Author: Aarsha Prem, BBA LLB (Hons) Centre for Legal Studies Gitarattan International Business School, Delhi( Affiliated to GGSIPU)

What is Adultery?

If you look into the mirror and see not your face but your character and that scares you, yoU have done wrong.

Adultery in a marriage is what ruins families and breaks apart relations. Adultery can be

committed by both males and females. Adultery is explained under the Indian Penal Code 1860 section 497 [2] as: “Whoever has sexual intercourse with a person who is and whom he has known 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 cases, the wife shall not be punishable as an abettor.

The word “adultery” derives its basis from the French word “avoutre”, evolved from the

Latin verb “adulterium” which means “to corrupt”. The dictionary defines adultery as an act that a married man commits if he has sex with a woman with whom he has not entered into wedlock. Adultery can be when a married man has coitus with an unmarried woman or with the wife of another man.

However, in the adultery committed by two people, only the male is convicted while a woman is called innocent even if she is the one committing adultery in her relation. This created a hue and cry about the adultery laws being pro-women while at the same time disrespecting them.


Adultery Law Amendment

In a land of equality to every person irrespective of gender, the adultery law showed a

disproportion in the punishment meted out for the crime against marriage. In cases of

adultery, the wife shall not be punishable as an abettor. Similarly, an unmarried woman can not be prosecuted for adultery. The offence of adultery is, according to Section 497,

committed by a man against a married man. A marriage is between two individuals, making promises of love and faith in their matrimony. Therefore, for an offence in a marriage committed by the consent of two people, it seemed hardly justified to convict just one as a criminal.

The final change to adultery laws came with the order that declared that adultery was no longer a crime under the Indian Penal Code, striking down a 158-year-old colonial-era law which it said treated women as male property and for a marital offence prescribed a criminal justice to just one of the convicts.

Amendment Act of 1976 was the Marriage Laws (Amendment) Act which makes an act of adultery valid ground for divorce. Under this amendment, either spouse can seek divorce on the ground of adultery

Why is the Amendment a welcome change?

In the event of a man committing adultery by means of sexual intercourse with a married woman or an unmarried woman, the previous law did not confer any right on the man's wife to prosecute the adulterous husband or the woman with whom the husband had coddled in sexual intercourse. Therefore, the woman had virtually no rights and a mountain of pain and suffering. Similar was the plight of the husband whose wife had indulged in adultery, he too had no path to justice.

This old law went against the concept of crime and punishment. Adultery becomes not just a crime against the spouse but also against the family. A family is destroyed and it should not matter whether the perpetrator is a man or a woman. Both should be equally put the blame.

The decision of the supreme court is not to allow blatant adultery but to allow for a solution better adapted to the offence. For an offence in a marriage the solution must be provided within the perimeters of marriage. Following the amendment either party to the marriage may present a petition for divorce under clause (i) of sub-sec. (1) of s. 13 of the Hindu Marriage Act, on the ground of adultery of the spouse. The expression ' living in adultery' used in the previous section 13(I)(i) meant a

a continuous course of adulterous life as distinguished from one or two lapses from virtue.

The new section now makes even a single act of adultery as a ground for divorce.

The amendment made adultery a ground for divorce rather than a criminal offence or being a ground for judicial separation as under the previous law. This made the punishment fit the crime. For an offence in the marital status, a punishment within the marriage was provided. Consider this- if you are bit by the venom the first thing you must do is suck out the venom and take an anti-venom rather than amputate the hand.

Sexual intercourse becomes a crime only when consent is taken out of it. Extramarital

consensual coitus is betrayal rather than a crime. This does not distinguish betrayal by a man or a woman. And this betrayal sanctions the need to free oneself from a poisonous life.

How people are affected?

The main part of change is acceptance. While numerous people are in support of this

amendment and are praising the Courts for having brought such a landmark tradition, there are also people who have taken the amendment as a motivator to indulge in more extramarital affairs. The people are misinterpreting the decriminalising of the adultery law as freedom to be unfaithful. The mindset of people has corrupted to such an extent that they require criminal punishment in order to be sincere in their marriage, what does this say about our ideals and characters?

Adultery starts in the mind first. Long gone are the days when divorce was scorned upon, the court has through its various acts provided the people with relief to any issue in marital life. But in the end, it is the person who has to decide whether he/she can be courageous enough to end the marriage when it breaks or whether they would be cowardly enough to commit adultery.

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