Adultery in India

Only male can do it and female cannot

By
Arnab kumar banerjee
Student
3 yr. LLB. Course
Sarsuna law college
Vidyasagar university
Adultery is an age old offence. It is a criminal offence and is dealt with
Indian penal code (ipc). It is defined in ipc as follows:
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
consent and connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of 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.”
From the above definition the following things will come out:
To be convicted as a guilty of adultery one:
1. Must have a sexual intercourse with another man’s wife.
2. Such intercourse will be without consent of the husband of that
wife.
3. Such intercourse should not be the offence of rape.
4. The wife will not be the abettor (guilty of insisting to commit
offence).
5. The man must know that she is another man’s wife.
The above facts will be proved in order to convict somebody of guilty
of adultery. Among them there is one element that may amount to
injustice in certain cases. The practice of not holding wife guilty of
adultery is a controversial element. Now if facts no. 1, 2, 3 and 5 are
proved against a man then he can’t be held has an adulterer, unless his
intention to commit adultery is proved beyond reasonable doubt. But
the question that who has an intention to commit adultery is answered
 by the question that who ignites the flame? The initiator is the real
guilty because the initiator has the intention to commit adultery.
According to ipc, the intention is an essential element of a crime. If
there is no intention, there is no crime. This is expressed by the maxim
“ actus non facit reum,nisi mens sit rea” i.e. the act by itself does not
constitute guilt unless done with guilty intent. The “mens rea” or gulty
mind is the real guit. So who started seducing a man to commit
adultery is the main question in case of adultery.
Now, by declaring arbitrarily women as not adulterer this law protects
women without any reason. What made the lawmaker think that
women can’t have intention to commit adultery? Women can’t seduce
a man to do this act? This shows the lawmaker’s lack of wisdom and
understanding about the character of women. By protecting women
from the eyes of law without any reason, the law lacks equality of
justice. In this article I am going to show a number of cases where
women have the intention to commit adultery.

The case Golub v. Ganz entered the APPELLATE DIVISION of New York
Supreme Court on October 20, 2005 and decided on that day.in this case
the plaintiff (appalant) was marc ganz(ganz) and the defendant/
respondant was mona golub (golub). Ganz file a divorce suit against
golub. The charge he brought against golub was cruel and inhuman
treatment and ADULTERY. She committed adultery on or about June 30,
2002 and July 1, 2002. Here mona golub was ordered by the court to pay
child support and she lost the custody of children. You can read the case
detail here .
In another case Sadhu Ram @ Dalip v The State (Govt. of NCT of Delhi)
Crl. Appeal No.836/2010, the appellant sadhu ram was sentenced to 10
year imprisonment and Rs. 10,000 fine for attempt to rape another
woman(prosecutrix) in whose house sadhu was a milk vendor. The
prosecutrix told her parents about the rape and threatening by sadhu
and her parent file that case in session court. session court gives sadhu
sentence of 10 yr. jail with fine. Sadhu appealed to high court where it is
found that in a photograph sadhu stands in an intimate posture with
the prosecutrix. According to sadhu this photo was taken earlier when
both sadhu and the prosecutrix visited KK digital studio for getting
photographed. The prosecutrix didn’t deny the photograph. And the
doctor who examined the prosecutrix, Dr. shruti ranjan didn’t find any
evidence of rape. These two evidences proved beyond reasonable doubt
that rape has not been committed. Then it was implied from the
photograph that the prosecutrix has an extramarital affair with sadhu.
She has committed adultery. You can see the details of the case here .
So, from above cases, we come to know that women can commit
adultery as easily as men. But in Indian law they can’t be held liable.
Why? I can’t find any reason behind this practice. Certainly the adultery
law in india is GENDER-BIASED . we should not forget that justice should
be impartial and law should not violate our constitutional right of
equality. This practice of not holding women liable will certainly benefit
some women who commit adultery and escape justice. These adulterous
women can’t be divorced on the ground of adultery because law did not
recognize them as adulterous. In this way some crime continues without
being ever caught. We must stop this practice and change law in such a
way that both men and women will be held liable for adultery if proved.
In this way, we can correct the gender biasness of this law and make it
impartial and just.

Bibliography;
1] http://www.lawyersclubindia.com/forum/Re-On-being-caught-of-
Extra-Martial-Affair-wife-slapped-RAPE-24031.asp#114048
2] http://www.jdbar.com/Cases/golub-ganz.html
3] IPC