Law of Adultery under IPC

Introduction:

‘Adultery’ has been derived from the Latin word ‘adulterium’ which means ‘to corrupt’. The dictionary meaning of adultery is the act of having sexual relations by a man with a married woman, to whom he is not married. But the legal definition of adultery is different in different cultures. In India, men have been held liable for the offense of adultery since the laws were made. Adultery was criminalized as per Section 497 of the Indian Penal Code, 1860 according to which if a person has sexual intercourse with the wife of another man, not amounting to rape, without the consent of that man, he shall be guilty of adultery and will be punished with imprisonment for a period up to 5 years or fine, or both.

Adultery is committed only by the man and not the woman he had sexual intercourse with without her husband’s consent. The woman is not punishable under Section 497 even as an abettor to the crime of adultery. Section 198 of the Code of Criminal Procedure, 1973 defines ‘aggrieved person’ and it is the husband of the woman or another person who had the care of her, and these two people are considered to be aggrieved by the offense committed under Section 497.

Adultery under Indian Penal Code

The IPC makes adultery a non-cognizable i.e. accused cannot be arrested without a warrant and a bailable offense. Also, the offense can be compromised at the option of the husband of the woman with whom adultery is committed. The essentials for committing the offense of adultery are:

1. Sexual intercourse by a man with the wife of another.
2. The man must clearly know that the woman is the wife of another man.
3. The sexual intercourse should not be rape.
4. Sexual intercourse should be without the consent of the woman’s husband.

A complaint of adultery can only be filed by the husband of the woman as he is treated as an aggrieved person under the law. A woman cannot file a complaint against her own husband for committing adultery with another woman. Thus, adultery has been criticized for a long time for not treating men and women equally. In short, a man can only be accused as well as aggrieved in the offense of adultery.

The Amendment

The Law of adultery has been governed by Section 497 of the IPC. It recently came under the scrutiny of the Supreme Court of India when a petition was filed by Joseph Shine to strike down the law. Although the law of adultery has been brought before the Supreme Court for changes many times, its validity was upheld on all occasions. But in 2018, the Supreme Court bench headed by Justice Dipak Misra decriminalized adultery as it is anti-women.

Section 497 of the IPC was initially made to criminalize adultery but the Supreme Court in its judgment said that the law might seem pro-women, but apparently, it is anti-women. It is not as per Indian morals that a wife can be a subject of someone else’s desires if her husband consents to it. This provision of Section 497 is against morality and conscience, it is very old fashioned and does not have any relevance now. There are two people involved in a marriage and both have equal responsibility for upholding the bond and its sanctity.

After this judgment of the Supreme Court, Centre issued an affidavit stating that adultery should continue to be an offense because decriminalizing it will weaken the sanctity of marriages and will hurt marriages. There are mixed opinions as to the decriminalization of adultery but in the time when women are fighting for equal rights, this kind of decision was needed. While passing the judgment, Justice Dipak Misra had said “It is time to say the husband is not the master”. It is wrong to make one gender subordinate to another by the laws because the laws should promote equality among all genders. This is an ancient concept that wives were considered to be invisible before the law because they lived in the shadows of their husbands.

Conclusion

Women are not the property of men and should be given a chance to voice their opinion. As adultery is now decriminalized, it remains a civil offense and can be a ground for divorce. Now, adultery can be a crime only if it is within the scope of Section 306 of IPC which is abetment for suicide. Two people in a marriage should be at liberty to decide the terms of their marriage and both husband and wife should be given equal rights. The court has been right in decriminalizing adultery.