Adultery

Source : http://www.legalserviceindia.com
Author : palak
Published on : September 13, 2016


  
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Palak Pathak, History of Legal Profession in India, Law Octopus. BALLB (II Year) University: University of Petroleum & Energy Studies

Adultery

Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. The legal definition of adultery varies in different jurisdictions and statutes. Adultery in India is a criminal offence and hence there are provisions related to adultery Indian Penal Code, 1860. Section 497 defines adultery 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 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.”

For instance, if Naina is married to Samar, and Naina has an affair with Kuljeet, then Samar can bring charges against Kuljeet, but Naina will not be charged under this offence.

It is important to lay down an establishment, that from the very onset, this law does not seek to preserve the sanctity of marriage- but it pursue to secure the structure of the institution. In case of V. Revathi v. Union of India, it was held that the man was seducer, not woman. Basically it was said that, Section 497 does not provide any right to the wife to prosecute the husband who has committed adultery with another woman. the above mentioned law is striking in its pursuit to incarcerate only the ‘outsiders’ in the marriage and the community also believes to punish the outsider who breaks into a matrimonial home and violates the sacredness of marriage.
In India, Section 497 of IPC a history of 150-year colonial period and, since from its commencement, it has been spinning into debatable and questionable controversies on several accounts, such as its gender bias approach, questioning equality clause, reflecting cultural conflicts, and strong arguments were raised either for its retention, alteration, or complete modification and deletion from penal statutes.
The object, philosophy and justification of legal regulation of the adulterous behaviour of a person in society has been examined appropriately on time scale so as to estimate whether its modification, retention, or deletion is imperative in the cotemporary context or otherwise.

History
Incidents related to husbands having illicit affairs with other women and wives cheating behind their husband were not unknown in ancient India. Hinduism never favoured Adultery, it was established as a mortal sin. According to Hindus, marriage is a pious and sacred relationship and the sanctity of marriage should be upheld all the times. Infringing the sacred commitment of marriage would lead to ruthless sin and a bad karma.

Hindu law are very strict against adultery, for both moral and social reasons. The ancient Hindu law also categorized the relationships which involved married women from those who are unmarried and the former attracted harsher punishment. There were also different acts for treating adultery, involving different caste of women. Ancient Hindu Society was not free from the obstacle of Adultery. Hindu Mythology illustrated many stories in which god themselves were indulge in adulterous thoughts and action. For instance how Lord Rama banished his wife into forest due to mere allegation of adultery. Manuscript has laid down chapters on the act of adultery. The book explains why adultery occurs, how to secure it and the ruthless punishment for the ones who are caught in such relationships. Centuries ago, this sin was punishable by death, either by public stoning, hanging, or even worse.

When the Indian Penal Code, was drafted Lord Macaulay didn’t approve adultery/ infidelity as a provision in IPC, but in the second report the presidents disfavoured Macaulian’s perceptions about adultery and imposed heavy reliance upon his marks and concluded that committing adultery was a heinous crime and the offender will be liable for punishment. Hence, section 497 was instituted in Indian Penal Code.

Immediately after the institution in the Constitution of India, Section 497 Indian Penal Code was impugned on the ground that it usually goes against the spirit of equality inculcated in the Constitution. One of the most controversial cases was in 1951, when Mr Yusuf AbdulAziz, who was charged for adultery, grappled before the Bombay High Court that Section 497 of IPC is unconstitutional as it, in infringement of Articles 14 and 15 of the Constitution, as it operates unequally between a man and a woman by making the former only responsible for adultery. Therefore, he argued, its discrimination in favour of women and against men exclusively on the ground of sex.

In most of the foreign jurisdictions, adultery, exclusively from being a ground for divorce, it has been realize as a criminal wrong against marriage. Coincidentally, in these jurisdictions, both spouses are generally adhered criminally responsible for their extramarital sexual intimacy.

However, the law of adultery in India is commenced on the one and a half century ancient caste- based "social norms" in the reference of the traditional conservative property-oriented familial ideology. It is also pre conceived on a few obsolete and moot assumptions of sexuality, sexual agency and unequal marital rights.

Endnotes
# Dr. Paras Diwan, Modern Hindu Law, (21 ed. 2012).
# Indian Penal Code, S. 497 (1860).
# Vaagisha Das, Messed up Adultery Laws in India, October 12, 2015.
# Jayaram V., Hinduism and Adultery, November 22, 2008.
# Vijaykumar Chaubey, Adultery: A legal Analysis, 2011.
# Supra 3.