ADULTERY

(4th Assignment)

SUBMITTED BY:
Saumya Kumar Singh
SEMESTER- 4TH
B.A. L.L.B. (Hons.)
Chanakya National Law University, Patna
 INTRODUCTION

Definition-

Voluntary sexual intercourse between a married person and someone other than that person's
current spouse or partner.1

Adultery is viewed by the law in many jurisdictions as an offense injurious to public morals and
a mistreatment of the marriage relationship. Statutes attempt to discourage adultery by making
such behavior punishable as a crime and by allowing a blameless party to obtain a Divorce
against an adulterous spouse.

Anyone familiar with the 10 Commandments will remember #7: "Thou shalt not commit
adultery".

Most of the ancient texts and even today most of the legal systems condemn adultery and treat it
as a criminal offence. However, the quantum of punishment differs.

Some countries gave bizarre punishments for Adultery. Like the following piece of ancient law
which is taken from translation of an ancient Mexican law code, Nezahualcoyotl's Law Code
(1431). - "Adulterers were flattened by a large and heavy stone or were stoned in the market.
"Or, if the adulterers had killed their spouses, then the male was burned to death and the female
hanged."2

In the 2003 New Hampshire Supreme Court case Blanchflower v. Blanchflower3, it was held that
female same-sex sexual relations did not constitute sexual intercourse, based on a 1961 definition
from Webster's Third New International Dictionary; and thereby an accused wife in a divorce
case was found not guilty of adultery.

Religious Perspective-

 Islam- Zina is an Arabic term for illegal intercourse. Adultery is a violation of the marital
contract and one of the major sins condemned by Allah in the Qur'an.

1
https://www.merriam-webster.com/dictionary/adultery
2
http://www.duhaime.org/LegalResources/FamilyLaw/LawArticle-1626/Adultery-A-Bizarre-Legal-History.aspx
3
150 N.H. 226
According to Muhammad, an unmarried person who commits adultery or fornication is punished
by flogging 100 times; a married person will then be stoned to death.4

 Hinduism- It condemns adultery. Hindu text Rigveda declares adultery to be evil. Another
text, Manusmriti, declares adultery by husband or wife to be wrong, and as one of the most
heinous and degrading offence.

In India, adultery is the sexual intercourse of a man with a married woman without the consent of
her husband when such sexual intercourse does not amount to rape. It is a criminal offence as
well as a valid ground for Divorce.

In most Western countries, adultery itself is no longer a criminal offense, but may still have legal
consequences, particularly in divorce cases. In countries where adultery is a criminal offense,
punishments range from fines to caning and even capital punishment.

4
Hadith Muslim 17:4192. 
 INTERNATIONAL TRENDS

 Europe-
All European nations have decriminalized adultery and, while it is not considered a criminal
offence in most Western parts, it may still have legal consequences, especially in divorce
proceedings.5 Among the last Western European countries to repeal their laws were Italy,
Spain, Portugal, Greece, Belgium, Switzerland and Austria.

 United States- In the United States, laws vary from state to state. Up until the mid- 20th
century most U.S. states had laws against adultery. These laws have gradually been abolished
or struck down by courts as unconstitutional. States which repealed their adultery laws in
recent years include West Virginia in 2010, Colorado in 2013, and New Hampshire in 2014.

 Australia- Adultery is not a crime in Australia. The laws consider it private matter throughout
Australia, irrespective of marital status.6

Some other countries-

 South Korea has decriminalised adultery, revoking a law that punished cheating
spouses with up to two years' imprisonment.
 In Turkey adultery laws were held to be invalid in 1996/1998 because the law was
deemed discriminatory as it differentiated between women and men.7
 In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979.
The Ordinance sets a maximum penalty of death.8
 China does not have any legal provision to punish a person for adultery. It is only a
ground for divorce.9

5
http://www.theweek.co.uk/62723/adultery-laws-where-is-cheating-still-illegal
6
https://www.australiacounselling.com.au/adultery-relationship-infidelity/
7
https://www.washingtonpost.com/.../turkeys-erdogan-wants-to-make-adultery-a-crime/
8
www.impowr.org/content/current-legal-framework-adultery-pakistan
9
www.chinadaily.com.cn/opinion/2014-07/03/content_17639210.htm
 INDIAN SCENARIO

Section 497 of Indian Penal Code, 1860 defines and criminalizes Adultery in India.

Section 497- 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.10

This is a Bailable, Non-Cognizable offence and triable by Magistrate First Class. This offence is
compoundable by the husband of the woman.11

Some other provisions-

Section 198 of the Code of Criminal Procedure, 1973 says only the husband of the married
woman, who had sexual intercourse with another man, could file a case against the male who
indulged in the act with her.

The above two sections deals with the criminal offence of adultery. Section 13 (1) of Hindu
Marriage Act, 1955, makes adultery a ground for divorce.

Debate on the Law of Adultery-

In India, the law states that only a man can file a case of adultery and that too against a man with
whom his wife has allegedly slept with. So, in essence, a woman can neither file a case of
adultery, nor can she be prosecuted on the ground of adultery. This discriminates against men
and women.

It discriminates against men because while they can be prosecuted for the crime of adultery if
they sleep with a married woman, a woman cannot be prosecuted for sleeping with a married
man.

10
https://indiankanoon.org/doc/1833006/
11
https://lawrato.com/indian-kanoon/ipc/section-497
This law on adultery discriminates against women, too, because while a married man can file a
case of adultery, a married woman cannot file a case against the husband or against the woman
with whom her husband slept.

Previous judgments of SC-

In Yusuf Abdul Aziz v. The State Of Bombay,12 the appellant, filed a case to determine the
constitutional inconsistency between Article 14 of the Indian Constitution (Right to Equality) and
Section 497 of IPC.
The Supreme Court was of the view that Section 497 is protected by Article 15(3), as it was
made for the protection and uplift of women in the society.
Article 15(3) lays down: “Nothing in the Article shall prevent the state from making any special
provision for women and children”.

In Soumithri Vishnu v. Union of India13, it was contended that in contrary to Article 14 of the
Constitution, which provides for equality before law and equal protection of law, Section 497 of
IPC creates an irrational classification between men and women.
The apex court held that “such arguments go to the policy of the law, not to its constitutionality,
unless while implementing the policy, any provision of the Constitution is infringed.”

Recent Change-
In 2017, the Supreme Court said the dusty Victorian provision of adultery in the Indian Penal
Code treats a married woman as her husband’s “subordinate.” The court admitted a petition to
drop adultery as a criminal offence from the statute book.14

Issuing notice, the court would examine two aspects of the penal provision. One, why does
Section 497 treat the man as the adulterer and the married woman as a victim. Two, is a married
woman the "property" of her husband or a passive object without a mind of her own?
Justice D.Y. Chandrachud paraphrased the petitioner's arguments that it amounts to a violation of
a women's fundamental right against discrimination under Article 15 when law "assumes a
12
1954 AIR 321.
13
1985 AIR 1618.
14
http://www.thehindu.com/news/national/supreme-court-agrees-to-examine-adultery-provision-in-
ipc/article21296775.ece
patronising attitude to women." “By presuming the woman to be a victim, has the law made a
patronising assumption” he asked.

Terming the provision “quite archaic,” the court observed in the order that when society
progresses, rights are conformed and a new generation of thoughts should spring forth. However,
the apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the
constitutionality of Section 497.15

15
http://www.thehindu.com/news/national/supreme-court-agrees-to-examine-adultery-provision-in-
ipc/article21296775.ece
 CONCLUSION

The recent discussions on the need for a Uniform Civil Code in India and to scrap the triple talaq
system amongst Muslims have generated much heat. The government says that it is serious about
gender discrimination as the concept of triple talaq violates the right of Muslim women.

In that case the government should also look into the system of Adultery as it discriminates
against both men and women. It should act expeditiously and make necessary reforms in the laws
governing adultery.

The 42nd Law Commission report of India called for making the law on adultery gender neutral,
by making it equally applicable to men and women.
Whether the law will be made gender neutral or be scraped all together is a debate that India
needs to undertake.