Published on February 19, 2014
Amity Law School, NOIDA Adultery as a Ground for Divorce Name of Author: Kunal Basu Enrolment no.: A3256113116 Semester: II Programme: LLB (A32561) 0
Index Introduction ................................................................................................................2 Adultery Law in History ............................................................................................2 Adultery in the Hindu Marriage Act, 1955 ................................................................3 Adultery in the Indian Penal Code .............................................................................3 Adultery in the Criminal Procedure Code .................................................................4 The Legal Position of Parties in an Adultery Case ....................................................5 Early Interpretation of Adultery Law by Courts ........................................................5 Recent Interpretation of Adultery Law by Courts .....................................................6 Standard of Proof in Adultery Cases .........................................................................9 Conclusion ...............................................................................................................11 Citations.…………………………………………………………………………..12 1
Introduction The term adultery comes from the words ‘ad’ (towards) and ‘alter’ (other) combined in the Latin term, adulteriumi. Halsbury's Laws of Englandii (10th Ed.) states the legal definition of adultery as, “For the purpose of relief in matrimonial jurisdiction, adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse.” Adultery Law in History Provisions relating to, and dealing with, adultery have existed in legal codes from ancient times. Obviously adultery is as old as humankind. The Code of Ur-Nammuiii (ca. 1900-1700 BCE) deals with the crime of adultery. Verse 6 of the Code lays down that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male’ whereas verse 7 states that, ‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’ Hammurabi’s Code, dating back to at least 1750 B.C., lays down in verse 129, that ‘If a man's wife be surprised, in flagrante delicto, with another man, both shall be tied and thrown into the water…’. Verse 130 states that ‘If a man violate the wife (betrothed or child wife) of another man, who has never known a man, and still lives in her father's house, and sleep with her and be surprised, this man shall be put to death, but the wife is blameless’, thereby providing a sort of an immunity to the wife involved in an adulterous relationship, if she were to be a child, in line with the modern day principle of ‘doli incapax’. The Ottoman Penal Code of 1858 that Article 188iv of the Code lays down that ‘He who has seen his wife or any of his female mahrams, a term which is used to refer to ‘a relative who is within the prohibited degrees of relationship (i.e. the woman cannot marry the subject)’, with another in a state of disgraceful adultery and has beaten, injured, or killed one or both of them will be exempted…’, thereby providing a defence to the husband if he were to kill his wife and/or her lover on account of having been involved in an adulterous relationship. Similarly, the 1810 Penal Code of France laid down that ‘…in the case of adultery, provided for by article 336, murder committed upon the wife as well as upon her accomplice in 2
flagrante delicto, in the house where the husband and wife dwell, is excusable’, thereby making the crime of murdering one’s wife and/or her lover, a good defense in the then French law. The concerned provision of the 1810 Penal Code of the French, therefore, had a strong resemblance to the above cited provision of the Penal Code of 1858 of Ottoman origin. These two provisions of law, that have been done away with since, form the very source for most of the laws in the Middle Eastern and North African countries that continue to legalize or defend the murdering of the wives and/or their lovers, by their respective husbands, as a punishment for adultery. Adultery in the Hindu Marriage Act, 1955 In India, adultery as a ground for divorce is enshrined in S. 13(1)(i)v of the Hindu Marriage Act, 1955 as follows: 13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party(i) has, after the solemnization of the marriage had voluntary sexual intercourse any person other than his or her spouse; However, what constitutes adultery has never been explicitly defined. Adultery in the Indian Penal Code Therefore adultery is defined under S. 497 of Chapter XX-Avi of the Indian Penal Code (IPC) as follows: 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. This section does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of 3
adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. Section 497 unequivocally conveys that the adulteress “wife” is absolutely free from criminal responsibility. She is also not to be punished (even) for “abetting” the offence. Section 497, by necessary implication, assumes that the “wife” was a hapless victim of adultery and not either a perpetrator or an accomplice thereof. Adultery, as viewed under IPC, is thus an offence against the husband of the adulteress wife and, thereby, an offence relating to “marriage”. Section-498 (amended in 1976) lays down the punishment for adultery as follows: Enticing or taking away or detaining with criminal intent a married woman “Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such as sexual intercourse by the man not amounting to the offence of rape, commits 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.” Adultery in the Criminal Procedure Code It is in consonance with this approach that Section 198 CrPCvii mandates a court not to take cognizance of adultery unless the “aggrieved” husband makes a complaint as follows: 198. Prosecution for offences against marriage.—(1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence: (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such 4
offence was committed may, with the leave of the court, make a complaint on his behalf. The Legal Position of Parties in an Adultery Case Section 497 IPC read with Section 198 CrPC, sets the seal of unequal status of “husband” and “wife” in the institution of marriage in Indiaviii. It declares that: a) The accused ( B) had sexual intercourse with a woman (W); b) The woman (W) concerned was wife of another man (M) having been lawfully married to him ; c) The accused (B) knew or had reason to believe that the woman(W) was so married; d) There was no consent or connivance on the part of the husband (M) of the victim woman. To illustrate, “B” a boy has sexual relationship with “W” a woman who is the wife of “M” a man. B the flirt knows it or he has reason to believe that W is the wife of poor M. M has neither given his consent nor connivance to B for such sexual intercourse. Though such sexual intercourse by B will not amount to rape, but B shall be guilty to the offence of Adultery. B 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 W wife shall not be punished as an abettor. A famous example is that of Indian Navy Commander KM Nanavati who shot dead businessman Prem Ahuja on April 27, 1959, for his illicit relationship with his wife Sylvia. While Nanavati faced prosecution, Sylvia went scot free (K. M. Nanavati vs State of Maharashtra)ix. Early Interpretation of Adultery Law by Courts Immediately after the commencement of the Constitution of India, Section 497 IPC was assailed on the ground that it goes against the spirit of equality embodied in the Constitution. In 1951, Mr. Yusuf Abdul Aziz, charged with adultery, contended before the Bombay High Court that Section 497 IPC was unconstitutional as it operated unequally between a man and a woman by making only the former responsible for adultery, in contravention of Articles 14 and 15 of the Constitution. This, he argued, discriminated in favor of women and against men only on the ground of sex. Recalling the historical background of Section 497 and the then prevailing social 5
conditions and the sexual mores oppressive to women, and the unequal status of women, the High Court of Bombay upheld the constitutional validity of the provision. Chagla, CJ, observedx: What led to this discrimination in this country is not the fact that women had a sex different from that of men, but that women in this country were so situated that special legislation was required in order to protect them, and it was from this point of view that one finds in Section 497 a position in law which takes a sympathetic and charitable view of the weakness of women in this country." The Court also opined that the alleged discrimination in favour of women was saved by the provisions of Article 15(3) of the Constitution which permits the State to make "any special provision for women and children. In his appeal to the SCxi, Yusuf Abdul argued that Section 497, by assuming that the offence of adultery could only be committed by a man and mandating a court that the adulteress wife be not punished even as an abettor, offended the spirit of equality enshrined in Articles 14 and 15 of the Constitution. Such immunity assured to the adulteress wife (even) for her willing participation in the adulterous sexual activity, it was argued, did amount to a sort of license to her to commit and abet the offence of adultery. Vivian Bose, J., speaking for the Constitutional Bench (comprising M.C. Mahajan, CJ Mukherjea, S.R. Das and Ghulam Hasan, JJ.), like Chagla, CJ, relying on Article 15(3), held that Section 497 was a special provision made for women and therefore is saved by Art. 15 (3). To the argument that Article 15(3) should be confined only to provisions which are beneficial to women and should not be used to give them a license to commit and abet a crime with impunity, the Apex Court responded: We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited. Recent Interpretation of Adultery Law by Courts More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz case, constitutional vires of Section 497 was revisited in Sowmithri Vishnu v. Union of Indiaxii. It was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: 6
(i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery (ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, (iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free license under the law to have extramarital relationship with unmarried women. The Supreme Court rejected these arguments and ruled that Section 497 did not offend either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the argument that Section 497, in the changed social “transformation” in feminine attitudes and status of the woman in a marriage, was a flagrant instance of “gender discrimination”, “legislative despotism” and “male chauvinism”, by opining that it is for the legislature to take note of such a “transformation” while making appropriate amendments to Section 497. The argument that Section 497 is a kind of “romantic paternalism” premised on the traditional assumption that a woman, like a chattel, is the property of man was also rejected by the Court. The woman petitioner also argued that the right to life, as interpreted by the Supreme Court in the recent past, includes the right to reputation and the absence in Section 497 of the provision mandating the court to hear the married woman with whom the accused has allegedly committed adultery violates her constitutional right to life under Article 21. Assuming that the right to be heard is concomitant with the principles of natural justice and believing that a trial court allowed the married woman to depose her say before it recorded adverse findings against her, the Apex Court held that the absence of a provision mandating hearing the adulteress wife in Section 497 did not make the section unconstitutional. The Apex Court observed as follows, hinting perhaps at the need for an executive re-look at this seemingly antediluvian law: The alleged transformation in feminine attitudes, for good or for bad, may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of 'adultery' to keep pace with the moving times. But, until then, the law must remain as it is. The law, as it is, does not offend either 7
Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried woman should also be comprehended with the definition of 'adultery' is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery? That is the grievance of the petitioner. In V. Revathi v. Union of Indiaxiii this disability was relied upon by a wife to challenge the constitutional propriety of Section 198(2) read with Section 198(1) CrPC, which, as mentioned earlier, empowered the husband of the adulteress wife to prosecute the adulterer but did not permit the wife of an adulterer to prosecute her promiscuous husband. Probably realizing that the section also did not permit the husband of the adulteress wife to prosecute her for her infidelity and recalling the ratio of Sowmithri Vishnu case, she asserted that whether or not the law permitted the husband to prosecute his disloyal wife, the wife could not be lawfully disabled from prosecuting her unfaithful husband. Such a statutory provision that is premised on gender discrimination in contravention of the gender equality guaranteed in the Constitution was, the petitioner wife argued, unconstitutional as it amounted to “obnoxious discrimination”. Upholding the constitutionality of Section 497 IPC and Section 198(2) CrPC, which according to the Court "go hand in hand and constitute a legislative packet" to deal with "an outsider" to the matrimonial unit who invades the peace and privacy of the matrimonial unit, Thakkar, J. of the Apex Court observed: The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. ... There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate 8
analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. In Earnest John White Vs Mrs. Kathleen Olive White and Others, 1958 SCR 1410: AIR 1958 SC 0441xiv, the wife went to Patna and stayed with Respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. . The husband filed for dissolution of marriage on the ground of her adultery. The trial court had granted the divorce and High Court had reversed the decree of divorce. Upon appeal, SC held that there was undoubtedly a guilty inclination and passion indicated by the conduct of Respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. On the other hand her conduct as shown by the evidence was so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the guilt should be reversed. In Hirachand Srinivas Managaonkar Vs Sunandaxv, AIR 2001 SC 1285 : 2001(2)SCR 491 : 2001(4) SCC 125 : 2001(2) SCALE 514 : 2001(3) JT 620, the appellant was the husband of the respondent. On the petition filed by the respondent under section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant, a decree for judicial separation was passed by the High Court of Karnataka on Jan 6, 1981. In the said order the Court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order was not complied with by the appellant and the respondent did not receive any amount towards maintenance. Thereafter, on Sep 13, 1983, the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there had been no resumption of cohabitation between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The SC held that the husband who continued to live in adultery even after the decree at the instance of wife could not succeed in his petition seeking decree for divorce and that S. 23(1)(a) barred the relief. Standard of Proof in Adultery Cases The charge of adultery, like all other criminal charges, requires strict proof. As the law presumes innocence till the guilt is proved the party alleging adultery must bear the burden of 9
proving the charge. As Lord Atkin said in Ross v. Ross, 1930 AC 1, “That there were opportunities for committing adultery is nothing: there must be circumstances amounting to proof that opportunities could be used.” The charge of adultery, in absence of any direct evidence, can be generally proved by producing presumptive evidence like: a. Circumstantial evidence b. Evidence of non-access and birth of children c. Contracting venereal diseases d. Evidence as to non-access and birth of a child e. Evidence of visits to brothels f. Confession and admission to parties g. Preponderance of probability While the courts acknowledge that adultery by its very nature is generally a secret act where direct evidence is almost impossible, Madras High Court in Dr. Dwaraka Bai vs. Nainan Mathewxvi observed that “It is unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. Therefore, circumstantial evidence is all that can be normally forthcoming regarding adultery. The circumstantial evidence thus produced must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery.” The Orissa High Court endorsed this view of the Madras High Court by stating “To prove factum of adultery direct evidence is not necessary, it can be proved by oral documentary of circumstantial evidence from which the Court can draw inference beyond reasonable doubt that the opposite party had adulterous relationship with the third person.” In White v. White, : 1SCR1410 , while considering similar provisions of the Indian Divorce Act where similar words in Sections 14 and 7 are used, the Supreme Court following the case of Preston-Jones v. Preston Jonesxvii, 1951 AC 391, held 'that the standard of proof in divorce cases would be such that if the Judge is satisfied beyond reasonable doubt as to the commission of a matrimonial offence, he would be satisfied within the meaning of Section 14 of the Act. The terms of Section 14 make it plain that when the Court is to be satisfied on the evidence in 10
respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act.' Regarding the proof of adultery the Madras High Court in Kasturi-Vs-Ramaswami 1979 Cr.L.J 741 observed that sexual intercourse being the gist of offence, direct evidence of an act of adultery was extremely difficult to find. Direct evidence even when produced would lead the court to look upon with suspicion as it was highly improbable that any person could witness such acts which are generally performed with utmost secrecy. In A Jayachandra v Aneel Kaurxviii case of 2004, the SC had held, “To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life’.” Conclusion Notwithstanding major changes in social mores and the emergence of hitherto unknown (in India) forms of relationships, including online social media and same sex, Indian courts have consistently upheld the constitutional validity of Section 497, ostensibly to keep women out of the purview of criminal law. It is obvious that no adultery can be committed unless a woman is a consenting partner. The judicial perception that only a man can be “an outsider”, who has potential to invade the peace and privacy of the matrimonial unit and to poison the relationship between the unfaithful wife and her husband, therefore, seems to be, with due respect, less convincing and unrealistic. “An outsider woman”, can, like “an outsider man”, be equally capable of “invading” the matrimonial peace and privacy as well as of “poisoning” the relationship of not only her own matrimonial home but also that of her paramour. Similarly, the judicial opinion that Section 198(1) read with Section 198(2) CrPC, disqualifying the wife of an unfaithful husband for prosecuting him for his promiscuous behavior, with due respect, is unconvincing and illogical. Such judicial reasoning, in ultimate analysis, unfortunately endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous 11
husband or the “outsider woman” who has poisoned (or colluded with her promiscuous husband to do so) her matrimonial home. The Apex Court, thus, failed to take contemporary insight of this gender-biased law of adultery although it has, from time to time, asserted that it is for the legislature to take cognizance of the social “transformation” and not for it. What is even more surprising is that the Apex Court has not hesitated in steadily expanding the scope of Art. 21 for all Indians, including women. Bibliography Indian Penal Code Criminal Procedure Code Citations i K.I. Vibhute: "Adultery" in the Indian Penal Code: Need for a Gender Equality Perspective (2001) 6 SCC (Jour) 16, available at http://www.ebc-india.com/lawyer/articles/2001v6a3.htm on Jan 11, 2014 ii AIR 1970 Mad 434, available at http://indiankanoon.org/doc/1364110/ on Jan 11, 2014 iii The Ur-Nammu Law Code available http://realhistoryww.com/world_history/ancient/Misc/Sumer/ur_nammu_law.htm on Jan 11, 2014 at iv Lynn Welchman: Extracted provisions from the penal codes of Arab states relevant to ‘crimes of honor’ available at http://www.soas.ac.uk/honourcrimes/resources/file55421.pdf on Jan 11, 2014 v Hindu Marriage Act, 1955, available at bokakhat.gov.in/pdf/The_hindu_marriage_act.pdf on Jan 11, 2014 vi Indian Penal Code, 1960, available at http://indiankanoon.org/doc/1569253/ on Jan 11, 2014 vii Section 198 in The Code Of Criminal http://indiankanoon.org/doc/854390/ on Jan 11, 2014 viii Procedure, 1973, available at K.I. Vibhute: op. cit. ix 1962 AIR 605, 1962 SCR Supl. (1) 567, available at http://indiankanoon.org/doc/1596139/ on Jan 12, 2014 x AIR 1951 Bom 470, (1951) 53 BOMLR 736, http://indiankanoon.org/doc/430784/ on Jan 11, 2014 xi ILR 1952 Bom 449, available at 1954 AIR 321, 1954 SCR 930, available at http://indiankanoon.org/doc/1343950/ on Jan 11, 2014 xii 1985 AIR 1618, 1985 SCR Supl. (1) 741, available at http://www.indiankanoon.org/doc/449750/ on Jan 11, 2014 xiii 1988 AIR 835, 1988 SCR (3) 73 available at http://indiankanoon.org/doc/921415/ on Jan 11, 2014 xiv 1958 AIR 441, 1958 SCR 1410, available at http://indiankanoon.org/doc/1064251/ on Jan 11, 2014 xv SC Appeal (civil) 1473 of 1999, available at http://indiankanoon.org/doc/1872470/ on Jan 11, 2014 AIR 1953 Mad 792 available at http://indiankanoon.org/doc/210422/ on Jan 11, 2014 xvi 12
xvii AIR 1966 MP 252 available at http://www.indiankanoon.org/doc/136076/ on Jan 11, 2014 xviii Case No. Appeal (civil) 7763-7764 of 2004 available at http://www.indiankanoon.org/doc/1178711/ on Jan 11, 2014 13
Adultery law in India: In case of adultery direct proof is difficult to get and one has to rely for proof thereof on circumstantial evidence and the same ...
Adultery Divorce. Adultery Laws in India. Adultery is a voluntary consensual relationship between a married individual and someone who is not his/her ...
Adultery in India. Adultery in India ... Another loophole here is if ‘adultery by law’ is happening, it is only the male involved in this activity who ...
Indian legal system has often been hailed for its progressive and detailed stance on various issues. Yet the IPC has not been able to shed the absurd set of
Adultery Written by: Varad Deore - The Author is IIIYr Student of DES Law College, Pune: Chat with us (2 PM - 9 PM IST)
This article deals with the adultery laws in India. It elaborates the topics like history and the various laws related to adultery in India.
Adultery Law India,Adultery Cases in India,Adultery in Divorce Cases Proceeding,494 IPC,
Posts about Adultery law India written by Civil Lawyers in Delhi