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What constitutes adultery?

According to Section 497 of IPC, whosoever has sexual intercourse with the wife of another man is guilty of adultery.

india Updated: Dec 26, 2006 04:08 IST

According to Section 497 of IPC, "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 a case the wife shall not be punishable as an abettor."

Thus under Section 497 of the Indian Penal Law:

a. an adultery can be committed only by a man and not by a woman.

b. the person committing adultery must also know or should have reason to believe that the woman with whom he had intercourse is the wife of another man, and

c. the sexual intercourse should not amount to the offence of rape.

Section 198 of Criminal Procedure Code, 1973:

It allows a husband to bring charges against the man with whom his wife has committed adultery. However, it explicitly denies a woman the right to charge her husband with adultery.

Criticism of the existing provisions on adultery

a. Adultery is only committed against the husband of the adulterous woman.

b. A man cannot level an adultery charge against his wife but can do so        against the "other man".

c. It treats wives as the property of their husbands and accordingly considers
that adultery is an offence that a man commits by trespassing upon the property (wife) of another. That is why she is not liable as an abettor and a charge of adultery can not be filed against her.

Cry for change in Section 497 of IPC:

In 1951, one Yusuf Aziz challenged the constitutionality of the provision but the Bombay High Court upheld its validity, saying the Constitution has such special legislation for women.

In 1971, the Fifth Law Commission recommended changes in the provision but it was never implemented.

Justice Malimath Committee, which was assigned the task of suggesting reforms in the criminal justice system of the country, had in 2003 suggested changes in Section 497 of IPC to make it gender-neutral.

"The object of this section (Section 497 of the IPC) is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)," it said.

The Committee suggested that section 497 be suitably amended to the effect that "whosoever has sexual intercourse with the spouse of any other person is guilty of adultery".

The NCW says:

1. Make adultery a civil wrong and not a criminal offence, as is the position today.

2. But do it only after achieving national consensus on the issue.

3. Women should not be punished for adultery as she is the victim and not an offender in such cases.

4.  Amend Section 198 of CrPC to allow women to file complaints against unfaithful husbands and prosecute them for their promiscuous behaviour.

Famous case of adultery:

Indian Navy Commander Kawas Maneckshaw Nanavati shot dead Sindhi businessman Prem Ahuja on April 27, 1959 for his illicit relationship with his wife Sylvia.

He was acquitted by the jury but the High Court held him guilty of murder and sentenced to life which was upheld by the Supreme Court. Later, he was pardoned and became a free man after spending three years in jail.

Email Satya Prakash: satya.prakash@hindustantimes.com