CRIMINAL LAW-1 2016

THE OFFENCE OF ADULTERY: A CRITICAL STUDY

SUBMITTED BY – ROHIT,
ROLL NO. – 1426 (B.B.A. L.L.B.)

SUBMITTED TO – FATHER PETER LADIS

(FACULTY OF CRIMINAL LAW)

FINAL DRAFT SUBMITTED IN THE FULFILLMENT OF THE SUBJECT

CRIMINAL LAW-1 FOR THE COURSE B.B.A. L.L.B.(HONS)

OCTOBER 2016
2015-2020

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, PATNA-1
1|Page
 CRIMINAL LAW-1 2016

Contents
ACKNOWLEDGEMENT .......................................................................................3
DECLARATION......................................................................................................4
1- INTRODUCTION .............................................................................................5
2 - OBJECTIVES OF THE STUDY ......................................................................6
3 - HYPOTHESIS ....................................................................................................6
4 - RESEARCH METHODOLOGY ......................................................................6
5 - SOURCES OF DATA ........................................................................................7
6 - LIMITATIONS OF THE STUDY ....................................................................7
7 - SCOPE OF THE STUDY ..................................................................................7
8 - CHAPTERISATION ..........................................................................................8
8.1 - INTRODUCTION .....................................................................................8
8.2 - ADULTERY: DEFINITION AND MEANING .....................................9
8.3 - ESSENTIAL INGREDIENTS OF ADULTERY .................................10
8.4 - LIABILITY OF WOMAN......................................................................12
8.4 - SOME JUDICIAL DECISIONS ............................................................13
8.5 - MISUSE OF SECTION 497 ...................................................................14
8.6 - CONCLUSION AND SUGGESTIONS ................................................15
BIBLIOGRAPHY ..................................................................................................17

2|Page
 CRIMINAL LAW-1 2016

ACKNOWLEDGEMENT

I would like to thank FATHER PETER LADIS whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who
helped me immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.

Thank you

Rohit.
3rd semester.

Roll no-1426.

3|Page
 CRIMINAL LAW-1 2016

DECLARATION

I hereby declare that the work reported in the project entitled “THE OFENCE OF

ADULTERY: A CRITICAL STUDY” submitted at CHANAKYA NATIONAL LAW

UNIVERSITY is an authentic record of my work carried out under the supervision of

FATHER PETER LADIS. I have not submitted this work elsewhere for any other degree

or diploma. I am fully responsible for the contents of my Project Report.

SIGN-

NAME-

DATE-

4|Page
 CRIMINAL LAW-1 2016

1- INTRODUCTION
The word ‘adultery’ has been derived from the Latin term ‘adulterium’ and is defined as
consensual sexual relationship between a married woman and an individual other than his/her
spouse. Almost all religions throughout the world condemn it and treat it as an unforgivable
offence. However, this may not be reflected in the legal jurisdictions of the countries but adultery
is recognized as a solid ground for divorce in all penal laws. Adultery is extramarital sex that is
considered objectionable on social, religious, moral or legal grounds. Though what sexual
activities constitute adultery varies, as well as the social, religious and legal consequences, the
concept exists in many cultures and is similar in Islam, Christianity and Judaism.1 A single act of
sexual intercourse is generally sufficient to constitute adultery. Before the I.P.C. was enacted,
adultery was not an offence in India either for men or women. It was also not included in the first
draft of the Penal Code. However, the second law commission added it. The Indian Penal Code
was framed by the Britishers in 1860 which was the time when women in India were considered
the property of the men, and the offence on adultery given under s 497 is a clear reflection of
this. The law commissioners noted that the then prevalent social infrastructure and the secondary
and economically dependent position of women were not conducive to punish adulterous men.
Further, they noticed that a wife was socially conditioned to accept her husband’s adulterous
relationship as polygamy was an everyday affair. She neither felt humiliated nor was it a cultural
shock for her. The law commissioners incorporated adultery as an offence in the Penal Code
punishing only the adulterous men, leaving women, who in their opinion were already living in
humiliated and oppressive conditions within the family.

1. “Encyclopedia Britannica Online, “Adultery”.

5|Page
 CRIMINAL LAW-1 2016

2 - OBJECTIVES OF THE STUDY

To study in detail about the offence of adultery, whether both genders are treated equally under
Section 497 0f the Indian Penal Code or there is gender discrimination regarding this offence.

3 - HYPOTHESIS
The researcher presumed that law treats both genders equally and therefore both sexes could be
made liable for the offence of adultery under section 497 of the Indian Penal Code.

4 - RESEARCH METHODOLOGY
 The researcher had emphasized and used the doctrinal method to do this project

6|Page
 CRIMINAL LAW-1 2016

5 - SOURCES OF DATA
a. Primary source
(i) Statues
(ii) Case laws
(iii) Law commission reports

b. Secondary source
(i) Journals
(ii) Newspaper

6 - LIMITATIONS OF THE STUDY

The researcher had certain limitations –

 The researcher being a student could access only limited area.

 Since there was lack of time the researcher could not dive deep into the details of the
topic.

7 - SCOPE OF THE STUDY

The study shall be a contribution to the Indian legal system as it has undertaken a comparative
study of other legal systems and their successful contributions to the growth of the society.

7|Page
 CRIMINAL LAW-1 2016

8 - CHAPTERISATION

8.1 - INTRODUCTION

Adultery means voluntary sexual intercourse of a married person other than with spouse. The
legal definition of adultery however varies from country to country and statute to statute. While
at many places adultery is when a woman has voluntary sexual intercourse with a person other
than her husband, at other places adultery is when a woman has voluntary sexual intercourse
with a third person without her husband’s consent. Though the modern trend is to decriminalize
adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian
and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures both
the man and the woman are equally punishable. Adultery is one of the burning issues in India. It
may not be a serious crime but it does play chaos in the lives of the people concerned. Our Indian
society is more conserved and expects faithfulness and loyalty of an individual towards his or her
spouse. A person who is committing an adulterous act is always aware of the fact that he or she
is violating the basic norms of the institution of marriage & that of the society and credibility and
trustworthiness is being targeted. The project is all about the effectiveness of the provision given
in The Indian Penal Code, i.e. section 497 of IPC.

Adultery may not seem to be gravest of crimes but it does bring out some of the direct
consequences. The individual committing adultery is always conscious of the fact that if
somehow his/her partner will come to know of his/her liaison, he/she won’t take it calmly,
indeed that person will have to face a lot of wrath & criticism by the family as well as the
society. To be vigilant against such a result, the felonious party may instigate a fierce attack
against his/her partner, resulting in a critical fault such as abduction or even murder. Considering
Indian laws and the scenario of our society, adultery is definitely a crime in India.

8|Page
 CRIMINAL LAW-1 2016

8.2 - ADULTERY: DEFINITION AND MEANING

According to Section 497 of Indian Penal Code, 1860,

Adultery is defined 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.”

This laws were drafted in 1860 when India was under British rule and the condition of Indian
woman was pathetic. During those periods, a man could’ve several wives and women were
socially and economically dependent on men. Women were treated as an object and considered
the property of men. Thus, while drafting the laws it was presumed that women are hapless
victims, not capable of committing such an offence, instead, it must be a man who will entice her
and involve her in an adulterous relationship. But these laws definitely treat a man and a woman
unequally in the institution of marriage. According to these laws:-

1. Man is always a seducer and the married woman just an innocent and a submissive
victim.
2. Wife is no more than a chattel to her husband and a third person had committed the
crime of intruding upon his marital possession by establishing a physical relationship
with his wife.
3. Only the husband of the treacherous woman (or a person who had care of the married
woman) is a distressed party and he is liable to file a complaint against the third party.
4. There is no provision in the law for a woman to file a complaint against her adulterous
husband. If a married man commits adultery with an unmarried woman or a widow or
with a married woman with the consent of her husband, his wife is not regarded as an
aggrieved party and she is not permitted to make any official grievance against her
husband.

9|Page
 CRIMINAL LAW-1 2016

8.3 - ESSENTIAL INGREDIENTS OF ADULTERY

I. The accused had sexual intercourse with the woman in question

A man having sexual intercourse with a married woman is an essential ingredient of the
offence. Though proof of sexual intercourse is essential for the offence of adultery, it can
rarely be proved by direct evidence. It has to be inferred from the facts and circumstances
of a case.2 However, the circumstances must be of such a nature that they fairly infer that
sexual intercourse took place. Evidence of opportunities sought for and obtained and of
undue familiarities, which point strongly to an inference of guilt, is sufficient to establish
the fact of sexual intercourse.3 The entire background and context of the case needs to be
taken into consideration for ascertaining sexual intercourse.4

II. That woman was the lawful married wife of another man
The section indicts sexual intercourse by a man, who is the wife of another man. The
factum of lawful marriage must be strictly proved. Sexual intercourse with a prostitute,
an unmarried woman, a widow, therefore, does not amount to adultery under the IPC.
Even sexual intercourse with a woman who lived with another man without marriage and
has got children from him does not amount to adultery, as she is not the wife of another
man.5

III. the accused knew or had reason to believe that that woman was the lawfully
married wife of another man
In order to be brought within the purview of this section, a man should not only have
intercourse with a married woman, but he must also ‘know’ or have ‘reason to believe’
that such a woman is the ‘wife of another man’. This does not mean that he should know
the identity of the husband. It is sufficient if he knows or has reason to believe that the
woman is married. The prosecution should establish the presence of such knowledge or

2. WJ Phillips v Emperor A.I.R. 1935 Oudh 506.

3. Vedavalli v MC Ramaswamy A.I.R. 1964 Mys 280.
4. AS Puri v KC Ahuja A.I.R. 1970 Del 214, (1970) Cr LJ 1441 (Del).
5. Brij Lal Bishnoi v State (1996) Cr.L.J 4286 (Del).

10 | P a g e
 CRIMINAL LAW-1 2016
reasonable belief. It constitutes mens rea and the prosecution should place sufficient
material before the court to prove that the accused had knowledge or reasonable belief
that the woman was married.

IV. The husband of the woman did not consent to or connive at such intercourse
Another requirement of law is that the adultery complained of has not been committed
either with the consent or connivance of the husband. This is based on the principle of
volenti non fit injuria, meaning ‘what is consented to cannot injure’.6 Such consent can be
express or implied. ‘Connivance’ is a figurative expression that indicates a voluntary
blindness to some act or conduct, which is known to be going on without protest or desire
to interfere with or to disturb. If the husband was fully aware of the fact that his wife was
committing adultery but did not do anything to stop the same, then the adulterous
relationship may be considered to have been committed with acquiescence7, and therefore
no offence can be said to have been committed. The absence or presence of consent or
connivance can be inferred from the circumstances of the case. Strict proof of the same is
not necessary.8

V. That the sexual intercourse so had did not amount to rape.

The offence of adultery by its very nature connoted that it is sexual intercourse between
two consenting adults. The woman, although married, must be a willing partner to the
sexual intercourse. However, if the accused has sexual intercourse without the consent of
the woman, then it is a much more graver offence and it would amount to rape. Here, the
consent or connivance of the husband is immaterial. Consent of the woman is primary. If
her consent is absent, then it will amount to an act of rape, punishable under section 376
of the IPC.

6. Re CS Subramaniam AIR 1953 Mad 422

7. Pothi Gollari v Ghani Mondal A.I.R. 1963 Ori 60, (1963) Cr LJ 312 (Ori).
8. State of Rajasthan v Bhanwaria A.I.R. 1965 Raj 191, (1965) Cr LJ 673 (Raj).

11 | P a g e
 CRIMINAL LAW-1 2016

8.4 - LIABILITY OF WOMAN

The offence of Adultery did not punish women but still existed in the code because at the time
the enforced law was enacted polygamy was deep rooted in the society and women shared the
attention of their husbands with several other wives and extramarital relations. Women were
treated as victims of the offence of adultery as they were often starved of love and affection from
their husbands and could easily give in to any person who offered it or even offered to offer it.
The provision was therefore made to restrict men from having sexual relations with the wives of
other men and at the same time to restrict their extra marital relations to unmarried women alone.
there’s an inherent flaw, It makes the offence punishable for men but not the wife, to punish the
man severely and to let the women who was an equal part to go scot free is unreasonable on the
face of it, it is discriminatory that for the same act the man becomes the manifestation of evil but
the woman still is considered to retain her virtues and is treated as a victim. It is unexplainable
that for the same wrongful act the man is presumed by the law to have a mens rea while no such
presumption is attributed in reference to the woman. The consent or the willingness of the
woman is no impediment to the application of this section, and, as generally happens, she is quite
aware of the purpose for which she is quitting her husband and is an assenting party to it.
Considering the present day situation and the vast transformation which the society has
undergone, blindly assuming that ‘man is the seducer and not the women’ would be a dangerous
proposition. The Justification taken by the Framers of the Code, and the retentionists lobby for
this aberration is that owing to the atypical social conditions, it would not be just & proper to
punish women equally, as they were a subjugated and exploited lot, and though it was to a
certain extent applicable in that era, now it is bygone.

12 | P a g e
 CRIMINAL LAW-1 2016

8.4 - SOME JUDICIAL DECISIONS

(i) In the case of Yusuf Aziz v. State,9 the Court ruled that the immunity granted to women
from being prosecuted under section 497 was not discriminatory but valid under Article
15 (3) of the Constitution. It does not offend articles 14 and 15 of the Constitution of
India.

(ii) In case of V. Revathi v. Union of India and Others,10 the court held that that Section
497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for
defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits
neither the husband of the offending wife to prosecute his wife nor does the law permit
the wife to prosecute the offending husband for being disloyal to her. Thus both the
husband and the wife are disabled from striking each other with the weapon of criminal
law.

(iii) In the case of Sowmithri Vishnu v. Union of India and Anothers,11 the court held that
the contemplation of the law, evidently, is that the wife, who is involved in an illicit
relationship with another man, is a victim and not the author of the crime. It is commonly
accepted that it is the man who is the seducer and not the woman.

9. A.I.R. 1951 Bom.470.

10. A.I.R.1988 SC 835.
11. A.I.R. 1985 SC 1618.

13 | P a g e
 CRIMINAL LAW-1 2016

8.5 - MISUSE OF SECTION 497

Section 497 of the Indian Penal Code punishes adultery. It is very astonishing to note that in this
case only the male partner is made liable for punishment. As the sexual intercourse does not
amount to rape, necessary implications follows that woman is willing and consenting party to the
act of sexual intercourse. Why then women is exempted from liability? Moreover, even if she
invites a male for this purpose, she will not be held guilty of any offence. This is very ridiculous.
A married woman has a greater duty than a stranger has, to abstain from doing such an act so as
to preserve the fidelity towards her husband whom she owes faithfulness on account of marital
tie. But in this case, her infidelity is excused completely and only stranger (man) is held liable,
even though both parties are equally responsible for commission of this act. This is clear
discrimination and this cannot be called protective discrimination either. Excluding her from
criminal liability is not based on any convincing logic or reason. Indian Penal Code’s provision
of ‘adultery’ exhibits double standards. Ranbir Penal Code, 1932 which is in force in Jammu and
Kashmir State penalizes such wife also. In Pakistan, Saudi Arabia, Iran, Egypt etc. both
participants i.e. man and woman are punished for adultery. It should be remembered that in
ancient Hindu Law Manu had provided for punishment for adulteress.12

The law is being misused as a bargaining tool by those women who indulge in adultery. When
their nefarious acts are exposed they take recourse to misusing this law, thereby deflecting the
needle of crime on innocent husband and his family. This law being an exception in criminal law
presumes the accused as guilty until proven innocent; hence the women’s word is taken as a
gospel of truth. And there from begins the saga of unending trials, tribulations and destruction
for an innocent man and his family.13

12. Dr. H.G. Kulkarni, “Erratic Dimensions of Law” Vol:118

13. Dr. Shobharam Sharma, “Legal Terrorism in India: Need to Change the Law”

14 | P a g e
 CRIMINAL LAW-1 2016

8.6 - CONCLUSION AND SUGGESTIONS

In light of the above critical analysis, it is very much apparent and beyond doubt, that the
prevailing law is not in consonance with the changed times, the law is neither socially apt nor
does it stand to the principles of equality, from absolute conservatism to absolute liberty; the
social fabric of our country has undergone a drastic change. In most of the foreign jurisdictions,
adultery, apart from being a ground for divorce, has been perceived as a criminal wrong against
marriage. Similarly, in these jurisdictions, both the spouses are generally held criminally
responsible for their extramarital sexual intimacy. However, the penal law of adultery in India is
premised on the one-and-a-half century old caste-based stratified “social setting” in the context
of the traditional conservative property-oriented familial ideology and sexual mores. It is also
premised on a few outdated and moot assumptions of sexuality, sexual agency and unequal
mutual marital rights and obligations of the spouses. It is high time that Recommendations made
by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into
consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away
with the irregularities, and in the interest of doctrine of equality. The need to amend the law on
adultery in India has not been felt in a few years rather jurists and lawyers have been pressing the
need for amendment since decades. The courts have held that they cannot strike down a section
on the ground that it is desirable to delete it. But the paper proposes an amendment to and not a
deletion of the section. Therefore the Legislature should, with immediate effect, bring an
amendment into the law of adultery and remove the gender biasness of this law. The object of
making adultery an offence and restricting it to men alone was to deter men from taking
advantage of women starved of the love and affection of their husbands and deter men from
having sexual relations with the wives of other men. Since men had the social sanction to
maintain such relations and women were starved of the love and affection of their husbands
women were treated as the victims and not the authors of the crime. When Section 497 was
enacted there were no codified personal and matrimonial laws like today but they are unequal
and inoperative. It is also bridled with deep-rooted obsolete assumptions predominantly premised
on gender discrimination and the wife's sexuality. Such a law in the 21st century undoubtedly
seems to be inconsistent with the modern notions of the status of women and the constitutional
spirit of gender equality.

15 | P a g e
 CRIMINAL LAW-1 2016

SUGGESSTIONS
 The existing gender discriminatory penal law of adultery, against this backdrop, deserves
a serious relook and revision to the effect that a person, male or female, who, being
married, has sexual intercourse with a female or a male (as the case may be) not his or
her spouses without the consent or connivance of such spouses be made criminally
responsible.

 Similarly, the spouse of the errant spouse be allowed not only to seek divorce from the
other life partner but also to initiate legal proceedings with a view to fixing criminal
liability of the “outsider” for wrecking the marriage.

 The Legislature should, with immediate effect, bring an amendment into the law of
adultery and remove the gender biasness of this law.

The fifth Law Commission recommended two reforms in the law relating to adultery in the I.P.C.
They are14 –

(i) With a view to doing with the immunity of the adulterous wife from prosecution and
conviction for committing adultery, it recommended that the wife, who has sexual
intercourse with a person other than husband, should be punished for committing adultery
as the reasons that prompted authors of the Penal Code in the 19th century for exempting
her from punishment are not valid and there is hardly any justification for not treating the
guilty pair alike.
(ii) The existing punishment of imprisonment for a term of five years for adultery should be
scaled down to imprisonment for a term up to two years as the existing punishment.

In 2003, Justice Malimath Committee also suggested that suitable amendments to section 497 of
IPC should be made to bring adulterous woman within its purview as the object of section 497 is
to preserve the sanctity of the marriage.15

14. Law Commission of India, ‘42nd Report: The Indian Penal Code’, Government of India, 1972, para 20.18.
15. Ministry of Home Affairs, ‘Committee on Reforms of Criminal Justice System’, Government of India, 2003.

16 | P a g e
 CRIMINAL LAW-1 2016

BIBLIOGRAPHY
BOOKS

 K.I. Vibhute, P.S.A.Pillai’s CRIMINAL LAW (12th Edition, Lexis Nexis, 2014).
 Ratanlal & Dhirajlal, THE INDIAN PENAL CODE (34th Edition, Lexis Nexis 2014).
 K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE (2nd Edition)
 Dr. Hari Singh Gaur, THE INDIAN PENAL CODE (15th Edition)

WEBSITES VISITED

 http://www.advocatekhoj.com/index.php
 https://criminallawyersindia.wordpress.com/category/punishment-for-adultery-in-india-2/
 https://indiankanoon.org/doc/1833006/
 http://www.legalserviceindia.com/article/l291-Adultery.html

17 | P a g e