Adultry

Adultery is a form of extramarital sex. It is the voluntary indulgence of a married person in sexual intercourse with someone other than his/her spouse. However, legal definitions and implications of this term vary from country to country. In some countries, it is an offence and in some it is not. In India, according to the law, adultery refers to sexual intercourse between a married woman and a person other than her husband. In India, adultery is crime.

The offence of adultery is defined under Section 497 of the Indian Penal Code, 1870 which states – "Whoever has sexual intercourse with a person who is and whom he knows or has a 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 the offence of Adultery."

Thus, a person can be charged of adultery if:

He had sexual intercourse with the wife of another man

Clear indulgence in sexual intercourse must be proved. If the act does not involve sexual intercourse, but ends at preparation stage, that would not fall within the ambit of this section. To convict adultery, proof of sexual intercourse is important. It must be clarified that the woman in such relationship must be a wife of another man. Sexual intercourse with an unmarried woman, widow or a prostitute would not amount to adultery.

He had the knowledge that the woman is wife of another man.

The accused person should have the knowledge of the marital status of the woman. He need not know the identity of the husband, but if he had enough reasons to believe that the woman is married, then such an act would amount to adultery.

He had sexual intercourse without the consent or connivance of the husband.

If the husband has the knowledge of such relationship and does not act upon it, then he is said to have consent. Under such cases, the extramarital relationship shall not amount to adultery.

He had sexual intercourse that did not amount to rape.

The woman in said relationship must be above the age of 16 years and must have consented to the relationship. It is important that the woman had willfully had the sexual intercourse. If the woman did not consent, then such an act would be rape and not adultery. However, if the woman is below 16 years, her consent would be immaterial. It would still amount to rape.

Criminal Proceedings

Till date, a man who is guilty of adultery shall be punishable under Section 497 of the Indian Penal Code, 1870. The person who commits adultery shall be punished with an imprisonment which may extend to 5 years, or with fine, or with both. The wife as an abettor shall not be punishable.

Issues with the Law

There are many basic issues with the law relating to adultery. Adultery only arises when a man, has sexual relations with a married woman. If a man has sexual intercourse with an unmarried woman, or with a widow, or even with a married woman whose husband consents to it, then such an act is not adultery.

Since long, the laws on adultery in India have been subject to controversies. The law has been argued based on the fact that it is gender biased. The inconsistencies of the man are punishable, but not the inconsistencies of the wife. The wife is not punishable as an abettor.

Also, the act of adultery involves two grown-up people who are capable of making rational decisions. This raises the question whether or not the adulterer deserves criminal punishment.