woman will be punished under S. 497, I.P.C.
Moreover, the wife of the adulterer has no locus standi to file a complaint
against her deviated husband. It is only the husband of the (adulteress) wife
who can file a complaint and upon whose complaint the Court can take
cognizance of the offence. This position of law regarding making complaint
has been clearly provided under Cr. P.C.18 Section 198(2), Cr. P.C. treats the
husband of the (adulteress) wife an aggrieved party and not the wife of the
adulterer husband.
17 Gaur (Dr.) K.D., A Text Book on the Indian Penal Code (2004, Ed.). pg 734
18 See, S. 198(2) of Cr, P. C. 1973
Adultery – A conceptual & Legal analysis
11
The object of making ‘adultery’ as an offence and restricting it to ‘Man’
alone was to deter ‘Man’ from taking advantage of woman starved of the love
and affection of her husband and deter Man from having sexual relations
with the wife of other man. Since men had the social sanction to maintain
such relations and women were starved of the love and affection of their
husbands, women were treated as the victims and not the authors of the
crime. When Section 497 was enacted there were no codified personal and
matrimonial laws like today but they were unequal and inoperative.19
Apart from IPC, there is one other penal legislation in India that
regulate ‘Adultery’ in India. Ranbir Penal Code, 1932 especially applicable to
the State of Jammu and Kashmir is one such legislation. It provides under S.
497 for the punishment for the offence of adultery, it reads.
“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 a case the wife shall
be punishable as an abettor.”20
It is important to note that a bill in 1972 as the Indian Penal Code
(Amendment) Bill, 1972 suggested that special privileges granted to woman
under S. 497 of the Code be done away with. However, the amendment of the
section could not be carried out and law remains as it was when enacted in
1860.21 It is pertinent to mention here the recommendation of the Law
Commission of India in its 42nd report regarding the provision of adultery in
I.P.C. The recommendation22 was as follows :—
“20.18. After much discussion and careful consideration, we
are of the opinion that the exemption of the wife from punishment
under S. 497 should be removed, that the maximum punishment of
five years imprisonment prescribed in the section is unreal and not
19 See Varad Deore, A Provision Redundant in Penal Law in Changed Legal and Social Context, available at
http://www.legalserviceindia.com/article/l291-Adultery.html visited on 23.01.2011
20 Ibid
21 Ibid
22 Legal and Constitutional History of India, 2001 Reprint, page 379.
Adultery – A conceptual & Legal analysis
12
called for in any circumstances and should be reduced to two
years, and that with these modifications, the offence of adultery
should remain in the Penal Code. It is accordingly recommended
that the section may be revised, as follows :
‘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 woman are guilty of the offence of adultery, and
shall be punished with imprisonment of either description of a
term which may extend to two years, or with fine, or with both.’23
Thus the proposal of Law Commission is to bring the section of the line
of gender neutrality without discriminating the two different sexes and
making them criminally liable in equal degree. However, the Law
Commission had proposed the lesser degree of punishment.
1.7. Jurisprudential analysis of ‘Adultery’
In order to understand the true nature of ‘adultery’ it is essential to
understand the modality of legislative framework. There are certain clues
which can be gathered to understand the true nature of offence. The first clue
to understand the offence of ‘adultery’ under Indian Penal Code may be got
by ‘heading’ of the chapter under which it has been placed. It has been
placed under Chapter XX of the IPC describing ‘Of offences relating to
marriage’. Thus the four sections 494 to 498 (including 498A) are related with
marriage. Thus, the close scrutiny of these provisions clearly revealed that
the provisions are so drafted to preserve the sanctity of marriage institution.
May it be bigamy, adultery, cruelty or criminal abduction of wife, all
provisions are drafted keeping central theme in the mind focusing the
marriage institution, it preservation, protection and promotion of harmony.
Society abhors marital infidelity. The object of Section 497 of the IPC is to
preserve the sanctity of marriage.24 The following points will help to
understand the different facets of provision relating to ‘adultery’ under the
law.
23 Quoted from, Gaur (Dr.) K.D., A Text Book on the Indian Penal Code by K. D. Gour (2004, Ed.). pg 734
24 See, Recommendation of V.S. Committee Chaired by Justice V.S. Mallimath; “The Report of the Committee
on Criminal Justice Reforms”; 2002; Para 117. The committee has however, recommended for
modification of S. 497 of IPC to bring it on the line of gender neutrality.
Adultery – A conceptual & Legal analysis
13
1.8. Adultery as an offence – object of
The object of the provision relating to ‘adultery’ under the principle
penal legislation of India25 shows clear departure from the known principles
of criminal law, and cannot be understood its basic object on general
principles of criminal law. As well known presumption under criminal law,
the law punishes to the person who, with guilty mind involve in the criminal
act. However, S. 497 clearly provide immunity to the wife despite she
portraits to be actively involved in ‘adulterous’ act. The provision relating to
‘adultery’ has been so drafted to provide protection to family as an institution,
protection of woman from dominated class and prevent any damage to either
spouse due to the ‘adultery’ which has already hampered the ‘faith’ amongst
them. In V. Revathi case26 Apex Court had an occasion to express its view
about the object of penal provision of ‘adultery’.
First of all, it has to be understood that S. 497 on ‘adultery’ is shield to
defend, not sward to tear off the marital relationship. It does not provide any
of the spouses to use it as a sward to settle account against each other.
Therefore, the law relating to ‘adultery’ under Indian Penal Code has been
drafted and designed in such at way that a husband cannot prosecute the wife
for defiling the sanctity of the matrimonial tie by committing adultery. Thus
the law permits neither the husband of the offending wife to prosecute his
wife nor does the law permit the wife to prosecute the offending husband for
being disloyal to her. Thus both the husband and wife are disabled from
striking each other with the weapon of criminal law.27 The basic object of the
S. 497 of IPC is to promote the interest of marriage institution. S. 497 of the
IPC, 1860 does not enable either Husband or wife to send each other to jail. 28
Another probable object of provision on ‘adultery’ in its present form
u/s 497 has been designed to protect the interest of the children. 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 parent. Whether one does or
does not subscribe to the wisdom or philosophy of these provisions is of little
25 The Indian Penal Code, 1860 is considered as principal penal legislation in India.
26 See, for more detail, V. Revathi v. Union of India & others 1988 Cri. L. J. 921
27 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [Para 3 pg. 922]
28 See, for detail, V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P.
Thakkar and Murari Mohan Dutt JJ Divn Bench) [paras 5, 6]
Adultery – A conceptual & Legal analysis
14
consequence. For, the Court is not the arbiter of the wisdom or the philosophy
of the law. It is the arbiter merely of the constitutionality of the law.29
Yet another object underline the offence of ‘Adultery’ and not
punishing woman but still existed in the code because at the time when the
law was enacted, polygamy was deeply rooted in the society and woman
shared the attention of their husbands with several other wives and
extramarital relations. Woman was treated as victims of the offence of
adultery as they were often starved of love and affection from their husbands
and could easily give in to any person who offered it or even offered to offer
it. The provision was therefore made to restrict Man from having sexual
relations with the wives of other man and at the same time to restrict their
extra marital relations to unmarried women alone.30 However, this
presumption though sounds popular and rational does not stand on the socio-
political test. It is hardly difficult to believe that existence of polygamy and
victimization of woman during the period of 1860 would have influenced the
legislation to safeguard the woman by providing her immunity from legal
sanction. If legislature would want to regulate the polygamy, who hardly did
so, the drafting of S. 497 would definitely had different shape.
1.9. Adultery – A logical analysis
Adultery, in the present form in the penal statutes need some
consideration from logical point of view. If one has taken a paid to analyse
the provision of adultery from logical point of view, it will leads to absurdity.
The provision for adultery in the Indian Penal Code (IPC), is not only old-
fashioned, but also leads to illogical outcomes. A plain reading of S. 497 of the
Indian Penal Code reveals the following points for consideration to constitute
the offence of adultery under this section-
One must have a sexual inter-course with a wife of another man
The person having sexual intercourse must have knowledge or has
reason to believe that the woman is a wife of another man.
Such sexual intercourse must be without the consent of or connivance
of the husband
29 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [paras 5, 6]
30 See Varad Deore, A Provision Redundant in Penal Law in Changed Legal and Social Context, available at
http://www.legalserviceindia.com/article/l291-Adultery.html
Adultery – A conceptual & Legal analysis
15
Such sexual intercourse must not amount to rape
- the section encompasses the incidences of consensual sex since it
speak about the sexual intercourse between opposite sexes. Thus, it keeps
away from its ambit the unnatural offences, and even if it happens in the
cases enumerated above, this may fall u/s 377, and not amount to ‘adultery’.
Secondly, this section gives blind clean chit to the woman, thus only the man
can be prosecuted. This implies that a woman cannot be guilty of the offense
of adultery in India, as a woman having a sexual intercourse with the
husband of another woman, is not covered by this section. The wife is not
punishable for being an adulteress, or even as an abettor of the offense,
despite having agreed to commit the offence of adultery.
If the above four points are taken into consideration, and if the
incidences of ‘sexual intercourse’ are taken into account under the following
four different scenes, the case of ‘adultery’ can be put as under –
Sr.
No
Persons
involved in
sexual
intercourse
Whether
offence of
Adultery met
out?
Who can sue?
Who Can
be Sued Who
cannot be
sued?
1 MM + MW Adultery Husband of
MW MM MW -
immune
2 UM + MW Adultery Husband of
Married
woman
UM MW -
immune
3 MM + UW/DW
NO adultery
Nobody Section
does not
apply
4 UM + UW/DW No Adultery Nobody Section
does not
apply
MM = Married Man; MW = Married Woman; UM = Unmarried Man; UW =
Unmarried woman; DW = Divorced Woman
Thus, from above table, it is crystal clear that two ingredients u/s 497 of
the Indian Penal Code, i.e. only aggrieved husband can sue, and aggrieved
wife cannot sue creates lot of difficulties. Again the section provides remedial
weapons only to husband and complete legal immunity to the wife. Further,
Adultery – A conceptual & Legal analysis
16
section does apply to unmarried persons, or any adulterous act where
married woman having living husband is not involved. This illogical
absurdity can be further illustrated with the help of following incidences.
Supposing that in any society, there are unmarried man [UM], two
Married Couples [MM1 & MW1; MM2 & MW2], and unmarried woman
[UW]. Now consider following case -
Case No. 1.: If the Unmarried Man [UM] has sexual intercourse with
the Married woman [UW1]. In this case, the adultery
happens and husband of the Married woman [MM1]
can file complaint against unmarried Man [UM].
However Married Man [MM1] cannot file complaint
against his wife [MW1] as she has immunity in the eye
of law.
Case No. 2.: If the Married Man [MM1] has sexual intercourse with
the Married Women [MW2] [or the reverse case MW2
has sexual intercourse with MW1], the offence of
adultery happens. In this case the husband of Married
Women [MM2] can file complaint against Married Man
[MM1], but he cannot file complaint against his wife.
At the same time, the wife of adulterous Married Man
[MW1] does not have remedy, despite her husband
[MM1] is involved in the adulterous act. Thus, in
between both the married pair, in either case of
adultery, only adulterous husband can be prosecuted
with complete immunity to wife, but the wife of
adulterous husband does not have any remedy to
prosecute her husband.
Case No. 3.: If the Married Man [MM1 or MM2] has sexual
intercourse with the Unmarried Women [UW] the
adultery does not takes place as section only prescribe
the adulterous act with married woman. In this case the
wife of adulterous husband [MW1 or MW2 as the case
may be] does not have any remedy, despite her
husband is involve in sexual relation with the stranger.
Adultery – A conceptual & Legal analysis
17
Thus, S. 497 leads to certain absurdity on logical ground. As it only
provide the key to take initiative of ‘adultery’ in the hand of husband, only he
can decide whether to proceed or not, but his choices to take action against
the person involve in adulterous act is also limited and he can only proceed
against the outsider, not against his wife. On the other hand, the wife has
been given complete immunity; therefore she cannot be prosecuted for the act
of adultery.31
Thus, on logical preemies, S. 497 does not pass the test. This may be
due to the reason that S. 497 has been drafted keeping altogether different
object in the mind. Therefore, it is necessary to touch upon the philosophical
backing of S. 497 and socio-political conditions in which this section had been
drafted.
1.10. What constitute adultery?
It is even more interesting to note that what constitute adultery and how
the adultery is being committed. The relevant provision of S. 497 of the IPC runs
as under-
"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."32
Thus the adultery under Indian Penal Code has several characteristic
features that make it special provision. First the section is gender sensitive
and can only committed by man and not by the woman. As it stands, this
section makes only man criminally held liable who commits sexual
intercourse with the wife of other man without the consent of her husband
and such act has been punishable and woman cannot be punished even as
abettor. Thus the offence cannot be leveled against the woman. Secondly,
such offence must be committed by the offender with the knowledge or with
any reason to believe that the woman with whom he is undergoing a sexual
intercourse is the wife of another man. In short, the offence has been
committed while the marriage of the woman with whom the sexual
31 For more detail on shortcoming of S. 497 of IPC see, Kumar K (Adv.), Punam Rani, Offences against
women : Socio-legal perspectives, Regency Pulication, New Delhi, 1st Ed. 1996, Pp 224-226
32 Section 497 of the Indian Penal Code, 1860.
Adultery – A conceptual & Legal analysis
18
relationship has been established shall be in force. Thirdly, the consent of the
wife shall be free and without any force. In case the consent of the wife is not
free consent, it will amount to be a rape, which is more serious. Fourthly the
section has demarcated that who can prosecute and who can be prosecuted.
Under S. 497, only the husband of the wife who has been involved in
adulterous act can only file complaint and only against the adulterous. The
section also protects the wife against adulterous act and complete protection
under the section.
In short, the S. 497 of the IPC cover only the sexual intercourse that took
place with the woman whose marriage has been alive and the consented
sexual intercourse of her with the person other than her husband. S. 497 are
therefore not applicable in several circumstances. First, if the sexual
intercourse has not been taken place, the ingredient of S. 497 cannot be got
completed. Secondly, if the adulterous man successfully raise the plea of
innocence about the marriage. Thirdly, if he has been safeguarded by any of
the general exceptions and he may raise the plea to get free from the criminal
liability so imposed.
It shall be noted down that there are similar kinds of sexual offences
which forms the species but different in its aspects and context than S. 497. A
few offences may be quoted here as a example such as, S. 376, S. 494, S. 354.
However, despite these offences may also involve the sexual intercourse out
of marital wedlock the offences of adultery is altogether different than these
offences.
The first difference that demarcates the line between S. 497 and these
offences is the ingredient of the “consent” of the woman. In all other sections
except, S. 497, the woman does not have a consenting party.33 However, u/s
497, consent of the woman is very important. If the woman does not consent
for the sexual intercourse, such act will be of forceful sexual intercourse
without the consent of the woman, and thus amount to a rape. The exception
is only with respect to the wife above the age of 16 years.34 In case of the wife
below 16 years of age, even unconsented sexual intercourse with her husband
33 Or even if the consent of woman has been taken under these sections referred above, this consent is not free,
or under the impression which misleads the victim.
34 If the wife u/s 497 is below the age of 16, her consent will not be treated as free consent, as she does not
attend the age of majority to give her consent. However, in present context, it is difficult as the percentage
of child marriage is low, except in few area of India. Thus if the wife u/s 497 has been reported to have
age below 16, it will fall u/s 376.
Adultery – A conceptual & Legal analysis
19
also amount to rape, but above 16 years age, it does not amount to be rape.
In case of S. 454 & S. 494 the former speaks about the ‘outraging the modesty
of women and latter speaks about the bigamy. S. 454 happens in case the
woman has not been given consent. While S. 494, even the though the
consent of the woman is there, there must be a marriage of both the parties
while the earlier marriage is still alive and not been terminated. Again, in
case of S. 354 & S. 376, the state is the aggrieved party and anybody can file an
FIR and take cognizance. While S. 494 or S. 497 is initiated only on the
complaint of the complainant who is generally the husband of the wife.
There is interesting case in hand which differentiate the different
between S. 497 and S. 376. In Chemon Garo v. Emperor35 the original case had
been filed u/s S. 376 and prosecuted the accused for committing the rape with
married woman. However, during trial, it has been revealed by the evidences
that woman was the consenting party in the offence, and thus instead of
punishing the accuse u/s 376, the Session Court punished the accused of S.
497 for adultery. In High Court accuse had raised the plea of procedural
lacuna, as the case was instituted u/s 376 and not u/s 497. Thus, the formal
“complaint” had not been lodged by the husband as required u/s 497 and S.
199 of the Cr.P.C. the Prinsep and Stephen, JJ. set aside the conviction of the
accuse as without jurisdiction. Court observed-
“…..the circumstances of his (the husband's) appearing as a
witness in the prosecution of that offence can be regarded as
amounting to the institution of a complaint for adultery in the sense
of Section 478.36 The expression 'complaint' is a perfectly well-
understood one, and Section 142 of the Criminal Procedure Code
(of 1872) in terms prohibits a Magistrate from taking cognizance of'
a case without complaint when it falls under Chapter XX of the
Penal Code within which is included Section 497. It by no means
follows, as a necessary consequence, that because a husband may
wish to punish a person, who has committed a rape upon his wife,
that is, who has had connection with her against her consent, he
will desire to continue proceedings when it turns out she has been a
willing and consenting party to the act. At any rate, if a criminal
charge of adultery is to be preferred, a formal complaint of that
35 (1902) ILR 29 Cal 415
36 Nw S. 199 of the Cr. P.C. 1973.
Adultery – A conceptual & Legal analysis
20
offence must be instituted in the manner provided by law, and if it
is not, Section 478 (Section 199 of the Code of 1898) will not have
been satisfied.”
Thus, S. 497 stands totally on different footing and neither all sexual
offences between opposite sex fall under this section, not this section attract in
all the cases of consented sexual relation. It only attract when a woman or
man has sexual intercourse with outsider than their own spouse while his or
her marriage is still alive. However, there are one exception observed where
the Allahabad High Court had upheld the judgement of U. P. Public Service
Tribunal of dismissing the employee on the ground of ‘Adultery’. Thus, in
Ex-Constable Kishori Lal Sharma vs U.P. Public Service Tribunal37 the constable
had been dismissed from the service. Court observed that it can be
reasonably inferred that since a woman who is not married with of the
Constable having her spouse alive and marriage not yet terminated, is living
with the petitioner she is having sex with him also. Having sex with the
another man's wife is adultery as defined in Section 497 of IPC. Hence the
petitioner has committed criminal offence and was dismissed from service.38
In this case, however, the action had been taken by U.P. Service Tribunal,
despite S. 497 required that only aggrieved husband can only take cognizance.
It may had mute notion that since employer has discretion to dismiss its
employee on the ground of moral turpitude, the judgement may be justified,
though the procedural and technical requirement of S. 497 has not been met
out.
1.11. Philosophy of S. 497 – Promote marital harmony
Law in any modern civilized society is necessary outcome of social
necessity. As marriage is important social institution, law must protect,
promote and preserve this institution. Therefore, the adultery which is
primarily used to disturb the marriage institution, the law dealing with such
felonious act must adopt the ‘healing up’ approach and ‘make up’ attitude to
this institution.
37 2004 (2) AWC 1434, (2004) 2 UPLBEC 1201
38 It is still a debatable issue that how far the employer has rights to take cognizance of S. 497 of IPC? And
without any criminal trial, employer can take a decision to terminate the services of his employer?
However, Court did not touch the issues of tenability of decision of employer on these grounds
Adultery – A conceptual & Legal analysis
21
The Apex Court in V. Revathi case39 has underlined the ideology
behind the adultery as an offence and expressed that S. 497 targeted to
achieve the goodwill between husband and wife. The philosophy underlying
the scheme of S.198(2), Cr.P.C., and S.497,I.P.C., appears to be that as between
the husband and the wife social goodwill be promoted by permitting them to
"make up" or "break up" the matrimonial tie rather than to drag each other to
the Criminal Court. 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. 40
Court in V. Revathi case expressly mentioned that the object of S. 497 is
to promote social harmony. Court says, that the philosophy underlying the
scheme of these provisions appears to be 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.
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 parent. Whether
one does or does not subscribe to the wisdom or philosophy of these
provisions is of little consequence. For, the Court is not the arbiter of the
wisdom or the philosophy of the law. It is the arbiter merely of the
constitutionality of the law. 41
Therefore, at the first instance, S. 497 of the Indian Penal Code does not
touch either husband or the wife. It only provides an opportunity to husband
to punish stranger to his marriage institution, but at the same time provide
immunity to wife. If he desires, he may either forgive his wife, or institute
another suit to dissolve marriage by divorce on the ground of adultery.
1.12. The legislative package of S. 497 of IPC
Section 497, Penal Code and S.198(1) read with S.198(2), Criminal P.C.,
go hand in hand and constitute a legislative packet to deal with the offence
39 See, for more detail, V. Revathi v. Union of India & others 1988 Cri. L. J. 921
40 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (Justice M. P. Thakkar
and Justice Murari Mohan Dutt JJ Division Bench) [paras 5, 6]
41 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (Justice M. P. Thakkar
and Justice Murari Mohan Dutt JJ Division Bench) [paras 4]
Adultery – A conceptual & Legal analysis
22
committed by an outsider to the matrimonial unit who invades the peace and
privacy of the matrimonial unit and poisons the relationship between the two
partners constituting the matrimonial unit. 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. It does not arm the two spouses to hit each other
with the weapon of criminal law. That is why neither the husband can
prosecute the wife and send her to jail nor can the wife prosecute the husband
and send him to jail. There is no discrimination based on sex. While the
outsider who violates the sanctity of the matrimonial home is punished a
rider has been added that if the outsider is a woman she is not punished.
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 in so far as she is not permitted to prosecute her husband. A husband
is not permitted because the wife is not treated an offender in the eye of law.
The wife is not permitted as S.198(1) read with S.198(2) does not permit her to
do so. In the ultimate analysis the law has meted out even - handed justice to
both of them in the matter of prosecuting each other or securing the
incarceration of each other. Thus no discrimination has been practiced in
circumscribing the scope of S. 198(2) and fashioning it so that the right to
prosecute the adulterer is restricted to the husband of the adulteress but has
not been extended to the wife of the adulterer. Thus, S. 198(2) is not
vulnerable to the charge of hostile discrimination against a woman.42
The second basic ideology that influenced the drafting of provision of
adultery in Indian Penal Code is protective approach. The circumstance in
which the penal code was drafted in India was the period when society was
made dominated and law used to look the woman as a section of society that
is victimize under made dominance. Thus the offences related to sexual
crimes are mostly underline this ideology that woman is always victimize by
man. Therefore, in the cases of adultery, there is no surprise that law would
have looked wife as a victim and awarding punishment to her would
42 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [paras 5, 6]. In the instance case, the court was also relied on
Sowmithri Vishnu v. Union of India. AIR 1985 SC 1618.
Adultery – A conceptual & Legal analysis
23
otherwise means victimization followed by punishment. The contemplation
of the law43 evidently is that the wife, who is involved in an illicit relationship
with another man, is a victim and not author of the crime.44
Another possible rational that tempted draftsman to free the ‘woman in
general and wife in particular’ from the offence of adultery would be the
scientific and social presumption in favour of woman in cases of sexual
activities. Man and woman are biologically different and both face different
biological consequences of sexual intercourse. While there are hardly any
express changes occour in man, the sexual intercourse would possibly leads in
pregnancy to the woman.45 Pregnancy obligated by stranger out of marital
tie or by the person other than husband stick social stigma to the woman.
This is the underline approach that has shaped the ‘sexual morality’ as a high
standard for woman. Therefore, there are two standards of ‘sexual morality’
applicable differently and separately for man and woman in society. Society
always attaches social stigma to woman if she finds involve in sexual offence
and this is probably very strong reason of her exploitation in society,
especially in sexual offences. Therefore, when the penal sanctions has been
drafted with regards to sexual offences in general and ‘adultery’ in particular,
woman in general and wife in particular were accorded protection by law as
they were treated as victim as sexual relationship offend her body and
reputation adversely and legal punishment will add injustice to the insult
already inflicted upon her. In general, the woman has to face social stigma,
and her image tainted upon any sexual offences proved against her. Thus,
even if it would have been discovered that she was partner in pre-marital
relationship or extra-marital relationship she used to face social humiliation
and embarrassment. The legal immunity, to some extent, would at least save
her from further embarrassment. Therefore, the provision which in its effect
permits only the husband of the adulteress to prosecute the adulterer but does
not permit the wife of the adulterer to do so. 46
43 As given u/s 497 of the IPC, 1860
44 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [paras 4]
45 At least at the time when the section was drafted this was true as due to non accessibility medical facilities,
non-availability of contraseptive pills, the sexual intercourse would leads to pregnancy in woman, and
even it is difficult to hide, treat or terminate the pregnancy
46 See, for detail discussion, V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835]
(M. P. Thakkar and Murari Mohan Dutt JJ Divn Bench) [paras 2 pg. 923]. The case also expose other
dimensions of S. 497 and its constitutional validity.
Adultery – A conceptual & Legal analysis
24
In the light of above context, be it realized that S. 497, Penal Code, is so
designed that a husband cannot prosecute the wife for defiling the sanctity of
the matrimonial tie by committing adultery. Thus the law permits neither the
husband of the offending wife to prosecute his wife nor does the law permit
the wife to prosecute the offending husband for being disloyal to her. Thus
both the husband and the wife are disabled from striking each other with the
weapon of criminal law. 47
The offence of adultery as defined in S. 497, is considered by the
legislature as an offence against the sanctity of the matrimonial home, an act
which is committed by a man, as it generally is. Therefore, those men who
defile that sanctity are brought within the net of the law. 48
The object of the law is to inflict punishment on those who interferes
with the sacred relation of marriage, and the legislature as well considers it to
be an offence one who interferes in the sacred matrimonial home.49
a. ‘Adultery’ – Marriage is pre-requisite condition
It is also to be noted down that the adultery is an offence related to
marriage. The heading of the chapter comprises five sections from 494 to 498
of Indian Penal Code describes ‘offences related to marriage’. Therefore for
leveling the offence of ‘adultery’, the legal marriage between the parties is
essential requirement and it must be proved before hand. In other words, the
offence of adultery can only happens during the continuation of valid
marriage.
This is because the offence of ‘adultery’ has necessary linkage with the
marriage. As the very heading of Chapter XX of the Indian Penal Code, 1860
which comprises Ss. 494-498 headed as "Of Offences relating to Marriage" the
marriage become factum vallate for constituting this offence. The matter came
before the court in number of complaints such as Chandra Bahadur Subba vs
State And Anr,50 Empress v. Pitambur Singh,51 and in Kanwal Ram v. The
47 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [paras 3 pg. 923].
48 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 [paras 3 pg. 924].
49 Re Rathna Padayachi, AIR 1917 Mad 220; V. Revathi v Union of India, AIR 1988 SC 835; See also,
Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System 190
(2003) (“Criminal Justice” hereinafter), online at
http://www.mumbaipolice.org/%5Carchives_report%5Cmalimath%20committee%20report.pdf (visited
May, 28, 2010)].
50 1978 CriLJ 942
51 (1879) ILR 5 Cal 566)
Adultery – A conceptual & Legal analysis
25
Himachal Pradesh Administration52 the court has made this very clear that
marriage is the sine quo non of the offences relating to marriage. In Chandra
Bahadur Subba vs State And Anr,53 court resorting the earlier judgment in
Empress v. Pitambur Singh54 observed,
“Both the Sections 497 and 498 form part of Chapter XX of
the Indian Penal Code, which is headed as "Of Offences relating to
Marriage" and the question of marriage, its facturn and legality,
are of utmost importance in all cases under these Sections. The law
on the point appears to be well-settled for about last hundred
years since the decision of the Full Bench of the Calcutta High
Court in Empress v. Pitambur Singh decided in ((1879) ILR 5 Cal
566) where Garth, C. J., delivering the judgment of the Full Bench,
observed that "the marriage of the woman is essential element of
the crime charged as the fact of illicit intercourse and the
provisions of the Evidence Act (Section 50) seem to point out very
plainly that where the marriage is an ingredient in the offence, as
in bigamy, adultery and the enticing of married women, the fact of
the marriage must be strictly proved in the regular way." The
observations in this case apply equally to a case of adultery Under
Section 497, Indian Penal Code, as well as to enticing of married
woman Under Section 498, both of which require the same strict
proof of marriage.55
Thus, the existence of valid marriage must be proved strictly in case of
offences related to marriage including S. 497 of the Indian Penal Code.
Further It has been held by the Allahabad High Court in the Division Bench
decision in Queen Empress v. Dal Singh56 that Courts trying such cases
should require some better evidence of the marriage than the mere statements
of the complainant and the woman. This view has again been reiterated by
the Allahabad High Court in Buddhu v. Emperor.57 The marriage must be
52 AIR 1966 SC 614
53 1978 CriLJ 942
54 (1879) ILR 5 Cal 566)
55 Chandra Bahadur Subba vs State And Anr, 1978 CriLJ 942 [para 3]
56 ((1898) ILR 20 All 166)
57 AIR 1920 All 175 (1) : 21 Cri LJ 368
Adultery – A conceptual & Legal analysis
26
proved strictly and no inference shall be drawn even by the silence of
accuse.58
Court in Chandra Bahadur Subba vs State And Anr,59 clearly
mentioned by reference the earlier jusgements that any admission may only
prove the factum of marriage but, as we have already pointed out, in a case
like this, it must be proved that the marriage between the parties not only did
take place in accordance with the requirement of custom or law applicable to
the parties but also could take place under the law, and reference in this
connection may be made to the Division Bench judgment of the Calcutta High
Court in Akshoy Kumar Maiti v. Emperor.60 Thus the valid marriage only
provide the locus standi and constitute the ‘adultery’, and not otherwise. This
point can be noted down carefully, because there are hot debate over the ‘live-
in’ relationship. Even the Maharashtra Government had also moved the
proposal, though did not materialized due to pocket veto of Governor and
rejected to give assent by President, that in live in relationship, as the
marriage does not takes place in accordance, no adultery would happens.
Therefore, in the trial of adultery, it must be proved that the marriage
between the complainant and the woman concerned could and did take place
under and in accordance with the law.61
The 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.
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
58 Ganga Patra v. Emperor AIR 1928 Pat 481 : 29 Cri LJ 1045
59 1978 CriLJ 942 [para 11]
60 AIR 1933 Cal 880 : 34 Cri LJ 1092
61 Chandra Bahadur Subba vs State And Anr, 1978 CriLJ 942 [para 12]
Adultery – A conceptual & Legal analysis
27
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.
b. Adultery : Only happens during live marriage
Complainant of an offence of adultery has to provide strict proof of
marriage. Mere fact that parties were living together as husband and wife
and giving birth to their progeny. Merely assertion that parties are living as
husband and wife cannot be the sufficient proof of marriage between parties.
Therefore, if the parties failed to prove the existence of marriage, the basic
ingredients of S. 497 cannot be met out and thus accused entitled to
acquittal.62
Again, the adultery is only happened in case of valid marriage. Thus
there must be wedded marriage relationship, not merely consented, or live-in-
relationship does exist.
c. Acultery – the validity of Marriage must be proved
It is essential in the proceeding of offence of adultery that the validity of
marriage must be proved and onus of proving such marriage lies on the
compliant. The court in Brij Lal Bishnoi v. State has reiterated that in case of S.
497 of the Indian Penal Code, the marriage must be strictly proved in order to
punish the accuse under this section. Court observed,
The case relates to a matrimonial offence. In a prosecution
under S. 497 of the Penal Code the question of marriage must be
proved strictly. In such a case admission by an accused in his
statement under S. 313 of the Code of Criminal Procedure that
woman was the legally wedded wife of the complainant will not
be of any avail to the prosecution if it otherwise fails to prove
marriage between the complainant and the woman whose body
stands violated.63
62 See, Brij Lal Bishnoi v. State 1996 Cri. L. J. 4286 [Jaspal Singh, J. (Single Bench)] [paras 15,17]
63 Brij Lal Bishnoi v. State 1996 Cri. L. J. 4286 [Jaspal Singh, J. (Single Bench)] [para 17 pp. 4288-89]
Adultery – A conceptual & Legal analysis
28
d. Consent – necessary ingredient to constitute an offence of
‘adultery’
Wife as a consenting party and husband as a non-consenting party is
also one of the important ingredient to constitute ‘Adultery’. Thus, for offence
of adultery to be met out, it is essential to prove that wife is an consenting and
willing partner in the sexual intercourse and such sexual intercourse happen
without the consent or connivance of the husband. It shall be taken into
account that consent of wife in cases of sexual intercourse is crucial because
the consented sex on the part of wife make the accuse ‘adulterous’, and
unconsented sex with the wife of another made the accuse ‘rapist’.64 Thus the
consent of the women is very crucial from the point of view of the gravity of
an offence. While adultery is less serious offence and only initiated on the
complaint by husband having less prescribed punishment, the rape is serious
offence against the state, non-bailable, cognizable having greater prescribed
punishment. Thus, both these offences not only differ in their degree but both
are remedied at two different forums and required two different procedures.
The court while dealing with the case of ‘consent’ in the offence of
adultery has observed that the consent must be proved and not to be pleaded.
The question for consideration is whether for offence u/S. 497, IPC, the
consent or connivance should be anterior to the commission of the crime nor
posterior to the commission of the crime. A criminal liability cannot accrue ex
post facto.65 If the accused is raising the plea of consent in his defence, he
must prove that such consent was anterior to the offence and not post facto
approval. Ingredients of offence of adultery have to be proved and not
pleaded as complaint cannot be treated as plaint. The consent or connivance
is to be proved and is not to be pleaded as complaint is not to be treated as a
plaint.66
Thus the yet another plea that can be raised, and the requirement that
needed to be proved in the offence of adultery is the absence of consent or
64 In Rajesh Kumar Singh, v. Smt. Rekha Singh and ors., AIR 2005 ALL 16, the husband had filed a case u/s
497 of IPC for divorce on the ground of sexual intercourse of wife with other. However, during trial it had
been revealed that she was not the consenting party to it. The Allahabad High Court made this clear that
Rape is not a ground for divorce. Thus, if the wife is not a consenting party in sexual relation, no case u/s
497 of IPC stand.
65 Bharatlal v. Top Singh 1995 CRI. L. J. 3545 M. P. High Court [D. P. S. Chauhan J. (Single Bench)] [Para
11 Pg. 3546]
66 Bharatlal v. Top Singh 1995 CRI. L. J. 3545 M. P. High Court [D. P. S. Chauhan J. (Single Bench)] [Para
12 Pg. 3546]
Adultery – A conceptual & Legal analysis
29
connivance of the husband with whose wife; the adultery has been taken
place. In fact, this is the major ingredient. The wording of the S. 497 suggest
that adultery only takes place if the sexual intercourse has been taken place
without the consent or connivance of the husband. Thus, if the plea has been
raised, and successfully proved, about the presence of consent or connivance
on the part of the husband, the offence of adultery cannot be proved.
This is the cardinal principal of criminal law that ingredient of the
offence must be strictly proved. So in the case of S. 497 of the Indian Penal
Code. Madras High Court in C.S. Subramaniam v. Unknown67 refereed to the
observations of Edge C. J. and Aikman J. of the Allahabad High Court in --
'Brij Basi v. Queen-Empress', 19 All 74. That was a case where the accused
person was found guilty by the lower Courts of an offence under Section 451,
I. P. C. for having committed house trespass with intent to commit an offence,
the prospective offence being adultery. During the course of the discussion
the learned Judges observe as follows :
"It is the first principle of criminal law that where a statute
creates a criminal offence the ingredients of that criminal offence
must be strictly proved, and that where the doing of an act
without consent or without authority is made a criminal offence,
and the statute does not expressly put upon the accused the proof
of such consent or authority, it is a necessary part of the case for
the prosecution to negative by evidence such consent or authority.
In this case, if Brij Easi had actually been caught in the act of sexual
intercourse with the wife of Ramgopal, assuming that he knew to
be Ramgopal's wife, the offence of criminal adultery would not
have been made out without proof that such sexual intercourse
was without the consent and without the connivance of
Ramgopal."
Thus, the consent or connivance shall be proved beyond the reasonable
doubt in the case of adultery, and if there are any doubt, the benefit shall be
tilted in favour of accuse. Again, the consent or connivance need not be
construed by expressed way, but even the indirect evidence are sufficient to
suggest the intention and convey whether person agree with the act of the
adultery or not.
67 AIR 1953 Mad 422, (1953) IMLJ 236 [para 5]
Adultery – A conceptual & Legal analysis
30
Clarifying further the ambit of ‘connivance’ the court in C.S.
Subramaniam v. Unknown68 resorted to few foreign judgements and
commented,
What "connivance" means when the husband having been
fully apprised of what was going on, viz., that his wife was
committing adultery with other persons, took no active steps to
prevent it, and therefore acquiesced in it, it should be presumed
that there has been connivance on the part of the husband.69
While shifting the burden of proof in the case of adultery on the
complainant and prosecution, the court further stresses in this case,
Section 497, I. P. C. requires that the complainant should
prove that the accused had sexual intercourse with the
complainant's wife without the complainant's consent or
connivance. That means the burden is cast upon the prosecution to
prove that the sexual intercourse had been without the consent or
connivance of the complainant himself. My learned brother has
rightly held that this onus which is cast upon the complainant has
not been discharged by the complainant. All that has been proved
by the complainant in the case is that the accused must have had
or actually had sexual intercourse with the wife of the
complainant. This cannot be full compliance with the requirements
of the section. On the other hand, it was incumbent upon the
complainant to prove that the said sexual intercourse which the
accused had with the wife of the complainant was without his
consent or connivance.70
Thus, if the conduct of the complainant suggests that he fails to take
proper steps to prevent the adultery, this defeat his plea of saying the absence
of consent or connivance on his part. In spite of this knowledge if the
complainant had failed to take steps to prevent sexual intercourse between
the accused and his wife, such conduct on the part of the complainant would
give rise, it is claimed, to the presumption that he had connived at the
68 AIR 1953 Mad 422, (1953) IMLJ 236 [para 5]
69 The court referred the English Matrimonial Causes Act and refered the famous judgement -- 'Lloyd v. Lloyd
& Leggari', (1938) 2 All E. R. 480. Langton J. had delivered the judgement and clarify what is meant by
‘connivance’ in the offence of adultery. The learned Judge also discussed the earlier cases on the point
such as -- 'Rogers v. Rogers', (1830) 3 Hag Eec. 57: 27 Digest. 327
70 C.S. Subramaniam v. Unknown AIR 1953 Mad 422, (1953) IMLJ 236 [para 5]
Adultery – A conceptual & Legal analysis
31
accused having sexual intercourse with his wife, though, in my opinion, such
presumption does not seem to be necessary at all in a criminal case where the
onus is laid on the complainant to prove the ingredients of the offence against
the accused. it is essential that the complainant should show against the
particular person who is made the accused that his sexual intercourse with
the complainant's wife was without the complainant's consent or connivance,
notwithstanding the fact that the complainant might or might not have
consented or connived at the sexual intercourse which other persons might
have had with the complainant's wife earlier or later than the complaint. In
order to make the accused liable to punishment, the complainant must show
that that particular accused had sexual intercourse with his wife without his
consent or connivance.71
Yet another question related to the ‘consent’ or ‘connivance’ u/s 497 is
whether such consent or connivance can be possible to be given post-facto?
The court had considered this question for consideration is whether for
offence Under Section 497, IPC, the consent or connivance should be anterior
to the commission of the crime or posterior to the commission of the crime in
Bharatlal v. Top Singh72 and expressed that a criminal liability cannot accrue
ex post facto. It again retreated that the plea of ‘consent’ or ‘connivance’ shall
be proved by accuse, and shall not be pleaded as complaint is not to be
treated as a plaint.73
The court in Smt. Naraini vs Pyare Mohan74 made it clear that the
question of ‘consent’ or ‘connivance’ must be proved by evidence. The point
which is sought to be argued is a mixed question of fact and law and in
absence of clear evidence it would not be just and proper to uphold such a
plea.
e. Adultery – Sexual Intercourse as essential ingredient
Sexual intercourse is also one of the ingredients to constitute the
‘adultery’ u/s 497. S. 497 of the Indian Penal Code, 1860 categorically employ
the word ‘sexual intercourse’. Though S. 497 does not defined word ‘sexual
intercourse’, it has been defined u/s 375 of the Indian Penal Code, 1860.
Sexual intercourse as defined u/s 375 necessary involve the carnal sex
71 C.S. Subramaniam v. Unknown AIR 1953 Mad 422, (1953) IMLJ 236 [para 5]
72 1995 CriLJ 3545 [para 11]
73 The court, however, expressly denied to interfere with the judgment of lower court on other ground.
74 AIR 1972 Raj 25 [para21
Adultery – A conceptual & Legal analysis
32
between two opposite gender and penetration is important ingredient.
Therefore, in order to prove the charges u/s 497, the sexual intercourse shall
be proved. The court in Sureshchandra Vadilal Shah vs Shantilal Shankarlal
And Anr75 set aside the judgement of lower court on the ground that merely
an opportunity of sexual intercourse, or probability, chances or any attempt is
not sufficient. Court observed,
The term "offence" has also been defined in Section 4(1)(c) as
meaning any act or omission made punishable by any law for the
time being in force. We have to give effect to the use of those terms
need in Section 199, and on the basis of their definitions given
under the Code, it must be said that the complaint must disclose
allegations showing that the person sought to be charged with
adultery, has committed an act of sexual intercourse with the
complainant's wife, without his consent or connivance as required
under Section 497 of the Indian Penal Code, and further, that those
allegations constituting that offence are made with a view to take
action against him under the Code.76
Court further clarify that if the accuse has taken the wife of another
person it will amount to ‘entice away’ and fall u/s 498, but for S. 497
necessary ingredient is actual sexual intercourse. Thus court commented, -
Turning now to the complaint, we find no allegation
whatever to show that the accused had committed sexual
intercourse with his wife as required under Section 497 of the
Indian Penal Code. The allegations in the complaint relate to the
accused having come in close contact with his wife at Palanpur
and then his having enticed her away, and left Palanpur for the
purpose of having sexual intercourse with his wife. These
allegations would no doubt be enough for an offence under
Section 498 of the Indian Penal Code, but certainly they will not go
to suggest, much less show, that the accused was sought to be
prosecuted for his having committed adultery with his wife so as
to be punishable under Section 497 of the Indian Penal Code.77
75 1968 CriLJ 117, (1967) GLR 290
76 1968 CriLJ 117, (1967) GLR 290
77 1968 CriLJ 117, (1967) GLR 290 [para 6]
Adultery – A conceptual & Legal analysis
33
This again differentiate S. 497 from S. 498 of Indian Penal Code. Thus,
the actual proof of ‘sexual intercourse’ is essential of S. 497, while it is not so
with S. 498. However, it is not necessary to establish the factum of adultery by
direct evidence of some one having actually seen the lovers in the act of incest
through key-holes or by taking photographs of the adulterous intercourse. It
is enough to prove the same by oral, documentary or circumstantial evidence
from which the Court can draw an inference beyond reasonable doubt that
the respondent and the co-respondent had adulterous relationship with each
other.78 Adultery, however, though not leads to any physical torture and
does not amount to physical cruelty, it may amount to, amounts to mental
and moral cruelty.79
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, 1860. Sexual intercourse
with a prostitute, unmarried woman or a widow would not fall within the
ambit of this section.
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 husband’s consent is immaterial. However, if the woman is
78 Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff, AIR 1963 Bom 98. Also relied in Avinash Prasad
Srivastiva, v. Smt. Chandra Mohini and another, AIR 1964 ALLAHABAD 486 (Vol. 51, C. 161) [Para 6]
79 Avinash Prasad Srivastiva, v. Smt. Chandra Mohini and another, AIR 1964 ALLAHABAD 486 (Vol. 51, C.
161) [Para 9]
Adultery – A conceptual & Legal analysis
34
below 16 years of age, her consent to such sexual intercourse may also be
immaterial and would constitute rape.
The word ‘sexual intercourse’ needs further analysis here. As defined
u/s 375 of the Indian Penal Code, 1860, actual cohabitation is essential. Again
the proviso clause of S. 375 says that actual penetration of male organ is also
needed, otherwise the sexual intercourse cannot be proved. Thus, if this is
the test for ‘sexual intercourse’ and the same test is made applicable to S. 497
of the Indian Penal Code, 1860, then what is less than ‘sexual intercourse’
cannot be helped out to constitute the offence of adultery. Thus, either less
than or different than ‘sexual intercourse’ between the adulterous wife and
adulterous does not constitute the offence under S. 497. Thus, only seducing,
creasing, outraging the modesty without sexual intercourse, sexual
harassment, sadomy, unnatural offence as defined u/s 377 cannot be strictly
treated as ‘sexual intercourse’ as per it defined under the act. It is further
point of argument here that what happens if the adulterous wife only involve
upto the extent of, but less than the actual sexual intercourse’ with
adulterous. There are several incidences that can be quoted where there are
only possibility, opportunities and chances which do not actual leads to
sexual intercourse. Though, the researcher has found only one case in hands
where court has raised this issue.80 In the instance case, the accused only
taken the wife of complainant with the motive to commit the sexual
intercourse, but it was not happen. The allegation of the husband only
proved the possibilities and opportunity, but court rejected the plea.
Further, presuming that the adulterous wife and adulterous involve in
unnatural offences as defined u/s 377, which does not any way means sexual
intercourse, then whether such act comes u/s 497? Because ingredient of S.
377 and S. 497 are altogether different. And if, the recent judgement of Delhi
High Court in Naz Foundation has been taken as reference which
decriminalized the unnatural offences between two consenting adult,
whether such unnatural offence between adulterous wife and adulterous
would amount to an ‘adultery’? Further, whether if the adulterous fails to met
out the sexual intercourse, such unsuccessful attempt amount to outraging
the modesty of wife and may be prosecuted u/s 354 of the Indian Penal
Code? What happens if the woman in live-in relationship has sexual
80 Sureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr 1968 CriLJ 117, (1967) GLR 290
Adultery – A conceptual & Legal analysis
35
intercourse? Again, if the woman has artificial insemination or use artificial
reproductive technology [ART] without the consent of husband, there would
not be an adultery as actually the sexual intercourse had not taken place. If
the woman had pre-marital affair and had proved sexual intercourse, the
adultery does not happen. It is also does not amount to be an adultery if
married woman offer her womb as ‘surrogate mother’ without the consent of
her husband. In all these cases, one or the other ingredient of adultery does
not met out. It is debatable, and there is not yet any case in hand, that
whether husband can file a suit if in ‘paternity test’ it revealed that his alleged
child has been born by someone outsider.81 The provision of adultery is also
not applicable to prostitution or immoral trafficking of the women as mostly
it involve unmarried woman.
It can be said that, and close scrutiny of author to such questions leads
to dilemma and in absence of clarity of provisions and lack of specific court
judgement different to answer with brevity. But so far the logical analysis of
these questions are concern, it may be said that as the ‘sexual intercourse’ is
an important ingredient, in all the above raised problems, the ‘adultery’
cannot be happens in above cases.
f. Adultery – Procedural formalities
As stated, the ‘adultery’ in judicial proceeding only active by the
complaint by the husband.82 In that would come S. 199 of Criminal
procedure Code, 1973 which provides as under:
No Court shall take cognizance of an offence under Section
497 or Section 498 of the Indian Penal Code, except upon a
complaint made by the husband of the woman; or. in his absence
made with the leave of the Court by some person who had care of
such woman on his behalf at the time when such offence was
committed.
81 However, in Smt. Kamti Devi and another, v. Poshi Ram, AIR 2001 SC 2226[2001 AIR SCW 2100], the
apex court has refused to admit the DNA test even through it is accurate against the conclusive proof u/s
112 of the Evidence Act, 1972 and declared that during the subsistence of valid marriage, the legitimacy of
the child shall not be questioned. Though court added that it is due to policy matter, and in favour of right
of the child whose legitimacy shall not be bastardized only at the fault of his parent. Hence, even the
accurate and scientific ‘paternity test’ on the basis of DNA does not help out the husband in case of proving
offence u/s 497 of the IPC. The apex court in Goutam Kundu v. State of W.B. AIR 1993 SC 2295 [Paras
22 & 26] developed the grouds for permitting the paternity test, and declared that it 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.
82 S. 497 IPC is non-cognizable compoundable and bailable.
Adultery – A conceptual & Legal analysis
36
It follows therefrom that the Magistrate can take cognizance of an
offence of adultery under Section 497, of the Indian Penal Code provided
there is a complaint made by the husband of the woman concerned.
In order to appreciate what is meant by the term "complaint" used in
Section 199 of the Criminal Procedure Code, it can be turned to Section 4
(1)(h) of the Criminal Procedure Code, 1973 which defines the term
"complaint" as meaning the allegations made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but it does
not include the report of a police officer. The term "offence" has also been
defined in Section 4(1)(c) as meaning any act or omission made punishable by
any law for the time being in force. It has to give effect to the use of those
terms need in Section 199, and on the basis of their definitions given under
the Code, it must be said that the complaint must disclose allegations
showing that the person sought to be charged with adultery, has committed
an act of sexual intercourse with the complainant's wife, without his consent
or connivance as required under Section 497 of the Indian Penal Code, and
further, that those allegations constituting that offence are made with a view
to take action against him under the Code. Those allegations may be oral or in
writing before the Magistrate. It is only then that the Magistrate becomes
entitled to take cognizance of an offence under Section 497 of the Indian Penal
Code. The words "cognizance of an offence" in Section 199 if read along with
Clause (a) of Section 190(1) of the Criminal Procedure Code and then again
having regard to the definition of the term "offence" in Section 4(1)(c) there is
no doubt whatever that the complaint must set out facts which constitute an
act on the part of the accused and that act must be one made punishable by
law for the time being in force viz. under Section 497 of the Penal Code as in
the present case.83
All that S. 199 of Criminal Procedure Code, 1973 requires is a complaint
from the husband of the woman in respect of whom the offence of adultery is
said to have been committed and if such a complaint is made to the
Magistrate and also when it refers to the provision of law viz., under Section
497 of the Penal Code under which the accused is sought to be prosecuted, it
should be taken as enough compliance of a complaint made by the husband
83 Court has also discussed at length this procedure in Sureshchandra Vadilal Shah vs Shantilal Shankarlal And
Anr 1968 CriLJ 117, (1967) GLR 290 [Para 4]
Adultery – A conceptual & Legal analysis
37
in respect of that offence and even if any such omission in setting out certain
facts in that respect has been made, it would amount to nothing more than an
irregularity in the complaint curable under Section 537(a) of the Criminal P.C.
provided that there is no prejudice caused to the accused. Now it is well
settled, in view of Section 199 of the Criminal P.C. that a complaint in respect
of an offence of adultery alleged to have been committed by the accused must
be made by the husband or any person in his absence having to take care the
women, that woman with whom he is said to have committed adultery, and
absence thereof would take away the jurisdiction of the Court of the
Magistrate in proceeding therewith, and in case the accused happens to be
committed to the Court of Session in respect of the offence, one can easily say
that the order of commitment in that respect would be bad in law.
In a case of Emperor v. Isap Mahomed,84 the accused was tried on
charges under Sections 363 (kidnapping from lawful guardian, ship) and 366
(kidnapping a woman) of the Indian Penal Code. At the conclusion of the
evidence the Court added a charge under Section 498 (enticing a married
woman) of the Indian Penal Code, notwithstanding the objection raised by
the counsel of the accused. The accused came to be convicted in respect of all
the charges including the one under Section 498 of the Penal Code. In an
appeal filed by the accused, it was contended that the procedure adopted was
contrary to the provisions of Section 199 and to the spirit of Section 238 of the
Criminal P.C. Apart from the procedure being found not regular, the Division
Bench of the High Court of Bombay held in that casa that the conviction
under Section 498 of the Penal Code was bad in law in absence of any
complaint made by the husband of the woman in respect of whom the offence
was committed. The same view was taken in a case of Emperor v. Imankhan
Rasulkhan.85 In that case, the accused was charged in the first instance with
offences under Section 366 and 379 of the Penal Code. At the beginning of the
inquiry, no charge under Section 498 was formulated against the accused.
When the complainant, who was the husband of the woman concerned, was
examined as a witness there were certain statements made in his deposition
amounting to an offence under Section 498 against the accused. Finally, the
Court considering the evidence acquitted the accused on charges under
Sections 366 and 379, but convicted him of an offence under Section 498 of the
84 (1907) ILR 31 Bom 218
85 (1912) 14 Bom ILR 141
Adultery – A conceptual & Legal analysis
38
Penal Code. In appeal the Division Bench of the High Court of Bombay held
that the Court could not take cognizance of the offence under Section 498, as
there was no complaint by the husband, and the statements in the husband's
deposition as a witness could not be said to be a complaint within the
meaning of Clause (b) of Section 4 of the Criminal P.C. This latter case
disposes of an argument about the deposition of the complainant in this case
for being taken in the nature of an oral complaint contemplated under Section
4(1)(h) of the Criminal P.C. In fact almost all the High Courts have taken the
view that the Court cannot take cognizance of the offence under Section 497
or 498 in absence of a complaint by the husband and further that the
statements in the husband's deposition as a witness could not be taken as a
complaint within the meaning of Section 4(1)(h) of the Criminal P.C. Apart
from the authorities on the point, the definition of the term "complaint"
makes that position absolutely clear when it says that the "complaint" means
allegations made orally or in writing before the Magistrate with a view to his
taking action under this Code against certain person having committed the
offence. In other words, a complaint, either oral or in writing, must precede
the cognizance of the offence being taken by a Magistrate by reason of Section
190(1)(a) of the Criminal Procedure Code which obviously has been subject to
Section 199 of the Criminal Procedure Code. The deposition of the
complainant, therefore, being subsequent to the cognizance of an offence
being taken by the Magistrate cannot serve the purpose of being called a
"complaint" as defined under Section 4(1)(h) of the Criminal Procedure Code.
1.13. ‘Adultery’ – Analysis of an argument of NCW
The National Commission on Women (NCW) in its report has leveled
an argument against the existing provision of S. 497 of the IPC. Expressing its
lament attitude, it expressed that the existing provision in the IPC is based on
the mindset that the wife is a personal possession of the husband, who is the
sole aggrieved person in an incident of adultery. On this line, the
Commission has recommended suitable amendments to Section 198(2) of the
Criminal Procedure Code, which as of now disqualifies the wife of an
unfaithful husband from prosecuting him for his promiscuous behaviour.
Adultery – A conceptual & Legal analysis
39
This argument is however not tenable in the light of the object of S. 497
of IPC and the Apex Court judgement in V. Revathi case.86 The section
attempted to cover family as an institution and punishes infidelity committed
by outsider stranger. It can also be conveniently says that is ample scope for
woman as an individual to punish the man, though a marital relationship
exist between them. Specially, Section 498A also provides scope for wife to
punish any act of husband. It is also argued in the same report of National
Commission of Women that despite the other provisions are available there is
no reason that she should be debarred from initiating prosecution under
Section 198 of Cr.P.C. However this argument is also ridiculous because if the
S. 497 of IPC would have brought on the line of gender neutrality, it would
defeat its both the basic purpose i.e. protecting harmony in marriage
institution and protect woman.87
In another important recommendation, the Commission has said
adultery should be treated as a civil wrong and not a criminal offence. It is of
the view that there may be many instances where the woman wants to save
the marriage and sees the adulterous relationship as an aberration. This
argument is appeared to be sound, mature, strong and imbibe the solution
amicable to modern society. However, analysis of this argument will be dealt
under the separate heading of this paper.
1.14. Why Adultery is still punishable?
The basic question is, ‘why adultery is still punishable’? The arguments
advocated in the present context for the deletion of provision ‘adultery’ as an
offence in general and urging for decriminalization of ‘adultery’ in particular
raise because in present context the sexual relationship is neither a very
sensitive aspect, nor the marriage institution got central attraction for penal
statutes.88 The period when S. 497 of the IPC had been drafted and the
modern era where it is still made applicable demonstrate disparities in its
86 V. Revathi v. Union of India & others 1988 Cri. L. J. 921 SC [AIR 1988 SC 835] (M. P. Thakkar and
Murari Mohan Dutt JJ Divn Bench) [paras 2 pg. 923].
87 Again, S.498 which is immediately next to S. 497 give wider scope for the woman (including wife) to tackle
the husband who is involve in infidelity of marital offences. ‘Cruelty’ also include ‘sexual exploitation’ or
‘sexual neglect’. Beside the same, the new Domestic Violence Act, 2005 give better vitage point to the
woman to settle score against the man, if she so desire. Therefore the NCW’s argument specially in case
of S.497 is weak, without much research, and only on the line of ‘gender cry’.
88 This is evident from the fact that today the ‘live-in’ is too much prominent and hardly attract any social
condemnation. Marriage is become concern only for spouses, extra-marital relationship hardly attract any
social attention except for gossips and Page3 news. The Govt. of Maharashtra had also proposed the bill
to give legal recognition to ‘live-in’ relationship which is very frequent in metros.
Adultery – A conceptual & Legal analysis
40
context and degree of ‘sexual morality’ prevailing in society at two different
intervals. During 19th century, the social and legal context to regulate the
sexual relationship and marriage was strongly influenced by the social values.
The social values were strongly against adulterous behavior. Even the widow
marriage was not allowed. It was the general practice to keep the wife of
poor and subordinate person as a security and surety, and this was the
general mode of exploitation of dominant class. Therefore, in order to protect
the person whose wife has been taken away and forceful sexual relationship
either with the consent or without the consent of the wife had been
established, the husband was in position to take resort to the penal laws.
However, the state of affairs is not the same in the present context as it
was in mid of 19th century when the penal provision for ‘adultery’ had been
drafted in the IPC. At present, the society has become much liberal with
changed social values on sexual relationship. The sexual exploitation of the
poor class has been lessening down.89 One thing shall be taken into
consideration that ‘adultery’ under the Indian legal system committed when
even the wife of the husband has her consent for the adulterous relationship
with the man who is other than her husband. If the wife does not have her
consent for the adulterous relationship, the offence does not met out u/s 497
of the IPC and it would fall under S. 376. Therefore, for an offence of
adultery, consent of the woman is necessary corollary. This again raised
another argument that when the adultery is a consented act between two persons of
opposite sex having living spouse at the time of adulterous act does not it violate
and appeared to be irrational that the offender is always be a male and the
woman, even though she may be an abettor, shall not be prosecuted for the
offence of adultery? These arguments strongly advocate the complete
deletion of provision of ‘adultery’ from the penal statutes, though it may be
retained to have civil remedies.
1.15. Whether S. 497 is still relevant?
The circumstances in which the provision of adultery had been crafted
out in India has been undergone a sea change. Today, neither there is a
traditional custom of keeping one’s wife as a bonded labour prevails at
89 Though there are reported incidences of such exploitations even today, it is hardly difficult to say that how
far the penal statutes will help to rescue them, especially, when there are different laws, models,
government scheme to deal with that. Again, the policy of removing the social evil by penal statures has
already been discarded, especially in the state having colonial ‘police state’ framework in existence which
hardly achieve any effective social goal.
Adultery – A conceptual & Legal analysis
41
present time nor the magnitude of male dominance do exist at present.90
Over the years polygamy has become illegal while monogamy has become
prevalent. The period when the principal penal law of Indian had been
drafted, there were hardly any effective personal codified laws were in
existence. However, as compare to that period today the personal laws are
equal, operative, effective and efficient. This can be evident that the
definition of adultery in matrimonial laws is much wider in scope that the
definition of adultery as a crime. Today, polygamy is appeared to be
exceptional and have greater disadvantages. To practice polygamy or have
extramarital relationships without attracting civil action is almost impossible.
Women have begun to establish their own identity in the society and are no
more treated merely as their husbands’ chattel. Therefore, with growing
awareness of women about their rights, better laws to their rescue, it can be
conveniently being said that there are no reasons to retain adultery as an
offence in the penal code.91 Our personal laws are sufficient to take care of
adultery as a civil wrong.
Apart from the legal analysis, if the law is to be designed on the basis of
social reality, let us have a content analysis of present entertainment media.
TV serials, films, Page3 items of the newspapers, magazines of media and
actual lifestyle of the metros, and every walk of life, there are thousands of
extra-marital affairs are sprinkling. People are not ‘used to’ of it, and mostly
take it as personal affair of individual and hardly considered as an
exaggeration on their value system or threat to the existence of their own
marital life. However, these aspects are out of discussion of this paper, hence
left untouched in this article.
1.16. Conclusion
Thus the forgoing legal analysis of provision related to ‘adultery’ under
penal statures clearly defines the substantive and procedural requirement and
lay down that S. 497 has been drafted differently. It can further be stated that
90 Even though, it may be presumed that these practices are still prevalent in India, it is also doubtful that to
what extent the penal statutes are useful to eradicate or protect the woman from such practices. Thus,
retention of such penal provision to fulfill the objectives of protecting a class of poor women from the
made domination from the practices of bonded labour is not justified in the situation where much
development, progress and different legislations come into play. Social evil in democratic county is
advisable to eradicate by good government policies and effective execution of strategic schemes.
91 Again, the provision of adultery hardly helps to serve the general class as it is only protect the married
woman, only provide immunity to consented wife, and only give remedial measure to aggrieved husband
hardly serve very general purpose of protecting the woman.
Adultery – A conceptual & Legal analysis
42
it leads to several illogical absurdity. The drafter of the provision itself
appeared to be in dilemma and at the present context it appeared to be more
irrelevant. As the time passes, and as the feminist jurisprudence making the
women more empowered, the provision that imbibe the protectionary
prejudice attitude towards this class loosing its relevance. Therefore, in the
modern context such prejudice provisions needed to be brought on the line of
gender neutrality. In the modern era when the society is too liberal with the
sexual offences and gender equality is order of the day, the provision of
adultery has opened for debate. It fails to answer several questions and leads
to serve hardly any proper purpose. Thought, too some extent, the gender
neutral version of the provision of adultery as recommended by Mallimath
Committee and Law Commission would be appeared to be more logical,
incidental, relevant and able to serve better purpose, but looking to the
various context, social reality, it may be said that its complete deletion from
the penal statutes serve better purpose. In the modern society, penal statutes
must be kept beyond the reach of that civil matter, specially family matter,
where such provision are misused, misunderstood and hardly effective.
Thus it can be concluded that provision on ‘adultery’ under the
different legislative packages has ideology to promote marital harmony,
strengthen marriage institution, provide opportunity to husband to punish
outsider, provide a chance to both spouse to forgive and forget, and in turn,
also form one of the basis for dissolution of marriage under personal laws.
Therefore, the legislative package in present form also protects the women
considering her victim in the male dominated society.
In the light of above conclusions, this article has achieved the analysis
of the concept of ‘adultery’ and its various facets, historical, philosophical,
jurisprudential, the causative rational that why the adultery as a legally
prohibited act, development and nature of act of adultery, the rational for
making it prohibited by the society at given moment of time with penal
modality of the legislative package on adultery. At the same time it has been
understood that ‘adultery’ either as legally prohibited or permissible act is
deeply influenced by the value system especially the value determining
‘sexual morality’ in society. As the ‘morality’ as such is a relative
phenomenon, it changes according to time, place and society. It has been
evidently proved that the attitude of the society towards the adultery as an act
has become liberal as compare to traditional age-old society. Today, ‘live-in’
Adultery – A conceptual & Legal analysis
43
has not been taken as’ shock or surprise’ and government is also in mood it
legally recognized it. Therefore, there is also need to have a second look to
the provisions relating to ‘adultery’ in India, and better way to decriminalize
it and make it only as a civil wrong. No doubt that court has used such
discretions many a time to put marital interest over the individual interest.
However, it is the legislature who should frame the clear policy and
provisions. It is their exclusive domain, which shall not proper to be
substituted by judicial law making.
