JUSTIFICATIONS OF ADULTERY LAW

*PEARLITA NARAIN

INTRODUCTION

The word "adultery" finds its roots in the Latin word ‘adulterium’ 1.
Adultery is supposed to be a consensual sexual act by a married person along
with another person whose marital status is irrelevant. Almost all religions
prohibit it and treat it as inexcusable. Surprisingly, this is not obvious in the penal
laws of all countries. However, most the legal systems recognise it as grounds for
divorce from the defaulting spouse.2

The aim of this essay is to analyse adultery laws in India in various

perspectives and to explore the various rationale and critiques of existing
adultery law.

Merriam Webster’s Dictionary defines Adultery thus:

“Voluntary sexual intercourse between a man and someone other than

his wife or between a married woman and someone other than her
husband”

In India, Adultery is a crime according to the Indian Penal Code and it

also forms grounds for divorce under various personal laws. Given the uniform

*3rd Year, B.A.LL.B.(Hons.), National Law University, Delhi.

1
‘A Dictionary of Greek and Roman Antiquities’, John Murray, London, 1875, Art. George Long,
p.17, Available at:
<http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Adulterium.html>.,
retrieved on 03 November, 2014
2
‘“Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective’, K.I. Vibhute
(2001) 6 SCC (Jour) 16, Available at: <http://www.ebc-india.com/lawyer/articles/2001v6a3.htm>.,
retrieved on 03 November, 2014

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applicability of criminal law in India, this essay analyses the IPC provision
criminalizing adultery.

Lord Macaulay did not think it was necessary or wise to include

‘adultery’ in this First Draft of the IPC. Evaluating opinions gathered from the
three Presidencies about the viability of the criminalisation of adultery, and he
concluded that there seems to be no advantage that most people expect out of the
criminalization of adultery and that there seems to be a divide of opinion as to
what is a sufficient punishment for engaging in adultery. One strand of opinion
states that this is something that can never be adequately atoned for, while the
other strand justifies a mere monetary penalty on the offending spouse. They felt
that in the given circumstances, it is best to treat adultery as a civil wrong.3
The Law Commission in its Second Report, took a different view,
despite that, it placed heavy reliance on Macaulay’s remarks on the position of
women in this country, they finally concluded:
"While we think that the offence of adultery ought not to be omitted from
the Code, we would limit its cognizance to adultery committed with a
married woman, and considering that there is much weight in the last
remark in Note 'Q', regarding the condition of the women in this country,
in deference to it, we would render the male offender alone liable to
punishment."4

The Indian Penal Code5 provides thus:

“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

3
‘Macaulay's Draft Penal Code (1837)’, Notes, Note Q, pp. 90-93, cited from, Law Commission of
India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13.
4
Forty- second Report on the Draft Indian Penal Code (1847), pp. 134-35.
5
Section 497, IPC.

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