Meaning of adultery

The word adultery finds its roots in the Latin term ‘adulterium’ which is the combination of  ‘ad’ meaning towards, and ‘alter’ meaning other. For the purpose of relief in matrimonial jurisdiction, Halsbury Laws of England defines adultery to mean consensual sexual intercourse during the subsistence of a marriage between one spouse and a person of the opposite sex not being the other spouse. 

According to Merriam Webster dictionary, adultery is voluntary sexual intercourse between a married person and someone other than the person’s spouse or partner.[1]

Law of Adultery in India

In the Indian context, Section 497 of the Indian Penal Code provides the definition of ‘Adultery’ which states:

“Whoever has sexual intercourse with a person who is and whom he has known 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 the term of five years or with fine or with both. In such cases, the wife shall not be punishable as an abettor.”[2]

Although adultery was not originally punishable under the code, the second commission recommended its view of there being no reason for excluding this act from being punishable under the code. 

In addition to the definition found under section 497 of IPC, the act of adultery is also provided in the Hindu Marriage Act, 1955, under section 13(1), as one of the grounds to file for divorce. Under the Act, adultery consists of a person having voluntary sexual intercourse with another person who is not his/her spouse. Further, adultery has been mentioned in the Code of Criminal Procedure and other personal laws. 

Dissecting the essentials of the offence of ‘Adultery’

Section 497 read with Section 198 of Crpc sets forth the following essentials to constitute ‘adultery’:

• That the accused had sexual intercourse with a woman
• The woman was the wife of another man and they were lawfully married
• The accused knew or has the reason to believe that the woman was married
• There was no consent of the husband of the victim woman.

While dissecting the essentials of the offence, it is visible that the provision is archaic in nature and deals with women as chattel. 

Standard of proof in case of Adultery

The burden of proof lies on that party who is alleging the case of adultery. In case of absence of any direct evidence, a charge of adultery can be proved by producing presumptive pieces of evidence like

• Circumstantial evidence
• Contracting Venereal diseases
• Confession and admission to parties
• The preponderance of probability etc.

Striking down section 497

In 1951, Yusuf Abdul Aziz challenged this constitutional provision of not punishing women. But the Bombay High Court upheld this provision by saying that this legislation is specially made for the women under the constitution and thus it does not contravene with any of the fundamental rights. Thus, not making the law void. 

The Supreme Court observed that adultery is wrong against the institution of marriage. Therefore the Supreme Court said that the purpose of it being an offence is to punish an outsider who breaks down this sanctity of marriage. In the case of adultery, the woman has always been considered as the victim of a seducer and not as an abettor. As the woman is considered the victim, the Court held that the law of adultery is non violating to Article 14  and positively discriminatory. It was reiterated in the case of Sawmithri Vishnu v/s Union of India[3] that section 497 is not violative of Articles 14,15 and Article 21 of the Constitution.

But as times changed, the position of women changed to some extent. The long debate on the issue of adultery finally ended in the year 2018 when a five-judge constitutional bench, headed by then Chief justice Dipak Misra,  unanimously struck down section  497 of the IPC.

Five judge bench unanimously said that the law of adultery is violative of the rights to equality and also the equal opportunity to women. The point which the court mentioned here is that adultery is no longer a criminal offence but it can be continued to treat it as a civil wrong and can be a ground for divorce. 

Who challenged the law?

In August a 41-year-old Indian businessman, Joseph Shine who used to live in Italy filed a petition in the Supreme Court to strike down the law of Adultery. He argued by saying that it is discrimination against men by only holding them liable for the extramarital affairs and women are treated as objects. His petition further reads that married women are not the special case for adultery and they are indifferent to men in this case. He also added that the law indirectly discriminates against women by presuming that women are the property of men. Mr Shine submitted a 45-page long petition in which he liberally quoted the American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary-General Kofi Annan on gender equality and the rights of women.

What did the judges say while giving the judgement?

While hearing the case, all the five judges of the constitutional bench said that law was unconstitutional, arbitrary and archaic. Chief Justice Dipak Misra said that it is time to say that the husband is not the master of the wife and hence women should be treated with equality along with the men. He also quoted John Stuart Mill in his judgement. Judge Rohinton Nariman said that ancient notions of man being the perpetrator and women being victims no longer holds good. Justice DY Chandrachud said that the law of adultery perpetuates the subordinate status of women and denies dignity, sexual autonomy, basing itself on gender stereotypes.

Indu Malhotra, who is one of two women among the 25 judges on the court, said: “The time when wives were invisible to the law and lived in the shadows of their husbands, has long since gone by.”

If we look at older law on Adultery it clearly shows that this law cannot prevail in present times. Thus it was the need of an hour to change such laws which do not confer with the Constitution of India or cause discrimination in the society. 

Sources:

• Merriam Webster dictionary https://www.merriam-webster.com/dictionary/adultery
• Legal services India http://www.legalservicesindia.com/article/146/Law-of-Adultery-in-India.html
• Indian kanoon

https://indiankanoon.org/search/?formInput=adultery

https://indiankanoon.org/search/?formInput=adultery%20cases

• BBC News

https://www.bbc.com/news/world-asia-india-45404927

• https://m.economictimes.com/news/politics-and-nation/sc-verdict-on-adultery-welcomed-by-lawyers-activists/articleshow/65977845.cms
• https://www.theguardian.com/world/2018/sep/27/adultery-is-not-a-crime-india-top-court-rules
• https://www.indiatoday.in/india/story/what-is-adultery-law-how-ipc-section-497-is-anti-women-1343308-2018-09-19

Endnotes

1. Merriam Webster dictionary
2. Section 497, Indian Penal Code, (45 of 1860)
3. Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.