RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PATIALA, PUNJAB

FAMILY LAW PROJECT

3rd SEMESTER

ADULTERY AS A MATRIMONIAL OFFENCE

AND AS A CRIMINAL OFFENCE- A STUDY

SUPERVISOR: SUBMITTED BY:

DR. KAMALJIT KAUR NAME: AMOGH GUPTA

(ASSOCIATE PROFESSOR OF LAW) ROLL NO.: 20129

GROUP NUMBER: 18
 ACKNOWLEDGEMENT
I would like to express my sincere gratitude towards Dr Kamaljit Kaur as well as our Project
Coordinators, who gave me the golden opportunity to do this educative project which also helped
me in doing a lot of research and thus I came to know about various new things involved in the
process. I am really thankful to them. Secondly, I would also like to thank my parents, friends,
and group members, who helped me a lot in finalizing this project within the limited time frame.

I would also like to thank the library authorities for providing me access to such wonderful study
material which helped me a lot in going about the given topic. I would like to thank all the
sources of my research. I would also like to mention the contribution of my seniors who guided
me through with the project.

In the end, I would like to thank the authorities for providing me with such an opportunity to
hone my analytical skills and widen my knowledge about the particular discipline.
 TABLE OF CONTENT

 ABSTRACT…………………………………………………………..……4

 INTRODUCTION…………………………………………………………5

 ADULTERY: A GROUND FOR DIVORCE IN INDIA………………..6

o HINDU LAW

o MUSLIM LAW

o SPECIAL MARRIAGE ACT

 ADULTERY AS A CRIMINAL OFFENCE…………………………….9

 CONCLUSION…………………………………………………………...12

 BIBLIOGRAPHY………………………………………………………...13
ABSTRACT
Adultery, a long-standing social grievance, is most likely one of the few issues that are
frequently discussed in relation to controversies that arise as a result of rapid changes in people's
mentalities, particularly in the Indian context, where conservative perspectives are no longer
regarded as valuable as they were previously. As some speculate, free love or "violation of
wedding bed" is an assault on a husband's right over his adult female, which may represent a
similar reason behind the good battle of the "Ramayana" that began after Ravana abducted Sita
and Sita had to journey for 'Agnipariksha' to establish her chastity.

Adultery demonstrates a tension between social pressure and personal happiness. Adulterers
have always had to contend with society's disapproval of them. Adultery is punishable in India
under Section 497 of the Indian Penal Code. When the outsider is a man, the charge of adultery
is directed only at the 'outsider' who breached the sanctity of the marriage home, according to
Indian penal law. As a result, it amounts to legal discrimination based on gender. The
continuation of this statute today, in our opinion, necessitates major revisions and amendments.

However, when we look at today's culture, we notice an absolute change that either has a return
or is merely waiting to affect the ethical standards of future generations. To get a sense on the
topic, a gift study was held at four different institutes, each with a rural and concrete setting.
Wherever we find clear concepts, rational thoughts, deserving comments, and compelling wishes
towards the modification of gift law and social regulation, we find attention-getting
consequences. Despite the fact that the study is only the tip of the iceberg, it clearly demonstrates
the need for a rethinking of free love and its societal supervision.
INTRODUCTION
Marriage and family are frequently viewed as the foundations of society. For as long as there has
been marriage, adultery has been a part of the human experience. It naturally creates a conflict
between the persons involved, involving sexual cravings and a sense of loyalty; it brings deep
emotions to the foreground, with implications for everyone involved.

"Voluntary sexual intercourse between a married individual and someone other than the lawful
spouse" is defined as adultery. The term comes from the Latin word ad-ulterare,  (a combination
of ad, "at", and ulter, "above", "beyond", "opposite", meaning "on the other side of the bond of
marriage"). Adultery is defined as sexual activity between a married man or woman and
someone who is not their wife or spouse. An adulterer is a married man who has sex with a
woman who is not his wife or with another man's wife, whereas an adulteress is a woman who
has sex with another man's wife.

Adulterers have always been subjected to society's disapproval, which varies greatly based on
local culture, religion, and morals. Adultery has always been harshly criticised and punished,
usually exclusively as a breach of the husband's rights. Adultery was therefore associated with
theft, especially aggravated theft, among such individuals, because the woman was considered
the property of her husband. In some parts of Africa, the seducer was punished by losing one or
both hands, as though she had committed a robbery on her spouse.

The seducer was not the only one who suffered; the violating wife was also punished severely by
her aggrieved husband. In many cases, she was forced to undergo bodily mutilation in the hopes
of preventing her from ever being a temptation to other men again, in the opinion of the angry
spouse. The wife, on the other hand, had no legal recourse against her unfaithful husband, and
this prejudice is documented in practically every ancient code of law. The laws of Manu in
ancient India are striking in this regard, "though destitute of virtue or seeking pleasure
elsewhere, or devoid of good qualities, yet a husband must be constantly worshipped
as a god by a faithful wife"1

1
Kipnis, Laura. “Adultery.” Critical Inquiry 24, no. 2 (1998): 289–327. http://www.jstor.org/stable/1344170.
ADULTERY: A GROUND FOR DIVORCE IN INDIA

HINDU LAWS ON ADULTERY

Adultery is a basis for divorce in India, as specified by Section 13(1) of the Hindu Marriage Act,
1955. Adultery, according to it, is the act of voluntarily engaging in sexual intercourse with
someone who is not the respondent's spouse outside of marriage. As a result, the petitioner must
demonstrate that he or she is married to the respondent and that the respondent engaged in
consenting sexual intercourse with another person.

Any spouse who files a divorce petition must substantiate their claims with evidence. With the
passage of time and key cases, Indian courts have highlighted the need to establish adultery
beyond a reasonable doubt. However, over time, the Honorable Supreme Court has appeared to
differ in such matters, arguing that proving beyond a reasonable doubt is only required in
criminal proceedings, not civil cases.

Hindu Marriage Act, 1955, because they are stated under Provision 13(1) of the legislation, the
parties can submit a decree for judicial separation or divorce, according to the section. It is,
however, independent of whether the adultery marriage is solemnized before or after the
beginning of the adultery marriage.

According to the husband, his wife used to visit the co-respondent and was found in a
compromising position in the case of Sulekha Bairagi vs. Prof. Kamala Kanta Bairagi, Calcutta
High Court. The wife was also accused of shirking her responsibilities as a wife. On the basis of
the facts presented, the court ruled in favour of the petitioner, i.e. the spouse, and granted judicial
separation. The preceding cases demonstrate that such conclusions are based on facts and
evidence.

It's important to remember that sexual intercourse is a necessary requirement for being found
guilty of adultery. Anything less than sexual intercourse is not considered adultery; at the
absolute least, a small quantity of penetration is required. It's also important to remember that
every sexual act must be voluntary and consented. It is believed that in order to show adultery,
two factors must be proven: the intention to be adulterous and the ability to gratify such an
intention.
In all situations of adultery, the petitioner bears the burden of proof. It is their role and obligation
to demonstrate to the court that the respondent has committed adultery. The Supreme Court
declared in the landmark decision of Bipin Chander v Prabhawati that the fact that the
respondent is guilty of adultery must be shown beyond a reasonable doubt. It should be
emphasised that this case occurred a long time ago, and present law has changed as a result of
legislative changes. Adultery no longer requires proof beyond a reasonable doubt and can now
be established by a preponderance of evidence. The Supreme Court further emphasised that the
concept of proof beyond a reasonable doubt should only be used to criminal cases, not civil
cases, and especially not those involving personal ties such as husband and wife.

MUSLIM LAWS ON ADULTERY

Adultery is a highly penal offence according to the Quran, and it is punishable by death by
stoning. It is not conceivable, however, due to the compassionate treatment of persons under a
democratic constitution. If a husband has enough proof to show his wife's adulterous connection,
he has the right to divorce her under Muslim law. Only in the case of false evidence can a wife
ask for the accusations to be dropped or for him to be divorced.

However, if the husband withdraws his claims and apologises in the way required by law, the
wife's claim continues to exist. In the case of Tufail Ahmad versus Jamila Khatun, the Allahabad
High Court stated that this may be used as a reason for divorce for such wives who are not guilty
of adultery.

According to Section 2(viii)(b) of the Dissolution of Muslim Marriage Act,1939, a man's wife
can sue him for cruelty if he leads an ill-famous life or links himself with any lady of evil repute.
This Muslim legal concept is similar to the concept of adultery.

In the case of Zaffar Hussain v. Ummat-ur-Rahma, 1919, the woman accused her husband of
claiming in public that she had illicit relations with her brother. In its decision, the court stated
that if a woman is wrongfully accused of adultery, she is entitled to divorce. If the claims of
adultery are valid, however, the wife is not entitled to a divorce.
ADULTERY UNDER SPECIAL MARRIAGE ACT, 1954

The Special Marriage Act of 1954 recognises adultery as a legal reason for divorce if the
responder had voluntary sexual intercourse with a person who is not his or her husband after the
marriage was solemnised. Adultery is a separate offence under the statute, and no other offence
must be present in order to submit a petition for divorce or judicial separation.

In the case of Sari v. Kalyan, 198, the Calcutta High Court stated that while adultery does not
carry a preponderance of the evidence burden, it is a severe crime that must be proven beyond a
reasonable doubt. This is because, while prima facie proof may not exist in the case of adultery,
circumstantial evidence must sufficient.2

2
Bag, Amartya, Adultery and the Indian Penal Code: Analysing the Gender Neutrality of the Law (June 20, 2010).
Available at SSRN: https://ssrn.com/abstract=1627649 or http://dx.doi.org/10.2139/ssrn.1627649
ADULTERY AS A CRIMINAL OFFENCE:
Adultery was a crime under Chapter XX of the Indian Penal Code until it was declared
unconstitutional by the Supreme Court of India on September 27, 2018. A man who had
consenting sexual intercourse with the wife of another man without that husband's consent might
have been sentenced to up to five years in prison, a fine, or both under Section 497 of the Indian
Penal Code, which dealt with adultery. When the law was initially passed in 1860, the wife
might be charged with aiding and abetting the crime.3

After being passed by the Legislative Council, the Governor-General assented to the Indian
Penal Code on 6th October, 1860.

Section 497 read as follows:

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.

CONSTITUTIONAL VALIDITY OF S. 497 IPC

It was challenged on the grounds that it went against the constitutional obligation of equality.
The Constitution's validity has also been called into question on numerous occasions.4

The provision specifically states that the wife will not be punished, even if she aids and abets the
crime. The fact that the clause does not allow the wife to sue her husband for adultery is no
longer a point of contention. The law clearly considers the wife, who is having an unlawful
relationship with another man, to be a victim rather than the perpetrator of the crime. The

3
FISHBANE, MICHAEL. “ACCUSATIONS OF ADULTERY: A STUDY OF LAW AND SCRIBAL PRACTICE
IN NUMBERS 5:11—31.” Hebrew Union College Annual 45 (1974): 25–45. http://www.jstor.org/stable/23506847.

4
Kanchan, Tanuj & Nagesh, Kr. (2008). Adultery and the Indian law. 10. 26-29.
legislature views adultery, as defined in section 497, as a violation of the marriage home's
sanctity, perpetrated by a male. As a result, people who desecrate such sacredness are hauled into
the legal system.

The use of a double standard has been chastised. "Now is the moment to rethink whether the
crime of adultery is in line with our current conceptions of women's status in marriage." The
Indian Penal Code's definition of adultery allows a husband to prosecute his wife's paramour
without providing a similar right for the woman to prosecute the husband when he has
extramarital affairs, or the right to prosecute his paramour. The crime of adultery,
understandably, was contested as a violation of article 14 because it treated men and women
differently. Even if we accept the notion that the law is neutral in that both husband and wife
cannot sue one other for the criminal offence of adultery. Why is it that only an offended
husband has the right to sue a male paramour for a breach of spousal sanctity, but the wife does
not have the same right to sue a female paramour? Isn't this a bias in the law, as well as a
violation of a woman's constitutional rights? Many claim that the law discriminates not just
against married females (wives), but also against males (paramour). A wife should have the same
right to sue her husband's female paramour.5

PETITION TO DECRIMINALISE SECTION 497

In December 2017, the Supreme Court agreed to hear a public interest case in which it was
requested that the Court strike down or repeal Section 497 of the Indian Penal Code totally.

The part is said to be in violation of two articles of the Indian Constitution: Article 14 and Article
15.

Article 14 reads as follows: "The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India."

Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them."

5
Shivanshi Shukla , A Critical Analysis on Decriminalizing Adultery, 4 (2) IJLMH Page 2507 - 2530 (2021), DOI:
http://doi.one/10.1732/IJLMH.26545
The Court stated in its opening observations that this was not the first petition challenging the
section; arguments and cases on the subject have been ongoing since 1954, making it critical for
the Court to reach a decision on the issue quickly. It seems that laws should be gender-neutral. In
this scenario, however, it simply renders the woman a victim and so "creates a dent on the
woman's distinct independent identity."

The arguments by the party opposing this decriminalization- the Centre- states that the section
"supports, safeguards and protects the institution of marriage... Stability of marriages is not an
ideal to be scorned." It further argues that if the petition is allowed, then "adulterous relations
will have more free play than now." As an alternative, it provides that the recommendations of
the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee
recommended that the wording of the section be changed to: "Whoever has sexual intercourse
with the spouse of any other person is guilty of adultery..." to tackle the problem of gender bias
which arises from the reading of the current section.

 The Supreme Court called the law unconstitutional because it "treats a husband as the sole
master."  According to the Supreme Court, it is still a valid reason for divorce.

JUDGEMENT

Section 497 was declared illegal because it was based on the notion that a woman is regarded the
husband's property and cannot have relations outside of marriage. The husband, on the other
hand, was not subject to the same constraints. By discriminating against married women and
perpetuating gender stereotypes, Section 497 infringes on their right to privacy and liberty.

On September 27, 2018, a five-judge Constitution bench of the Supreme Court unanimously
decided to repeal Section 497, making it illegal in India.
CONCLUSION
In our country, adultery has long been stigmatized. In reality, in India, dissatisfaction has grown
over time. Adultery was only a reason for divorce in our nation until 1976 if the spouse was
living in adultery, but now a petition for divorce or judicial separation can be filed even if there
is a single occasion of voluntary sexual intercourse with someone other than the spouse. The
Indian judiciary has taken the issue of adultery very seriously. It has taken into account a variety
of societal factors, as well as the circumstances of the party seeking divorce and the existence of
children. When there are children, the cases submitting the petition has been delayed are taken
gently. However, there is no requirement to apply this criterion in all cases involving adultery.

Personal laws are growing more progressive  and these rules have evolved significantly over
time. One striking feature is the theoretical lack of adultery in Islamic law. Unfortunately,
adultery and infidelity are cultural difficulties we cannot avoid in this day and age.

In light of this, legislation that guarantees justice to the estranged spouse, regardless of gender,
caste, or religion, must be completely created and equipped. The legislature should explore
unifying personal legislation, at the very least to the extent that it protects individuals' basic
rights equitably. Most essential, people must be made aware of the legislation and taught about it
so that they can fight for their rights against a cheating spouse.
BIBLIOGRAPHY
Kanchan, Tanuj & Nagesh, Kr. (2008). Adultery and the Indian law. 10. 26-29.
Kipnis, Laura. “Adultery.” Critical Inquiry 24, no. 2 (1998): 289–327.
http://www.jstor.org/stable/1344170.
FISHBANE, MICHAEL. “ACCUSATIONS OF ADULTERY: A STUDY OF LAW
AND SCRIBAL PRACTICE IN NUMBERS 5:11—31.” Hebrew Union College Annual
45 (1974): 25–45. http://www.jstor.org/stable/23506847.
“The Crime of Adultery.” The American Law Register (1852-1891) 16, no. 12 (1868):
769–77. https://doi.org/10.2307/3303371.
Shivanshi Shukla , A Critical Analysis on Decriminalizing Adultery, 4 (2) IJLMH Page
2507 - 2530 (2021), DOI: http://doi.one/10.1732/IJLMH.26545
Bag, Amartya, Adultery and the Indian Penal Code: Analysing the Gender Neutrality of
the Law (June 20, 2010). Available at
SSRN: https://ssrn.com/abstract=1627649 or http://dx.doi.org/10.2139/ssrn.1627649
Adultery: A Ground for Divorce in India, Available at:
https://www.indiafilings.com/learn/adultery-a-ground-for-divorce-in-india/
International Journal,Volume 119 No. 17 2018, 1425-1434 ISSN: 1314-3395 (on-line
version) url: http://www.acadpubl.eu/hub/ Special Issue