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This document delves into the legal and social aspects of adultery, exploring its definition, historical context, and legal implications in various jurisdictions. It examines the evolution of adultery laws, particularly in india, and analyzes the rationale behind its criminalization. The document also discusses the social stigma associated with adultery and its impact on marital relationships.
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CONSTITUTIONAL LAW- I
DECLARATION I SUSHMITS SAHOO studying BBA LLB(H) 3rd^ semester student of SOA NATIONAL INSTITUTE OF LAW herby declare that my project on topic “Adultery – A Conceptual and Legal Analysis ” has been carried out by my own efforts and not been copied and facts arrived by my own observation and knowledge under the guidance of my subject faculty MS.SHREEM THITE. NAME OF THE STUDENT NAME OF THE FACULTY MS.SUSHMITA SAHOO MS.SHREEM THITE ACKNOWLEDEGMENT
Abstract Legal analysis of regulation of adulterous behavior of married person under different legal systems portrait that the provision of adultery is much influenced by the social values of ‘sexual morality’ existed at the moment of formulating the legal provision. In India too, S. 497 of IPC had been drafted before 150 years during colonial period and since from its inception it has been whirling into debatable controversies on several accounts such as its gender bias approach, reflecting cultural conflicts, questioning equality clause and strong arguments have been raised either for its retention, modification, or complete deletion from penal statutes. This article has attempted to articulate these controversies from legal point of view in contemporary India. This article attempted to analyze the ‘adultery’ from its legal conceptual base and proceed to examine its effect, impact and co-relation with other aspects such as marital tie, property claims, over the progeny, remarriage and divorce. The philosophy, object and justification of legal regulation of adulterous behavior of a person in society has been examined on time scale so as to make appraisal whether its retention, modification or deletion is indispensable in present context or otherwise. The article ends with addressing the question of legal dilemma that whether the legal regulation of adultery is still relevant, and if yes, too what extent? The conclusion in this respect is self-explanatory. 1.1.Introduction Adultery, in its literal sense, has been defined as a consensual physical association between two individuals who are not married to each other and either or both are married to someone else having living spouse. The actual definition of adultery may vary in different jurisdictions but the basic theme is sexual relations outside marital wed-lock. Adultery, also known as ‘infidelity’ or ‘extra-marital affair’, is certainly a moral crime and is thought-out a sin by almost all religions. There is however, difference in the literal, social and legal definitions.The dictionary meaning of ‘adultery’ connotes voluntary sexual intercourse of a married person other than his or her spouse. Thus, the dictionary meaning of ‘adultery’ signifies gender neutrality and it may be committed by either of any sex. It proposes three conditions for commission of ‘adulterous’ act by the person when– (i) He or she has a sexual intercourse with opposite sex (ii) Either one or both of them are having living spouse and knowledge about it. (iii) Such sexual intercourse is voluntarily committed
relationship between opposite sexes. This permission or prohibition by socio-religions approval form the basis of ‘marriage institution ’, and any relationship out of marital wed- lock has attracted socio-religious sanctions. Values those governing sexual morality not only prohibited the ‘adulterous’ behavior of married person, but other act such as homosexuality, lesbian, incent, relationship had also been prohibited. Beside the same, the sadomy, bestiality and other format of sexual behavior were neither openly recognized nor gives rise to any social bondage. Despite there are evidence that such relations did exist in history, but it did not have any social sanction as such. Even in the religion, which used to provide the justification, legitimacy and political backing only permit heterosexuality that gives rise to procurement of children. The underline philosophy of such normative pattern was depends upon the continuation of society and procurement of children, which ensure the coming up of next generation on the earth. It was a philosophical notion that only the heterosexuality and carnal sex secure the possible outcome of children, only such relationship and sexual orientation was permitted in the society. Therefore, any sexual orientation, formation, expression and bondage, which did not have any guarantee of procurement of children, were prohibited and there was even the punishment inflicted for such behavior. But the extent of such prohibition and punishment prescribe varied as per the values and norms governing the sexual morality in the society. Different societies display the different degree of social morality which differ and had correlation with the total sum of morality traits. Thus different society has varying pattern of sexual morality. Adultery, as understood in known history of human civilization, was also prohibited as it directly threat the marital bondage invaded by stranger. Therefore, adultery is also observed to be relative phenomenon depends upon the values governing the sexual morality in the society. It has also been governed differently in different society. In Europe, most of the nations only considered it as civil wrong and only concern of affected individual family, and not of the ‘State’. But in India, adultery is punishable offence. In most of the African countries tribes have open sex pattern and ‘adultery’ has not been considered as socially prohibited act. There works the different form of ‘sexual morality’. Even in most of the tribes those mostly reflect matriarchal family, the concept of ‘adultery’ is altogether invisible. 1.3. Adultery – Ancient to recent
Though the modern trend is to have liberal approach for 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. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed and man was not heavily punished. In ancient Greece and Roman world, there were harsh laws against adultery but these were applicable only if the female was married. But these laws were not relevant if a man maintained sexual relationship with a slave or an unmarried female. The Bible too forbids adultery and the seventh commandment clearly states this. In customary Judaism, both the parties were equally responsible for adultery but it applied only if the female partner was married. Lord Jesus also abhorred adultery and considered that even looking at a female lustfully is equivalent to adultery. According to ancient Hindu laws, only the felonious female were punished & killed while the husbands were considered equal to god and were left off with warnings only. The legal definition of adultery varies from country to country. Laws related to adultery vary from statute to statute and at some places adultery is considered a crime and the adulterer may even have to face death penalty while at some places it is not punishable. In few statutes, if either individual is married to someone else, both parties to an adulterous liaison are culpable to the crime. Christian, Jewish, Islamic and Hindu traditions condemn the act of adultery and in Islam; the adulterers especially the female may be stoned to death. Law must keep pace with changing social needs. Law relating to adultery in other countries is different from India.7 In the United States of America, the law relating to adultery differs from one State to another. A careful perusal of the law relating to criminal adultery prevailing in different States in the United States revealed that three major formulations of adultery exist under State laws in the United States, viz. (i) the common law view (the law of a country or State based on custom, usage, and the decision of the law Courts, technically referred to as the English legal system); (ii) the canon (a law or body of laws of a church); (iii) the hybrid view.
This is to be noted down that adultery shall be put on different aspects of criminal behavior than other crime mentioned under the penal statutes. Adultery does not have the grave effect on the society, or rather it does not pose threat to the peaceful existence of society as in the other cases of crime such as murder, dacoit, theft, grievous hurt, public tranquility, defamation, rape etc,. The similar is the thing about the punishment for adultery. It can be argued that the punishment to the person committing adultery is not and cannot be a remedy for a person aggrieved of adultery. The object of prosecution for adultery is more often to reach a settlement with the offender at the mercenary level and seldom to send the offender to jail. In fact this was the very reason why the offence of adultery did not figure in the very first draft. To this extent, the conditions are not appreciably different even today. The existence of Section 497 has no apparent affect on society. Acknowledging this most western countries have decriminalised adultery. It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most of our laws.11 In the United States, in those states where adultery is still on the statute books, offenders are rarely prosecuted. However, it still remains part of discussion in this research paper that whether adultery shall be made punishable at all in 21st century or it shall be dealt in the like manner such as other western countries by decrimnalising it. Historically in India, ‘adultery’ had been considered as an anti-social activity and prohibited by law. However, the concept and understanding about the adultery in ancient period and modern period is little bit different, and punishment also differs. The ancient code of Manu merely provided for varying range of punishments for offence of adultery ranging from simple repentance to the ghastly burning of the offender. From the Manu’s thought it enough for a high cast man committing this offence with law caste woman to repent, it is reasonable to conclude that in Manu's views adultery is not per se an offence involving moral depravity. Hindu Matrimonial Laws do not make a single act of adultery as valid ground for granting divorce.12 Thus according to Manu, the relationship of upper caste man with lower caste woman is not adultery, but adverse was the case of adultery. 1.6. “Adultery” in India – Origin and development It is pertinent to note that the original draft of IPC prepared by first Law Commission was silent about the offence of ‘adultery’. Lord Macaulay, who was unwilling to add the provision criminisling the adultery as an offence, observed, "There are some peculiarities in
the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives."14 The basic objective of keeping ‘adultery’ out of the penal statute was the social norms which has already provided the values and norms which take care of such instances. The circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury. Thus, framers of the Code did not include adultery as a crime; it was only after the recommendation of the Second Law Commission it was added to the Code. Thus, it is on the record that the framers of the Code did not make adultery an offence punishable under the Code. But the Second Law Commission, after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. The Second Law Commission thought otherwise and said it would not be proper to leave the offence out of the IPC and suggested that only the man be punished, again keeping in mind the condition of women in the country. The argument given that why the wife would not be punished has been provided as follows : — “Though we well know that the dearest interests of the human race are closely connected with the chastity of woman and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is, unhappily, very different from that of the women of England and France; they are married while still children; they are often neglected for other wives while still young. They share the attention of a husband with several rivals. to make laws for punishing the inconsistency of the wife, while the law admits the privilege of the husband to fill his ‘zenana’ with woman, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain, operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale, already too much depressed, the additional weight of penal law.” Thus, in India, a wife is not punished as an adulteress or an abettor for the offence of adultery. It is only the man who has such unlawful sexual intercourse with married woman will be punished under S. 497, I.P.C. Moreover, the wife of the adulterer has no locus standi
the offence of adultery should remain in the Penal Code. It is accordingly recommended that the section may be revised, as follows : ‘497. Adultery.— If a man has sexual intercourse with a woman 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, the man and woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description of a term which may extend to two years, or with fine, or with both. Thus the proposal of Law Commission is to bring the section of the line of gender neutrality without discriminating the two different sexes and making them criminally liable in equal degree. However, the Law Commission had proposed the lesser degree of punishment. 1.7. Jurisprudential analysis of ‘Adultery’ In order to understand the true nature of ‘adultery’ it is essential to understand the modality of legislative framework. There are certain clues which can be gathered to understand the true nature of offence. The first clue to understand the offence of ‘adultery’ under Indian Penal Code may be got by ‘heading’ of the chapter under which it has been placed. It has been placed under Chapter XX of the IPC describing ‘Of offences relating to marriage’. Thus the four sections 494 to 498 (including 498A) are related with marriage. Thus, the close scrutiny of these provisions clearly revealed that the provisions are so drafted to preserve the sanctity of marriage institution. May it be bigamy, adultery, cruelty or criminal abduction of wife, all provisions are drafted keeping central theme in the mind focusing the marriage institution, it preservation, protection and promotion of harmony. Society abhors marital infidelity. The object of Section 497 of the IPC is to preserve the sanctity of marriage. The following points will help to understand the different facets of provision relating to ‘adultery’ under the law.. 1.8. Adultery as an offence – object of The object of the provision relating to ‘adultery’ under the principle penal legislation of India25 shows clear departure from the known principles of criminal law, and cannot be understood its basic object on general principles of criminal law. As well known presumption under criminal law, the law punishes to the person who, with guilty mind involve in the criminal act. However, S. 497 clearly provide immunity to the wife despite she portraits to be actively involved in ‘adulterous’ act. The provision relating to ‘adultery’ has
been so drafted to provide protection to family as an institution, protection of woman from dominated class and prevent any damage to either spouse due to the ‘adultery’ which has already hampered the ‘faith’ amongst them. In V. Revathi case Apex Court had an occasion to express its view about the object of penal provision of ‘adultery’. First of all, it has to be understood that S. 497 on ‘adultery’ is shield to defend, not sward to tear off the marital relationship. It does not provide any of the spouses to use it as a sward to settle account against each other. Therefore, the law relating to ‘adultery’ under Indian Penal Code has been drafted and designed in such at way 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 wife are disabled from striking each other with the weapon of criminal law.27 The basic object of the S. 497 of IPC is to promote the interest of marriage institution. S. 497 of the IPC, 1860 does not enable either Husband or wife to send each other to jail. Another probable object of provision on ‘adultery’ in its present form u/s 497 has been designed to protect the interest of the children. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law. Yet another object underline the offence of ‘Adultery’ and not punishing woman but still existed in the code because at the time when the law was enacted, polygamy was deeply rooted in the society and woman shared the attention of their husbands with several other wives and extramarital relations. Woman was 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 Man from having sexual relations with the wives of other man and at the same time to restrict their extra marital relations to unmarried women alone.30 However, this presumption though sounds popular and rational does not stand on the sociopolitical test. It is hardly difficult to believe that existence of polygamy and victimization of woman during the period of 1860 would have influenced the legislation to safeguard the woman by providing her
not by the woman. As it stands, this section makes only man criminally held liable who commits sexual intercourse with the wife of other man without the consent of her husband and such act has been punishable and woman cannot be punished even as abettor. Thus the offence cannot be leveled against the woman. Secondly, such offence must be committed by the offender with the knowledge or with any reason to believe that the woman with whom he is undergoing a sexual intercourse is the wife of another man. In short, the offence has been committed while the marriage of the woman with whom the sexual relationship has been established shall be in force. Thirdly, the consent of the wife shall be free and without any force. In case the consent of the wife is not free consent, it will amount to be a rape, which is more serious. Fourthly the section has demarcated that who can prosecute and who can be prosecuted. Under S. 497, only the husband of the wife who has been involved in adulterous act can only file complaint and only against the adulterous. The section also protects the wife against adulterous act and complete protection under the section. In short, the S. 497 of the IPC cover only the sexual intercourse that took place with the woman whose marriage has been alive and the consented sexual intercourse of her with the person other than her husband. S. 497 are therefore not applicable in several circumstances. First, if the sexual intercourse has not been taken place, the ingredient of S. 497 cannot be got completed. Secondly, if the adulterous man successfully raise the plea of innocence about the marriage. Thirdly, if he has been safeguarded by any of the general exceptions and he may raise the plea to get free from the criminal liability so imposed. It shall be noted down that there are similar kinds of sexual offences which forms the species but different in its aspects and context than S. 497. A few offences may be quoted here as a example such as, S. 376, S. 494, S. 354. However, despite these offences may also involve the sexual intercourse out of marital wedlock the offences of adultery is altogether different than these offences. The first difference that demarcates the line between S. 497 and these offences is the ingredient of the “consent” of the woman. In all other sections except, S. 497, the woman does not have a consenting party.33 However, u/s 497, consent of the woman is very important. If the woman does not consent for the sexual intercourse, such act will be of forceful sexual intercourse without the consent of the woman, and thus amount to a rape. The exception is only with respect to the wife above the age of 16 years.3 In case of the wife below 16 years of age, even unconsented sexual intercourse with her husband also amount to
rape, but above 16 years age, it does not amount to be rape. In case of S. 454 & S. 494 the former speaks about the ‘outraging the modesty of women and latter speaks about the bigamy. S. 454 happens in case the woman has not been given consent. While S. 494, even the though the consent of the woman is there, there must be a marriage of both the parties while the earlier marriage is still alive and not been terminated. Again, in case of S. 354 & S. 376, the state is the aggrieved party and anybody can file an FIR and take cognizance. While S. 494 or S. 497 is initiated only on the complaint of the complainant who is generally the husband of the wife. There is interesting case in hand which differentiate the different between S. 497 and S. 376. In Chemon Garo v. Emperor35 the original case had been filed u/s S. 376 and prosecuted the accused for committing the rape with married woman. However, during trial, it has been revealed by the evidences that woman was the consenting party in the offence, and thus instead of punishing the accuse u/s 376, the Session Court punished the accused of S. 497 for adultery. In High Court accuse had raised the plea of procedural lacuna, as the case was instituted u/s 376 and not u/s 497. Thus, the formal “complaint” had not been lodged by the husband as required u/s 497 and S. 199 of the Cr.P.C. the Prinsep and Stephen, JJ. set aside the conviction of the accuse as without jurisdiction. Court observed- “…..the circumstances of his (the husband's) appearing as a witness in the prosecution of that offence can be regarded as amounting to the institution of a complaint for adultery in the sense of Section 478.36 The expression 'complaint' is a perfectly wellunderstood one, and Section 142 of the Criminal Procedure Code (of 1872) in terms prohibits a Magistrate from taking cognizance of' a case without complaint when it falls under Chapter XX of the Penal Code within which is included Section 497. It by no means follows, as a necessary consequence, that because a husband may wish to punish a person, who has committed a rape upon his wife, that is, who has had connection with her against her consent, he will desire to continue proceedings when it turns out she has been a willing and consenting party to the act. At any rate, if a criminal charge of adultery is to be preferred, a formal complaint of that offence must be instituted in the manner provided by law, and if it is not, Section 478 (Section 199 of the Code of 1898) will not have been satisfied.” Thus, S. 497 stands totally on different footing and neither all sexual offences between opposite sex fall under this section, not this section attract in all the cases of consented sexual relation. It only attract when a woman or man has sexual intercourse with outsider than their
the scope of S. 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. Thus, S. 198(2) is not vulnerable to the charge of hostile discrimination against a woman. The second basic ideology that influenced the drafting of provision of adultery in Indian Penal Code is protective approach. The circumstance in which the penal code was drafted in India was the period when society was made dominated and law used to look the woman as a section of society that is victimize under made dominance. Thus the offences related to sexual crimes are mostly underline this ideology that woman is always victimize by man. Therefore, in the cases of adultery, there is no surprise that law would have looked wife as a victim and awarding punishment to her would otherwise means victimization followed by punishment. The contemplation of the law43 evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime. Another possible rational that tempted draftsman to free the ‘woman in general and wife in particular’ from the offence of adultery would be the scientific and social presumption in favour of woman in cases of sexual activities. Man and woman are biologically different and both face different biological consequences of sexual intercourse. While there are hardly any express changes occour in man, the sexual intercourse would possibly leads in pregnancy to the woman.45 Pregnancy obligated by stranger out of marital tie or by the person other than husband stick social stigma to the woman. This is the underline approach that has shaped the ‘sexual morality’ as a high standard for woman. Therefore, there are two standards of ‘sexual morality’ applicable differently and separately for man and woman in society. Society always attaches social stigma to woman if she finds involve in sexual offence and this is probably very strong reason of her exploitation in society, especially in sexual offences. Therefore, when the penal sanctions has been drafted with regards to sexual offences in general and ‘adultery’ in particular, woman in general and wife in particular were accorded protection by law as they were treated as victim as sexual relationship offend her body and reputation adversely and legal punishment will add injustice to the insult already inflicted upon her. In general, the woman has to face social stigma, and her image tainted upon any sexual offences proved against her. Thus, even if it would have been discovered that she was partner in pre- marital relationship or extra-marital relationship she used to face social humiliation and embarrassment. The legal immunity, to some extent, would at least save her from further embarrassment. Therefore, the provision which in its effect permits only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the adulterer to do so.
In the light of above context, be it realized that S. 497, 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. The offence of adultery as defined in S. 497, is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. The object of the law is to inflict punishment on those who interferes with the sacred relation of marriage, and the legislature as well considers it to be an offence one who interferes in the sacred matrimonial home. 1.15. Whether S. 497 is still relevant? The circumstances in which the provision of adultery had been crafted out in India has been undergone a sea change. Today, neither there is a traditional custom of keeping one’s wife as a bonded labour prevails at present time nor the magnitude of male dominance do exist at present.90 Over the years polygamy has become illegal while monogamy has become prevalent. The period when the principal penal law of Indian had been drafted, there were hardly any effective personal codified laws were in existence. However, as compare to that period today the personal laws are equal, operative, effective and efficient. This can be evident that the definition of adultery in matrimonial laws is much wider in scope that the definition of adultery as a crime. Today, polygamy is appeared to be exceptional and have greater disadvantages. To practice polygamy or have extramarital relationships without attracting civil action is almost impossible. Women have begun to establish their own identity in the society and are no more treated merely as their husbands’ chattel. Therefore, with growing awareness of women about their rights, better laws to their rescue, it can be conveniently being said that there are no reasons to retain adultery as an offence in the penal code.91 Our personal laws are sufficient to take care of adultery as a civil wrong. Apart from the legal analysis, if the law is to be designed on the basis of social reality, let us have a content analysis of present entertainment media. TV serials, films, Page3 items of the newspapers, magazines of media and actual lifestyle of the metros, and every walk of life,
