The word Adultery is derived from a French word adulterium which means to corrupt. Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. Adultery is a ground for divorce and judicial separation in Hindu laws (section 13 of Hindu Marriage Act, 1955) and Muslim laws. Before the IPC 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 to the IPC.
SECTION 497 OF IPC
According to section 497 of Indian Penal code, 1860 Adultery means, “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 a case, the wife shall not be punishable as an abettor”.
ESSENTIAL INGREDIENTS OF SECTION 497
1) Sexual intercourse with a married woman- a man having sexual intercourse with a married woman with her consent is an essential ingredient of adultery. 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, or a widow, therefore does not amount to adultery under IPC.
2) knowledge- in order to be brought within the purview of this section, a man should not only have intercourse with a married woman but also he must know or have a reason to believe that such woman is the wife of another man.
3) Consent of husband- another requirement of law is that adultery should not be done by the consent or connivance of the husband. This based on the legal maxim volenti non fit injuria means what is consented to cannot injure. Such consent can be implied or express.
4) Should not constitute rape- consent of the women is primary. If the accused has sexual intercourse without the consent of the woman, then it is a much graver offence and would amount to rape. The consent of the husband is immaterial here.
DECRIMINALIZATION OF ADULTERY
In cases like Sowmithri Vishnu vs. Union of India, Yusuf Abdul Aziz vs. UOI and in V Revathi vs. UOI, section 497 was held valid. In these cases it was held that the provision (section 497) is for the beneficial interest of women. It only punishes an outsider, who invades the matrimonial sanctity.
In 2018 in the case of Joseph Shine vs. Union of India, Supreme Court held adultery unconstitutional, because section 497 was arbitrary, irrational and it violates Article 14 of the Indian constitution. The issues discussed in the case are, the first issue is that, the offence committed only by a man who had sexual intercourse with the wife of another man is being discussed and women cannot be punished as an abettor under the section, instead man is considered to be a seducer. The second issue is that only the husband could complain against adultery, adulterous man’s wife had no such right. Under section 198 of crpc it only gives power to husband to give complaint against adultery on his absence whoever is taking care of the wife can file the complaint, wife is not considered as an aggrieved person under section 198. The third issue in the case is that if the adultery is done by the consent of the husband then it is not considered as an offence under section 497 if IPC.
The section 497 of IPC does not protect the sanctity of marriage and it only protects the proprietary rights of the husband. Thus in this case the former chief justice Dipak Misra held adultery as unconstitutional.
Now in India adultery is not considered as a crime. The landmark judgement in joseph shines case held adultery as unconstitutional and decriminalized adultery. The court only decriminalized the act but it is still a ground for divorce. Changes are the need of the hour thus the changes in adultery also one among them .the changes in adultery not only decriminalized the act but also made a significant step towards equality.