Thursday 24 January 2013

Adultery


Adultery is an act under which a man and a woman who are not legally married indulge in illicit sexual intercourse. Adultery is a voluntary sexual intercourse between a married person and a partner other than the lawful spouse[1]. The act must be done voluntarily. Adultery has been looked down from ancient times and all religions prohibit it. Adultery is not only a crime under the Indian criminal law but is also a valid ground for divorce under the civil laws.

Adultery under the Indian Penal Code, 1860

Adultery is an offence under the criminal law and is defined and punished under the following sections:

Section-497- Adultery: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Essential ingredients:

(1)    Voluntary sexual intercourse

(2)    With a married woman with the knowledge that she is wife of another man

(3)    Without the consent of the husband

(4)    Such intercourse not amounting to rape

(5)    Woman is not punished, not even as an abettor

In Yusuf Abdul Aziz v State of Bombay[2], the constitutionality of Section 497 was challenged on the ground that it lays down the punishment only for the man and not the adulteress woman and hence violate the provisions of Articles 14, 15 and 21. The Apex Court observed that sex is a valid classification under Article 14 of the Constitution and there can be no discrimination on that ground.

Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

Ingredients:

(1)    Taking or enticing away or concealing or detaining the wife of another man from the (a) man, or (b) any person having care of her on behalf of that man

(2)    Knowledge or reason to believe that she is wife of another man

(3)    Such taking away must be with an intention that she may have illicit intercourse with any person.

Adultery as a ground for divorce under personal laws

Adultery leads to the breakdown of the sanctity of marriage. Not only is it a crime against the society but also a sacrilege of the marital institution. Thus, the commission of the act of adultery by either party to the marriage can be used as a ground for obtaining a decree of divorce or judicial separation under various personal laws as well as the secular law.

Hindu law: section 13(1)(i) of the Hindu Marriage Act, 1955, provides that adultery is a valid ground for divorce. One single act of adultery is enough for divorce or judicial separation. The burden of proof is on the petitioner.

Muslim law: while adultery in itself is not provided as a ground for divorce, under the provisions of the Dissolution of Muslim Marriage Act, 1939, if the husband associates with women of ill repute or leads an infamous life, it would amount to cruelty as defined under Section 2 of the Act and is, therefore, a ground for divorce.

Christian law: the Indian Divorce Act, 1869, provides that:

Section 10: When husband may petition for dissolution.-Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery, or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,

or of adultery coupled with desertion, without reasonable excuse,

for two years or upwards.

Contents of petition.--Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Section 11: Adulterer to be co-respondent.-Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused

from so doing on one of the following grounds, to be allowed by the Court:-

(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;

(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;

(3) that the alleged adulterer is dead.

Special Marriage Act: Section 27 of the Act provides that adultery is a valid ground for divorce. It states that:  Divorce- (1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent-

(a)    has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

Thus, adultery is a valid ground for divorce under the personal laws. If adultery is proved under Section 497 IPC, the same can be used as evidence in the divorce proceedings.



[1] http://www.thefreedictionary.com/adultery
[2] AIR 1954 SC 1618

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