Adultery: A Redundant Provision In The IPC

The general definition of 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 and has also undergone change significantly since its inception in many countries
with India as an exception.Adultery was first drafted not as a punishable offence in the Penal code
in 1837.However,later in 1860 after the Second Law commission appointed in 1853 in its report
included adultery as a punishable offence keeping in mind the prevailing social conditions of
women.The commission concluded that it would not be advisable to exclude adultery from the
Penal Code as an offence.Since then there has not been made any significant change in the nature of
the law as coded in 1860.First we need to understand the law as mentioned in IPC.
According to Section 497 of the Indian Penal Code (IPC), 1860:
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. If we analyse
the above mention section,following things will emerge as the basis to prove 'adultery' :
1.The adulterer must have had sexual intercourse with the wife of another man.
2.The sexual intercourse should not amount to rape i.e. the womans minimum age should be 16
and must have had sexual intercourse with the man wilfully.
3.The accused must have knowledge of the marital status of the woman. It may also be noted that
mere knowledge of the existence of the husband would be sufficient to prove knowledge. His
identity may not be known to the accused.
4.The sexual intercourse done by the adulterer must have been without the consent of the husband.
Criminal intercourse with a married woman tended to adulterate the issues or children being
born out of such a relation, thereby burdening the womans husband to support and provide for
another man's children. The purity of bloodline of the children born out of such adulterous
relationships is lost, and the chain of inheritance (of property) gets altered due to such relations.It
was to prevent this mischief of altering the chain of inheritance that section 497 IPC was
introduced. The idea was to secure the reason behind marriage (i.e. to ascertain the purity of a
child), so that inheritance is not altered but remains with the husband of the woman concerned.
Who can register a complaint on adultery?
A husband alone is authorized to make a complaint on adultery. An offence of adultery can
be charged only against a male and based on a complaint by a husband and nobody else. As well, no
court can take cognizance of an offence of adultery without a complaint made by an aggrieved
person normally the husband. A wife cannot make a complaint against her husband or his illicit
lady-friend, for the criminal offence of adultery under the Code of Criminal Procedure or Indian
Penal Code.
Procedure to file the case of an adultery in India is a different one.The husband may inform the
details of the intercourse a person had with the formers wife to the Police Officer, at the local
police station. The details will be recorded in the book kept for registering first information. Then
the officer will refer the complainant to the Magistrate. The Magistrate, in turn, may accept the
complaint and decide on merit whether to proceed with the complaint or not.
The Magistrate may order a police investigation or an inquiry by the officers of the court and
may put the case to trial to collect evidence, if necessary. The police are restrained by law to
investigate the offence only with a Magistrates order. The evidences that may help proving adultery
are photographs, testimonies of acquaintances, mobile phone records, travel records, computer data
etc.
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When adultery is charged on a person, the consent of the lady with whom he had sex alone
is not a sufficient condition to get off scot-free. On the contrary, if the intercourse is with her
husbands consent but without her willful consent, it amounts to rape (IPC 375).
If the lady (the wife) denies the allegation of having sexual intercourse and the husband goes
with the allegation, the case will be tried in the court when there is prima facie evidence and the
case will be decided based on the merit of the evidence admissible as per law. The burden of proof
in such situation lies with who declares, but not with who denies. Conclusive proof is necessary for
punishing an accused. An accused is treated innocent until proven guilty. Unless the accused is
found guilty beyond any reasonable doubt, he will definitely be acquitted. At the end of the trial, the
accused will be convicted / acquitted on the basis of merit.
The punishment for adultery is a jail term of maximum five years or with fin or both. The
adulterous wife cannot be punished not even as an abettor.
Now let us understand each ingredient critically.
1.The adulterer must have had sexual intercourse with the wife of another man.
The man having sexual intercourse with the woman should be the wife of another man
through lawful marriage.The wife if fails to show her marriage in a lawful means as guided in India
through various marriage acts then she will not be considered as a victim of the adultery and will
not be eligible to file the case.Also if the man had intercourse with the unmarried woman,widow or
prostitute then it does not amount to adultery. Adultery as a law was brought to maintain marriage
as a spiritual sanctity and to prevent men from having illicit relationships with other women.This
was prevalent in 1850s at a greater extent .But why today? The wife is not blamed for the
adultery.The criminal action is filed not against the wife but against the adulterer. The wife is not
guilty
of
offence,
not
even
as
an
abettor.
The adulterer is considered 'an outsider to the matrimonial unit who invades the peace and
privacy of the matrimonial unit and poisons the relationship between the two partners constituting
the matrimonial unit.' How dicriminatory tha laws are in this scenario where the wife is always seen
as the victim and the man been portrayed as the seducer and the culprit. The woman's advances and
actions are not judged and are not taken into consideration
2.The adulterer must have had knowledge or must have had enough reason to believe that the
woman is the wife of another man.
How is it possible for the man to have the knowledge of woman's marrital status if the
woman has seduced him or lured him to have sexual intercourse?It has been taken for granted here
about man being the main perpetrator.However the case is being judged differently in different
cases considering the 'sufficient reason' not being the common grounds of adultery in all cases.
3.The adulterer must have had sexual intercourse without the consent of or connivance of the
husband.
It may be understood here that if the husband has the consent of or knwolege of the illicit
relationship then the 'adulterous' relationship absolves automatically and the third party man cannot
be charged in any case. But in such conditions the former husband may be termed as 'acquiesce'.
Now the sanctity of marriage is not questioned here even after wife commiting adultery but evading
the act 'legally'.
4.The adulterer must have had such sexual intercourse that did not amount to rape.
The conditons here are again The married woman must be above the age of 16 and a
consenting party to the sexual intercourse. It is necessary for the married woman to willfully have
sexual intercourse with the man. If she does not consent to the act, it would amount to rape and not
adultery. In such a situation the husbands consent is immaterial. However, if the woman is below
16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute
rape.

In other words, a woman is always the victim of adultery and never a party to it. The cause
for such legislation can be deduced from certain assumptions which form the basis for the said
legislation. These assumptions are that a man is always the seducer and the married woman is
simply a passive victim of the ordeal; the adulterous man trespasses upon another mans marital
property i.e. his wife. Thus, the justification given to the enactment of such legislation is that it
attempts to promote goodwill between the spouses and encourages continuity in the marriage'.
Discriminatory aspect of law
In the case of Yusuf Abdul Aziz v. State of Bombay, the discriminatory aspect of the law was
challenged with due cause and reason. The appellant who was accused of adultery relied on Articles
14 and 15 of the Constitution which explicitly preach equaltity and disallows discrimination on any
basis. However Article15(3) of the Constitution says, Nothing in this article shall prevent the State
from making any special provision for women.......... ". Hence, the justification for the provision is
that it was originally meant to be a special law deemed to protect women. This justification was
reiterated in subsequent judgments of the Supreme Court. The Supreme Court, in these cases, relied
on the justification that an outsider to the couple in matrimony, who poisons their peace in married
life, should alone be punished.
This provision only punishes a man, thus, assuming that a woman is incapable of thinking
and taking responsibility for her own actions.Another effect of this provision that may be worth
pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried
woman, the man cannot be charged of adultery although his wife and the unmarried woman are sore
victims of such an act.This is a kind of protectionist approach where women are protected and it
easily holds stereotypes which in the present case is that women are weak.
Conclusion
It must be kept in mind that adultery was drafted into the Indian Penal Code, 1870 during
the existence of the Colonial Rule in India. The prevailing conditions at this time were such that a
woman was looked at as being the mere property of a man. However, in the present day, women are
not mere chattel whose identities are defined by the men surrounding them, but by their own
individual personalities. Law, being dynamic in nature, must evolve with society. Therefore, the
dubious logic behind the adultery laws in India cannot be accepted in todays continuously evolving
society.
References:
1.The Law Commission of India, 42nd Report.
2.Committee Chaired by Justice V.S. Malimath; The Report of the Committee on Criminal Justice
Reforms
3.Yusuf Abdul Aziz AIR 1951 Bom 470