Adultery shows a conflict between social pressure and individual struggle for happiness. People who practice adultery often face criticism and negative attitude from the society. According to Indian law, adultery is an offence under Section 497 IPC and offence of Adultery is only direct to man who violate the sanctity of marriage. So, it is a gender-based discrimination of law.
WHAT IS ADULTERY REALLY?
Marriage and Family are often regard as the foundation of the society. Adultery has been therefore in existence since there been marriage. Adultery is define under Section 497 of the Indian penal Code as “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 consent or connivance of that man, such sexual intercourse not amounting to rape, is guilty of the offence of adultery”.
Supreme court striking down the provision of adultery as an unconstitutional on the basis that this provision was violates the provision of the article 14,15,21 of constitution which mainly talks about the Equality, Discrimination and Right to Life respectively. Some legal jurisdiction has defined it as a crime against marriage. Although it seems that the definition of adultery seems to vary in every legal system, but the common point is Sexual relations outside of marriage.
Adultery as ground for divorce under Hindu law:
As per Hindu Marriage Act 1955, a man or a woman who has voluntary sexual intercourse outside their marriage seems to have committed Adultery. It is a valid ground for judicial separation and divorce under this Act. Under section 10 of the Act, a judicial separation is entitled to either party.
Any husband may file a petition to the District Court or the High Court praying that his marriage has been dissolved on the grounds of adultery practised by his wife and vice versa can be done by the wife.
Contents of petition- Every such petition should contain all the necessary facts of the case and the reason behind the dissolution of such marriage.
Adultery can be proved under the following grounds:
- Circumstantial evidence
- Evidence of birth of child
- Contracting venereal diseases
- Admission or decrees of parties that should be corroborated
Besides the above grounds there are few exceptions in the cases where the solution of such disputes can give easily, such as:
- The Adultery when proved with the person involved
- Adultery by husband just after marriage
- Adultery by women getting pregnant
- Aggravated adultery by desertion or cruelty on the wife
- Intercourse with wife’s sister or maid.
Case Law: Section 13 of HMA,1955
1.Sunil Eknath Trambake V Leelawati Sunil Trambake on 1 December,2005
Facts: The petitioner and respondent of this case are husband and wife who got married on 1986. They were bless with baby girl but soon later they start to have differences and the husband filed for divorce under section 13 of the act. But the wife came up with an issue stating that the husband had extra marital affairs with another woman in 1996 and, they had a child born in 1997.
The petitioner however deny the allegations, so the wife insist on having a DNA test done to confirm a case of adultery.
Issue: Whether the DNA test is a proper method to find out adultery of the husband.
Holding: The council of the petitioner say that an DNA test is not require as it is quite personal and against natural justice. Usually in a case if a difficulty arises for the answer to the question of paternity a DNA is recommended by the courts but here there was no requirement sought. In the present case the wife is not talking about the DNA test for the child to prove adultery by the husband.so therefore she was not entitled for the divorce.
As a result, the court set aside for the DNA test, so the petition of the husband is allow. Trail court was direct to proceed with the hearing and dispose the case as soon as possible.
MUSLIM LAW ON ADULTERY AS A GROUND FOR DIVORCE:
Adultery, according to the Quran, is a very harshly punishable offence and is prescribe to dealt with by way of stoning to death. But most of the constitutions call for humane treatment of its citizens. The husband has every right to divorce his wife if he can prove that his wife had an adulterous relationship. But the wife may only in circumstances of false accusations can either ask her husband to retract the accusations or divorce him under Lian. However, if the husband retracts the claims and apologizes for the same in a prescribed manner, the wife’s claims exists. In the case of Tufail Ahmad v. Jamila Khatun , the Allahabad Court has further explained that only such wives who are not guilty of adultery may use this as a ground for divorce.
Adultery not a crime, Supreme Court strikes down Section 497:
The court declared on 27th September 2018 that section 497 of the Indian Penal Code- the adultery law-was unconstitutional.
Adultery is no longer a crime, the Supreme Court ruled. The judgment by a five-judge Supreme Court bench headed by Chief Justice Dipak Misra has overturned the previous three rulings on the matter. Under Section 497 of the Indian Penal Code (IPC) Adultery, an offence and a convict could be sentence to five-year-jail term. Section defined adultery as a criminal offence if a married man has illicit relations with some other women outside of his matrimonial sacrament.
The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) challenging IPC Section 497. He mentioned that the law was discriminatory.
Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right not available to an aggrieve wife if her husband found in an adulterous relationship. The most commanding argument in the court hearing was that Section 497, governing adultery law, discriminated against men by not making women equally culpable in an adulterous relationship. It was also argue that due to the adultery law women were free to commit this crime more freely than man. Trivia: The Supreme Court bench that dismissed a plea challenging this was head by Justice DY Chandrachud.
It was Justice DY Chandrachud, who saw that. “Women could not treated as commodity by leaving them to the discretion of their husbands. In giving consent in matters of adultery”. The Supreme Court said that Section 497 as anti-women to dismiss the argument that the adultery law discriminated against men.
There is one more topic however which needs our attention which is Legitimacy of the Adulterous Child: A man or a woman who commits adultery shall be punish 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 .
Now in present scenario the Supreme Court striking down the 158-year-old rule of colonial era that wife is no longer a property of husband, so it’s no longer a criminal offence. But there are many questions arises after the striking down the rule of adultery, one of that major question is legitimacy of adulterous child, who is responsible for that child.
Birth during marriage the conclusive proof of legitimacy:
According to this if a child born when his mother and the another man are still married or under 45 days. After dissolution the mother remains unmarried. Then it is prove that the child is legitimate unless its proved. That they had no access to each other during this time period. In India there is a provision of single parent child. In which one of the parties can take a custody of child and take care of it as single parent. There also a term called uterine blooded children. In which a person has a same mother but have different father they both are related to uterine blooded.
The Supreme Court gave a judgement in the case of Gaurav Jain v Union of India  that children are innocent and abandoning of the child by one of the parents, excluding a good foundation of life for them, is a crime against humanity.
There has been a recent development on this topic where its mentioned by the government to SC that
Adultery can’t decriminalize for armed forces:
The Supreme Court on Wednesday admitted a petition filed by the Ministry of Defence. (MoD)seeking to exempt Armed forces personnel from the ambit of a Constitution Bench judgment of 2018 that decriminalised adultery.
One of the chief reasons given by the government for seeking exemption is. Incidentally, that an army personnel will be always worried about his family. Indulging in inappropriate activity as he is most of the time far away from them. And described them as a “Distinct Class”. A three-judge Bench led by justice ROHINTON FALI NARIMAN said that laws related to Adultery. Impose restrictions on the fundamental rights of the armed forced. “De hors 497, the army would equally proceed against a female subject. To that act if she enters into an adulterous relationship” it said.
From the above article I would like to express my views deliberately. That Adultery has shown a significant impact on our society. From decades we have seen in many circumstances and woman have suffered. Due to the society’s lack of acknowledgment of their opinion. But current sophisticate technologies and enhance legal system there is a major change. That have brought woman on an equal platform to relish every opportunity a man does.
Keeping equality before law we need to understand even man must avail. The same benefits in any circumstance so if being a woman are not account guilty why does the man. As with every law implemented comes an after effect that could bring both. Positive as well as negative results so adultery should not be completely decriminalised. As it could result in unnecessary advantage for any individual. As it’s “once is a mistake, twice is a pattern and thrice is a habit”. So if any individual commits adultery twice. Taking it as an advantage should brought into justice through some more revised law and should enact accordingly.
- Indian Cases
- Sunil Eknath Trambake vs Leelavati Sunil Trambake,1st December,2005, Para 6||
- Adultery as a ground of Divorce- A comparison between Hindu and Muslim Law, http://www.legalserviceindia.com/legal/topic-5-family-law.html
- Bheeshm Sharma (Manipal University Jaipur), Article on legal aspects of Adultery(March 24,2020) https://lawbhoomi.com/article-on-legal-aspects-of-adultery/
- Adultery not a crime, Supreme court strikes down section 497, India Today (September 27,2018) indiatoday.in
- Krishnadas Rajagopal,Adultery can’t be decriminalised for armed forces, govt tells SC(January 13,2021) https://www.thehindu.com/news/national/sc-notice-on-centres-plea-seeking-clarification-if-decriminalizing-adultry-will-extend-to-army/article33568070.ece