Adultery: India

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This is a collection of articles archived for the excellence of their content.


Historial overview

The Times of India, Jul 17 2015

Manoj Mitta

Wife is private property, so no trespassing

India has criminalized only one form of adultery: extramarital sex by the wife. Her lover can be jailed up to five years

When Lord Macaulay did the first draft of the Indian Penal Code (IPC) in 1837, adultery was very much recognized as a crime in England and France. Yet, he chose to keep adultery out of his draft because of the polygamy then prevalent among Hindus and Muslims in India. “To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt,“ Macaulay wrote.A decade later, those who worked further on the draft IPC did not think it advisable to exclude adultery from it even as they relied on Macaulay's note to exempt women from punishment for it. “In deference to it, we would render the male offender alone liable to punishment,“ the colonial law commissioners recorded in 1847. Though most liberal democracies have since decriminalized adultery, India is still stuck with Section 497 IPC, exactly as it was enacted in 1860 against the backdrop of pervasive polygamy . The Victorian legacy remains even after the constitutionality of this discriminatory provision was challenged successively before the Supreme Court by both sides of the gender divide. The first time the Supreme Court upheld Section 497 was in 1954, a year before the abolition of polygamy for Hindus, and it happened to be on a challenge filed by a Muslim husband.

History: Why it was enacted in 1860

Dhananjay Mahapatra, September 28, 2018: The Times of India

Why it was enacted in 1860, why it had to go now

Justice Rohinton F Nariman said almost all ancient civilisations punished the “sin of adultery” and Hammurabi’s Code of 1754 BC prescribed death by drowning as punishment for the offence, be it by the wife or the husband.

“In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment — thou shalt not commit adultery — set out in the book of Exodus in the Old Testament. Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress,” he said.

“In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St Paul’s letter to the Corinthians. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words let him who has not sinned cast the first stone,” he added.

In India, too, Manusmriti provided for punishment for those addicted to intercourse with other men’s wives “by punishment which cause terror, followed by banishment”, Justice Nariman said. “The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman. However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a Vedic scholar, for three years,” he added.

“In Islam, in An-Nur, namely Chapter 24 of the Quran, Verse 2 reads as follows, ‘The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe Allah and the last day, and let a party of believers witness their chastisement’,” he said.

Justice Nariman said in 17th century England, adultery was only a ground for divorce but became a capital offence in Cromwell’s puritanical England in 1650, which was nullified as soon as King Charles II came back to restore monarchy. He said in the first draft of IPC by Lord Macaulay, he had refused to make adultery a penal offence.

Narrating the adultery scenario in India, Justice Nariman said, “The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955.

“It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the ‘Hindu Code’, so to speak, a Hindu man can marry only one wife, and adultery has been made a ground for divorce in Hindu law.”

No licence to cheat

Yusuf Abdul Aziz had no issue with the stipulation that only the husband could invoke the adultery law.His grievance was that the male offender alone -the wife's lover -was liable to be punished for adultery (with imprisonment up to five years) while the wife could not be prosecuted even as an abettor. Insofar as the Constitution was concerned, the bone of contention was Article 15(3) which clarified that the equality guarantee did not prevent the state from “making any special provision for women“. Aziz had argued that Article 15(3) “should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes“. Speaking through Justice Vivian Bose, the apex court ruled that it was “unable to read any such restriction“ into Article 15(3). At the same time, it disagreed that the prohibition in Section 497 on punishment for women was “tantamount to a licence to commit the offence“.

Since Aziz's challenge was limited to the clause exempting the wife from punishment, Bose never got to examine the deeper flaws of Section 497 which, regardless of Macaulay's pious intention, ends up reinforcing the patriarchal notion that the wife is the property of her husband and therefore has no cor responding rights. The Law Commission could well have ad dressed this fundamental problem with Section 497 when it reviewed the IPC in 1971. But, reflecting Aziz's male perspective, all it did was to recommend the deletion of the clause exempting the wife from punishment for adultery . Anna Chandi, the only female member in that commission, wrote a note of dissent pointing out that the deletion of that exemption would not cause any damage to the basic idea of the wife being the property of the husband.Instead, a new dimension would be added to it, as Chandi said, “by making not only the trespasser but the property also liable to punishment“.

Romantic paternalism

But the Supreme Court again upheld Section 497 in 1985, this time rejecting the challenge mounted by a woman echoing Chandi's critique.Sowmithri Vishnu had argued that though Section 497 might seem to be gender-sensitive, it actually contained “a kind of romantic paternalism, which stems from the assumption that women, like chattels, are the property of men“. The judgment authored by Chief Justice Y V Chandrachud held: “These contentions have a strong emotive appeal but they have no valid legal basis to rest upon.“ This is the cursory manner in which it rejected each of the three legal objections raised by Vishnu.

While empowering the husband to prosecute the adulterer , Section 497 does not give any right to the wife to prosecute the woman with whom her husband has committed adultery. The SC said: “It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately .“

Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery.Since the offence of adultery as defined in that section could only be committed by a man and since it provided expressly that the wife could not be prosecuted even as an abettor, the Supreme Court said: “No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery .“ Section 497 gives a licence to the husband to have sexual relationships with unmarried women. “The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another,“ the apex court said. As for the petitioner's contention that women too, whether married or not, could wreck the matrimonial homes of others, the court shrugged it off saying, “We hope this is not too right but an under-inclusive definition is not necessarily discriminatory.“ It added rather gratuitously that the demand for including the husband's sexual relationship with an unmarried woman in the definition of adultery was “a crusade by a woman against a woman“.

Skewed law

Whatever its deficiencies, the Supreme Court verdict in Sowmithri Vishnu's case is, as of now, the last word on the skewed criminal provision against adultery . Though the erring spouses have no remedy against each other in Section 497 IPC, each one has a remedy against the other under the civil law, for divorce on the ground of adultery .Besides, adultery under the civil law takes in all possible scenarios.The adultery factor plays a role in determining custody and alimony issues as well. Given the options available in the civil law, it's high time India followed the example of advanced countries in doing away with the notion of criminalizing consensual sex between adults as a measure of protecting the sanctity of marriage. This is exactly what was suggested in 2006 by the National Commission of Women in preference to the alternative of making the criminal provision more gender neutral. Macaulay was right in disfavouring a criminal provision against adultery , even if it was for reasons that have little to do with today's India.

The global position, 1857-2015

i) Adultery and the law: The global position, 1857-2015;
ii) Acceptability of adultery in Pakistan, China and other countries
From: September 28, 2018: The Times of India

See graphic:

i) Adultery and the law: The global position, 1857-2015;
ii) Acceptability of adultery in Pakistan, China and other countries

Elopement, extra-marital

HC asks man to pay police for elopement

Saeed.Khan , April 20, 2022: The Times of India

Ahmedabad: The perils of making the police sweat are no less than the pitfalls of extra-marital elopement, as a married man learnt to his cost seven months after running away with a 20-year-old woman. The Gujarat high court on Tuesday directed the man to reimburse 50% of the Rs 1. 17 lakh spent by the state government over exactly 17,710 hours to trace the woman since her father reported her missing.

Raghabhai Parmar, who eloped with the woman from Rajkot last year, risks contempt of court if he doesn’t deposit Rs 55,000 with the HC registry within the stipulated time. The amount will go into the Police Welfare Fund.

The woman’s father had approached the HC soon after she disappeared. After she was traced seven months later, the father claimed damages from Parmar, saying he incurred expenses totalling Rs 8 lakh in trying to find his daughter’s whereabouts. The judge permitted him to approach the appropriate court for this, his lawyer Nirav Sanghavi.

On Rajkot police incurring considerable expenses, the court accepted the submission that the department spent Rs 42,500 on the investigation and nearly Rs 75,000 in judicial costs, including ar- rangements for all sides to be present at hearings. The court mentioned that Parmar being directed to pay the police half of what they spent was also a penalty for eloping with and “exploiting” a woman despite him being already married.

The HC had earlier asked the government whether the public at large could be intimated about Parmar’s case so that any similar indiscretions by him could be brought to light. Parmar’s counsel said his client obtained “customary divorce” before the elopement, but the HC questioned the veracity of the claim.

Superior courts' judgements, views

Law biased against married men?

Dhananjay Mahapatra, December 9, 2017: The Times of India

Why punish married men alone for adultery, asks SC

The Supreme Court agreed to examine the constitutional validity of a 157-year-old “gender discriminatory” provision in the Indian Penal Code that punishes a married man for adultery for having consensual sexual relations with another man’s wife but spares women in extra-marital relationships.

Saying a closer look at the issue was required, a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said, “Prima facie, on perusal of Section 497 of the Indian Penal Code, we find it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption.”

Clean chit to woman made SC examine law

Ordinarily, criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, the bench said.

Section 497 states, “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.”

The bench noted that while the woman was an equal partner to the offence under IPC Section 497, she was not held guilty or at par with the adulterous man and felt a closer examination of the issue was required.

The judges acknowledged that the provision was prima facie “archaic” and gave the Centre four weeks to respond to a PIL by Joseph Shine from Kerala, who lives in Trento, Italy, on why a married man alone, and not the consenting wife of another, should be hauled up.

What persuaded the SC to examine the constitutional validity of the archaic provision was the clean chit given to the woman, irrespective of her role in the adulterous relationship, as also counsel Kaleeswaram Raj’s argument that as per Section 497, no offence of adultery was committed if there were consensual sexual relations between an unmarried man and an unmarried woman, an unmarried man and a married woman; and between a married man and an unmarried woman.

The apex court spotted another aberration in Section 497 as well — the one which provides that it is not adultery if a married man has a sexual relationship with a married woman with her husband’s consent or connivance. The bench wondered whether this would not amount to treating a woman as her husband’s commodity to such an extent that his consent would nullify what would otherwise be an offence under the IPC.

The bench said, “It is perceivable from the language employed in the section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status.”

A time has come when society must realise that a woman is equal to a man... This provision... appears to be quite archaic. When society progresses and rights are conferred, new generation of thoughts spring... we are inclined to issue notice — SC BENCH

SC: Punishing only men flouts right to equality

Dhananjay Mahapatra, SC: Punishing only men for adultery flouts right to equality, August 2, 2018: The Times of India

A five-judge bench of the Supreme Court said on Wednesday that making only men liable for punishment for the offence of adultery appeared to violate the right to equality before law under Article 14 of the Constitution.

Commencing hearing on a PIL by Joseph Shine, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra initially contemplated referring it to a seven-judge bench but decided to continue. The petitioner’s counsel, Kaleeswaram Raj, said a four-judge SC bench had in 1954 upheld the validity of Section 497 on the ground that Article 15 permitted special laws for women and children.

‘Section 497 treats women as chattel of their husbands’

He said in today’s time it was inconceivable that a man having intercourse with another woman without her husband’s consent or connivance would be prosecuted and face a jail term of up to five years, while the woman, despite being an equal partner in the crime, would go scot free.

Appearing for NGO Partners for Law in Development, senior advocate Meenakshi Arora said Section 497, which makes adultery a crime for men, must be struck down because it treats women as chattel of their husbands by providing that it is not adultery if a man has intercourse with a woman with the consent of her husband.

The CJI-led bench said, “If adultery gets scrapped as a crime for violating Article 14, then no one, neither the man nor the woman, will be punished. Adultery can be ground for divorce and other civil consequences.” The hearing will continue.

The Centre, in its affidavit, has argued that decriminalising Section 497 of the Indian Penal Code (IPC), which punishes only a man for adultery, would wreak havoc to the institution of marriage. It said: “Striking down of the provision would be tantamount to decriminalising the offence of adultery, thereby eroding the sanctity of marriage and the fabric of society at large.”

 SC rejects govt’s plea to make law gender neutral

Dhananjay Mahapatra, SC rejects govt’s plea to make adultery law gender neutral, August 9, 2018: The Times of India

Act Consensual, Can’t Be Categorised As Public Wrong, Says Court

The Supreme Court rejected the Centre’s plea to make Section 497 of IPC, which punishes only a married man for adultery while absolving the woman, gender neutral to punish both men and women if they strayed from marriage.

Appearing for the Centre, additional solicitor general Pinky Anand said, “Adultery is a public wrong which harms an important social institution in marriage as well as wife and children, and hence can be classified as a public wrong. If the provision appears discriminatory then it can be read down to make it gender neutral so that both men and women can be punished for adultery.”

But a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandracud and Indu Malhotra said: “Gender neutrality cannot make adultery an offence as the act is consensual. It may have civil remedies like being a ground for divorce but it cannot be categorised as public wrong as none of the consenting married adults accused of adultery complain that any one of them has been abused. Making it gender neutral would result in gymnastics.”

Anand said the court could read down the provision for public good if it found Section 497 discriminatory as it provided that no offence of adultery was committed if a married man had sexual relationship with another married woman with the consent or connivance of her husband.

Before reserving verdict on a PIL by Joseph Shine, the bench said: “We will strike it down and if the legislature feels public good will be served by making adultery offence gender neutral, it was free to do so.” Justice Nariman said: “The heart of the provision is that a cuckold husband can lodge a complaint against the paramour of his wife because he thinks his wife is his property.”

The CJI asked since adultery was a consensual act, why should it be a crime. “It is like calling a person for dinner and then getting him booked for house trespass,” he said.

CJI Misra and Justice Chandrachud said: “Adultery may not be the cause for a broken marriage but a consequence thereof. Many a time, a party to a marriage wants divorce after a marriage has broken down, but the case goes on for years in the court. If the woman finds solace, love and affection in another man, should that man be booked for adultery by her estranged husband just because the marriage has not been annulled through divorce?”

Photos not enough to prove adultery: Gujarat HC

Dec 5, 2022: The Times of India

AHMEDABAD: In an observation regarding the allegations of adultery, the Gujarat high court has said that by supplying mere photographs a man cannot prove that his wife is leading an adulterous life.

The man produced photographs of his wife before the HC to claim that she is in an adulterous relationship and therefore not entitled to maintenance. Justice Umesh Trivedi said: “The allegation against the respondent that she leads adulterous life is required to be proved by leading cogent evidence before the court and production of mere photographs, that too, before this court will not suffice to assert that she leads adulterous life, and therefore, she is not entitled for maintenance. ” In this case, the womanhad approached a family court in Ahmedabad and sought interim maintenance for herself and her daughters.

The family court on June 14 ordered the husband to pay them Rs 30,000 every month.

The husband approached the HC and challenged the maintenance order, asserting that his wife is leading an adulterous life and hence the family court cannot grant interim maintenance. He also supplied his income tax returns to say that his income was not enough to pay Rs 30,000 to his wife every month.

In reply, the wife supplied documents such as photographs of luxury cars, their registration certificates, and properties owned by the husband. She told the court that he also owns 150 autorickshaws and earns from their rent. Besides, the woman produced documents showing that her husband works as an agent at the RTO and runs a finance firm in the name of Umiya Automobiles.

After hearing the submissions, the HC on November 29 dismissed the husband’s challenge to the maintenance order.

'A few lapses are not adultery’

The Times of India, Oct 11 2015

Gujarat court says a few lapses not adultery, HC backs it 

The Gujarat high court has upheld a lower court's definition of adultery, where it said that a couple of lapses in behaviour, if they are unwitting, cannot be called adultery.However, a singular premeditated act of sexual intercourse by one spouse with another person would be adultery . The HC upheld these observations while refusing maintenance to a wife, who admittedly was found living an adulterous life. The court also upheld the payment of maintenance to a minor child by his father, but not to the wife because she was in a relationship with a third person. This case is from Patan district. The woman unsuccessfully moved a magisterial court for alimony according to the provisions of section 125 of the CrPC.

She then approached a sessions court, which also denied her maintenance. In its order, the sessions court said: “One or two lapses or an occasional incident may be condoned, provided that they are unwitting.Sometimes, a situation arises whereupon, even without design or thought in mind, a young person may indulge in an intimate act. But an act of sexual intercourse by a spouse with another person, predetermined or preconceptualized, even if it is a singular act, would be adultery .“

The Supreme Court’s verdicts

2018: Adultery decriminalised, but still a ground for divorce

Dhananjay Mahapatra, Adultery No Longer A Criminal Affair, September 28, 2018: The Times of India

After Decriminalising Homosexuality, Another Historic Verdict That Takes Law Out Of Bedroom

SC: Husband Not Master Of The Woman

The Supreme Court struck down as unconstitutional the 158-year-old Section 497 of IPC that punished a married man for adultery if he had sexual relations with a married woman “without the consent or connivance of her husband”, but said adultery could continue to be a ground for divorce.

“When parties to a marriage lose their moral commitment to the relationship, it creates a dent in the marriage and it will depend upon the parties how to deal with the situation. Some may exonerate and live together and some may seek divorce... A punishment is unlikely to establish commitment,” a bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu

Malhotra said, rebutting the argument that Section 497 worked as a deterrent against spouses going astray.

While saying that adultery could continue to be a ground for aggrieved spouses to seek divorce, the court said if one of the spouses committed suicide because of the adulterous nature of her/his partner, then the culprit could be proceeded against for the criminal offence of abetting suicide.

The Supreme Court tested Section 497 against the touchstone of constitutional provisions dealing with the right to equality and guarantees against arbitrariness and discrimination, with Justices Chandrachud and Malhotra using privacy, an individual’s autonomy and personal choice as yardsticks of legality.

The decision rejected the idea of women as actors with no agency of their own, mere “chattel”. Thursday’s decision puts India on a par with many European countries, China, Japan, Australia and Brazil where adultery is not a criminal offence.

The Chief Justice, writing the judgment for himself and Justice Khanwilkar, said Section 497 violated the right to equality as it punished only the married man while exonerating the ‘partner in crime’, the married woman, who could not be punished for being the abettor.

The section also treated the woman, with whom the married man had sexual intercourse, as a chattel of her husband as it was not an offence of adultery if the latter consented or connived for his wife’s adulterous relationship, the CJI said.

There can’t be husband’s monarchy over wife: CJI

Moreover, the provision specifying that only the husband of the married woman could be the aggrieved person to file complaint of adultery against the adulterous married man made the SC say, “The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with life as he likes which is extremely excessive and disproportionate.”

“That women are treated as subordinate to men inasmuch as it lays down that there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted (in 1860),” the CJI said.

Hoping to bring about a change in the societal mindset, CJI Misra said, “We are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over wife. That apart, there cannot be a community exposition of masculine dominance.”

Justice Nariman rescinded Section 497 because it said it was not adultery if the married woman’s husband approved her adulterous relationship with another married man. “This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the ‘licensor’, namely the husband, no offence is committed,” he said.

“This archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day utterly irrational. On this basis alone, the law deserves to be struck down,” he added.

Justice Chandrachud took a broader view and said, “This court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is denial of this right. Section 497 denudes a married woman of her agency and identity, employing force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality.” He added that marriage could not force an individual to cede her sexual autonomy to others.

Adultery a ground for any kind of civil wrong

Dhananjay Mahapatra, ‘Must protect autonomy to make intimate choices’, September 28, 2018: The Times of India

The Supreme Court had many questions against the rationale behind adultery being made a criminal offence, prominent among which was why was it not adultery if a married man had sexual relationship with an unmarried woman, divorcee or a widow?

Though it struck down adultery as a criminal offence, a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said, “There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong, including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty.”

It said though Section 497 pretended to protect the married woman from being proceeded against for adultery or even as abettor to the crime, it gave no right to the other woman (the adulterous married man’s wife) to file a complaint against her husband. Moreover, why did the law not punish a man for adultery if he had sexual relations with an unmarried woman or a widow, acts which were against the sanctity of marriage, the bench asked.

CJI Misra and Justice Khanwilkar said, “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result... If adultery is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships.”

Elaborating on this, Justice Nariman said, “Manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another (married) man, the other man is immediately guilty of the offence.”

Justice Malhotra said, “It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.

“The autonomy of an individual to make his or her choices with respect to his/ her sexuality in the most intimate spaces of life should be protected from public censures through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the state to take action purportedly in the ‘best interest’ of the individual.”

Justice Chandrachud added, “In so far as two individuals engage in the (sexual) acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with.”

 Govts shouldn’t criminalise act which is civil in nature

AmitAnand Choudhary, Govts shouldn’t criminalise act which is civil in nature, says SC, September 28, 2018: The Times of India

The Supreme Court said the government should adopt a minimalist approach in criminalising offences and desist from criminalising an act which is essentially civil in nature.

While decriminalising adultery by striking down Section 497, an SC bench said the autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure through criminal sanction.

Writing a separate judgment, Justice Indu Malhotra said, “In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against state security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? In fact, a much stronger justification is required where an offence is punishable with imprisonment. The state must follow the minimalist approach in criminalisation of offences, keeping in view respect for the autonomy of the individual to make his/her personal choices.”

In any case, hardly anyone ever convicted

Abhinav Garg, Difficult to prove, Sec 497 hardly saw any conviction, September 28, 2018: The Times of India

Criminal lawyers were hard pressed to recall a single case where a man was convicted for adultery under section 497 IPC, a clause now decriminalised by the Supreme Court.

Interestingly, the National Crime Records Bureau doesn’t even maintain a database on adultery cases as instances are negligible and there is a low chance of conviction in courts.

Adultery charges are sometimes levelled in cases where warring couples are trying to get an upper hand in legal battles over dowry harassment and cruelty, with desperation often triggering counter charges and FIRs. Ultimately, lawyers concede that the section rarely goes beyond the summons stage when parties either settle the matrimonial dispute or divorce each other.

Lawyer Vijay Aggarwal, who practices extensively in Delhi’s trial courts, says while he considers the SC ruling a very welcome step, it doesn’t change the equation much on the ground. “The conviction rate in section 497 IPC was negligible because proof of sexual intercourse is required to prove adultery which is seldom available as everything happens behind closed doors. Hence, such an offence is almost impossible to prove. So, this is more of a technical correction as cases were not reaching anywhere even otherwise,” he said.

However, the ruling will put an end to the practice of couples using the section more as a weapon. Lawyers told TOI it is common for cornered husbands facing dowry harassment charges to hit back against those helping the estranged wife by accusing them of adultery and prolonging criminal proceedings.

Advocate Prabhjit Jauhar, who specialises in fighting divorce cases, cited a rare case decided by the Delhi high court in 1972 where it punished a man for adultery by keeping him in custody till the rising of the court along with a fine of Rs 1,000.

“Due to it being a bailable offence which is non-cognizable (police can register case only on court orders), there ares hardly any convictions as the cases peter out in court once summoning of the accused starts and the judge has to go by actual evidence. The utility of this section was limited to forcing the other party to settle or cave in, not to result in a conviction. Viewed in that light the SC has ended misuse of this law,” Jauhar added.

Question Of Woman’s Sexual Autonomy

Dhananjay Mahapatra, September 28, 2018: The Times of India

Sec 497 Unconstitutional, Allows Man To Control Wife’s Sexuality: Chandrachud

Faulting the constitutionality of Section 497, which made adultery an offence, Justice D Y Chandrachud on Thursday said marriage could not be a tool to allow a husband to curtail the sexual autonomy of his wife.

“The sexual autonomy of a woman is part of her inviolable core. Neither the state (through Section 497) nor the institution of marriage can disparage it. By reducing the woman to the status of a victim and ignoring her needs, the provision penalising adultery disregards something which is basic to human identity. Sexuality is a definitive expression of identity. Autonomy over one’s sexuality has been central to human urges down through the ages. It has a constitutional foundation as intrinsic to autonomy,” he said.

“Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the ‘aggrieved’ party, is given the right to initiate prosecution... Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497,” he added.

Scripting a chapter in the judgment titled ‘Good Wife’, Justice Chandrachud said, “Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values.

“The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship (with another married man) is of no consequence to possible prosecution.”

Mocking the irrational social norms fastened on women, Justice Chandrachud said, “Section 497 has a significant social impact on the sexual agency of women. It builds on existing gender stereotypes and bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage.

“In restricting the sexual agency of women, Section 497 of Indian Penal Code gives legal recognition to socially discriminatory and genderbased norms. Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labelled immoral, shameful and were criminally condemned.

“Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence. Fidelity is only expected of the female spouse. This anachronistic conception of both, a woman who has entered into marriage as well as the institution of marriage itself, is antithetical to constitutional values of equality, dignity and autonomy.”

Proof of adultery

DNA tests

Rajesh Kumar Pandey, November 18, 2020: The Times of India

The Allahabad high court, in a recent judgment, has ruled that a DNA test to establish a child’s paternity is the “most legitimate and scientific means” that can be used by a man to assert claims of his wife’s infidelity. The court added that the test is also the wife’s “most authentic way to establish that she had not been unfaithful, adulterous or disloyal”.

The ruling came while the court was hearing a plea regarding whether a husband, in a divorce petition, can ask the court to direct the wife to undergo a DNA test or refuse to undergo one himself.

Husband sought divorce for ‘adultery’

In case she elects to undergo a DNA test, then the findings of the DNA test will determine conclusively the veracity of the accusation levelled by the petitioner husband against her.

“The DNA test is the most legitimate and scientifically perfect means which the husband could use to establish his assertion of his wife’s infidelity. Further, the DNA test should simultaneously be taken as the most authentic, rightful and correct means also with the wife for her to rebut the assertions made by the husband,” Justice Vivek Agarwal observed while hearing a petition filed by one Neelam that challenged an order (dated September 22, 2018) passed by the additional principal judge, family court, Hamirpur under Section 13 of the Hindu Marriage Act, 1955.

Neelam and Ram Asrey married on April 28, 2004 and had three daughters. According to the husband, he has not been living with his wife since January 15, 2013, and there had been no resumption of cohabitation since then. Neelam gave birth to a boy on January 26, 2016. Hence, he said, the grounds for the divorce was adultery.

No DNA test if there is no proof of adultery: SC

Amit Anand Choudhary, August 4, 2021: The Times of India

The Supreme Court said that DNA tests cannot be ordered to establish the legitimacy of a child born during the subsistence of a marriage if there is no primary evidence of adultery.

A bench of Justices Vineet Saran and Dinesh Maheshwari set aside the orders of a lower court and Bombay high court which had allowed a plea of a man to order DNA test of his child in a matrimonial dispute with his wife after he alleged that he was not the biological father and that his wife had physical relations with other men.

Referring to Section 112 of the Indian Evidence Act which talks about presumption of the legitimacy of a child, the bench said that DNA test could not be straightaway ordered to prove adultery and the lower court and the high court erred in passing the order. The court said there must be some primary evidence to prove the adultery allegation and only then the court can consider going for the scientific evidence of DNA testing.

“Where is the primary evidence? Straightaway DNA test cannot be done. You have to show some primary evidence,” the bench told the man’s counsel Manisha Karia who had contended that the order passed by the HC was right.

The couple had got married in 2008 and a daughter was born in 2011. Six years later, the husband filed a divorce petition. Subsequently, he filed an application before the family court for the DNA testing of the child. The petitioner said he had not raised doubts on the legitimacy of the child in his divorce petition as he was under the impression that he was the biological father but later on “realised that there was no possibility that he was the cause of (the girl’s) birth, as he had been using protection whenever she allowed him to be physically intimate”. The lower court allowed his plea which was upheld by HC and the wife then moved SC.

Senior advocate Devadatta Kamat, appearing for the wife, told the bench that no allegation of adultery was made in the divorce petition filed by the husband and not one averment was made in that petition. He said that the allegation levelled against her was baseless.

The court, after hearing both sides, quashed the order for the DNA test and said, “In the absence of primary evidence by the respondent in the case of adultery, the conduct of a DNA test which is the secondary evidence ought not have been passed. We set aside the order”.

The bench, however, suggested that the parties to go for a divorce settlement instead of raising the issue of adultery and DNA test again in a lower court. As the counsel appearing for both the parties agreed to convince their clients, the bench posted the hearing for Wednesday to settle the dispute.

See also

Paternity and the law: India

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