Author: Somala Viplava, Sri Padmavati Mahila Visvavidyalayam
To the point
Marriage as a social institution in India, the marriage is based on belief, faith and worship. The adultery is considered as a ground for divorce in India under section 13(1)(i) of the Hindu Marriage Act,1955 dissolve the marriage. Because, the adultery is said as deceiving their own person by involving in sexual intercourse with other person, who is not their husband or wife with the knowledge that he/she is not their own wife/husband. A wife is considered as the own property of the husband by taking away her without consent of her husband is considered as taking away the property of a man by another man. Before 27th September,2018 the adultery is considered as a crime under section 497 of IPC,1860,after that it was not a crime but it remained as a ground for divorce in personal laws.
Use of Legal Jargon
Here are some constitutional provisions and other laws related to adultery in India:
Constitutional provisions
1. Article 14:
– This article ensures that individuals accused of adultery are treated equally under the law, regardless of their gender or social status.
2. Article 15:
– This article protects individuals from discrimination based on their gender or marital status.
3. Article 21:
– This article has been interpreted to include the right to privacy and dignity, which can be relevant in adultery cases.
Indian Penal Code (IPC),1860
1. Section 497: Adultery (repealed in 2018)
-This section previously made adultery a criminal offense, but it was struck down by the Supreme Court in 2018 (Joseph Shine vs. Union of India) for being unconstitutional.
2. Section 498: Enticing or taking away or detaining with criminal intent a married woman- This section is about criminal offense to entice or take away a married woman with the intention of having an illicit relationship.
Other Laws
1. Hindu Marriage Act, 1955: Section 13(1)(i) – This section allows for divorce on the grounds of adultery.
2. Muslim Personal Law (Shariat) Application Act, 1937:
Section 2 – This section allows for divorce on the grounds of adultery, among other reasons.
3. Indian Divorce Act, 1869:
Section 10(1)(i) – This section allows for divorce on the grounds of adultery.
The Proof
Burden of proof: The burden of proof depends on the husband, to prove that his wife is with a third person in places like hotels or other places where there is a chance to physical relationship between them.
– Photographs and videos as they are secluded places
– messages, emails, letters that shows sexual relationship between them
– sexting dialogues between the spouse and third person
– testimony
Abstract
Adultery:
Adultery means a voluntary sexual intercourse between a married man and wife of another man without knowledge of her husband.
What is adultery:
Adultery means having an illegal relationship between a married male with a women other than the current spouse is known as adultery.
According to section 497 of IPC,1860 adultery is defined as voluntary sexual intercourse by a married persons with someone other than their spouse.
According to our customs marriage is uniting two different genders by giving their souls to one another with belief, faith and worship on each other. By involving in sexual intercourse with another married person who is not their spouse is said as cheating their spouse.
Adultery as a criminal offence under IPC,1860
Adultery was a criminal offence under chapter xx of section 497 of IPC,1860 before 27 the September 2018.
Punishment for adultery under IPC,1860 :
1. The person who involved in sexual intercourse with a third person shall be punished for up to five years of imprisonment;
2. Afine or both;
Under this section the men only punishable but not female and also if the married men having sexual intercourse with unmarried it is not considered as a crime, but a married man having sexual intercourse with married woman it is considered as a criminal offence and is said as by involving in sexual intercourse with other’s wife is said other’s property taken away by the man without his knowledge.
So, it is totally gender biased and the women involved in adulterous relationship with the knowledge that he is not her husband were not punished under this section.
It was struck down by the supreme court on 27 the September,2018, in the case of JOSEPH SHINE VS UNION OF INDIA, 2018, after this it was no more a criminal offence under the IPC,1860.
Adultery as a ground for divorce
In India, according to Hindu Marriage Act,1955, and Indian Divorce Act,1869 and Special Marriage Act either of the party can ask for divorce based on the ground of adultery. The burden of proof depends on the person who ask for divorce to prove that their spouse has sexual intercourse with third person.
According to section 13(1)(i) of Hindu Marriage Act, 1955, the adultery is considered as a ground for divorce and also section 10(1)(i) of Indian Divorce Act,1869 is also deals with the adultery as a ground for divorce.
Case Laws
Supreme Court Cases
1. Joseph Shine v. Union of India (2018): The Supreme Court struck down Section 497 of the Indian Penal Code (IPC), which made adultery a criminal offense.
2. Sowmithri Vishnu v. Union of India (1985): The Supreme Court held that a husband’s right to prosecute his wife’s lover for adultery is not absolute.
3. Dastane v. Dastane (1975): The Supreme Court held that adultery can be a ground for divorce.
High Court Cases
1. Harendra Nath v. Sm. Jyotsna Nath (1983): The Calcutta High Court held that a wife’s adultery can be a ground for divorce.
2. Rajinder Kaur v. Harmit Singh (2013): The Punjab and Haryana High Court held that a husband’s adultery can be a ground for divorce.
3. Smt. Meena v. State of Maharashtra (2015): The Bombay High Court held that a woman cannot be prosecuted for adultery unless her husband complains.
Other Notable Cases
1. V. Revathi v. Union of India (1988): The Supreme Court held that a woman’s right to equality is violated by Section 497 of the IPC.
2. Smt. Sarla Mudgal v. Union of India (1995): The Supreme Court held that bigamy is a ground for divorce.
Landmark Judgments
1. Yusuf Abdul Aziz v. State of Bombay (1954): The Supreme Court held that the concept of adultery is not limited to sexual intercourse.
2. Dwarika Nath v. Sm. Prema (1964): The Punjab and Haryana High Court held that adultery can be proved by circumstantial evidence.
Conclusion
Adultery in India is not a criminal offence under IPC,1860 after the Joseph shine case in 2018.I support the decision made by the supreme court in this case because it is violating article 14,15 and 21 of the Indian constitution and it is said as cheating of a spouse but it not gives punishment to wife so the section 497 of IPC is unconstitutional and I think in some extent it protects the female by not giving punishment to them, and also it encourages the male by including sexual intercourse with a married woman other than one’s spouse. so, I support the Joseph shine case decision by the supreme court.
FAQS
1. Is Adultery criminal offence under IPC,1860?
Ans: No,it is not a criminal offence under IPC,1860.
2. Which landmark judgement struck down the adultery section by the supreme court?
Ans: JOSEPH SHINE VS UNION OF INDIA,2018,in this case the supreme court struck down the section 497 of IPC,1860 and made adultery not a criminal offence.
3. What is the current status of Adultery in India?
Ans: It is not a criminal offence under IPC,1860, but the current status of Adultery in India is it is a ground for divorce under personal laws.
