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.
No comments:
Post a Comment