FAMILY LAW RESEARCH PAPER

SEMESTER IV

A PAPER ON: ADULTERY AS A GROUND FOR DIVORCE

SUBMITTED BY
DISHA MAHAJAN
BA LLB A
ROLL NO.: A032

SUBMITTED TO:
PROF: USHA ANDEWAR
KIRIT P. MEHTA SCHOOL OF LAW
TABLE OF CONTENTS

Sr.No. PARTICULARS

1. ABSTRACT

2. INTRODUCTION

3. EVOLUTION IN INDIA

4. HINDU LAWS ON ADULTERY AS A GROUND FOR DIVORCE

5. MUSLIM LAWS ON ADULTERY

6. CHRISTIAN LAWS ON ADULTERY

7. PARSI LAWS ON ADULTERY

8. SPECIAL MARRIAGE ACT ON ADULTERY

9. CRITICISMS OF THE LAW AND THE JUDGMENTS

10. WHETHER SECTION 497 IS STILL RELEVANT?

11. WHY ADULTERY IS STILL PUNISHABLE?

12. CONCLUSION

13. REFRENCES
ABSTRACT
In India, adultery is a crime punishable by up to five years in prison under Section 497 of the
Indian Criminal Code, 1860. When one realises the truth, their initial reaction is often one of
amazement at the State's blatant intrusion into their seemingly private sexual lives. Over 150
years ago, the Criminal Code of 1860, which exempted women from all reformatory duties,
kept adultery under control. The rules regarding adultery remain the same, despite the fact
that many of the Code's provisions had been modified throughout time. The big legal
agreements have every indication of being unlawful, but the legal explanations continue to
support them. This article evaluates adultery practises in the 21st century from a legal and
societal standpoint. According to research, adultery not only violates the law but also starts
new relationships between couples for sexual purposes. Of course, the legislation protects
women, but because of its flaws, it also deprives them of real insurance and increases their
vulnerability in public. After examining the problem from every angle, the piece logically
establishes the need for the Code's modification.
Keywords: Women, Sexual Intercourse, Immorality, Improper Conduct, Civil Offence,
Criminal Offence
INTRODUCTION
Adultery is characterised as voluntary sexual activity between a married individual and a
person other than their spouse. Hinduism views marriage as a sacred institution that serves as
the cornerstone of family life. The sacredness of marriage is violated by adultery, which is
seen as a betrayal of trust and marital integrity. Adultery is recognised as one of the reasons
for divorce in the Hindu Marriage Act of 1955. Adultery is a crime against marriage under
both marital and criminal law, so it is essential in both instances that a strong marriage was in
existence at the time of the violation. It is also essential that the respondent—in this case, the
spouse—was a consenting party for adultery to be considered a crime. So, the sexual activity
must be consent-based. If the respondent had refused, as she did when she was assaulted, it
would not constitute adultery.
From as far back as one can remember, adultery—the act of being sexually unfaithful to one's
life partner—has been ingrained in human civilization. Why do we as a society believe that
commitment to a life partner is difficult? The most intriguing response to this question came
from a revolutionary approach to dealing with adultery, but thankfully such difficult
questions about human infidelity don't bother us here. We are concerned about the way
society views adultery. Purviews differ in how they define adultery; definitions may exempt
unmarried groups from the offence and only subject the married partner to criminal
responsibility; the law may have excluded female lovers, limiting risk for the man. In almost
all places, it is necessary to wait for the disturbed life partner's prior consent before launching
the prosecution. The belief that adultery laws help a largely male target of rebuffing the
spouse, deemed negligible more than asset, for raising concerns of paternity and lineage, has
been strengthened by the focus on women through these measures due to their generally more
dependent social status.
In many modern nations around the world, adultery is still a recognised basis for divorce.
Yet, depending on the jurisdiction, adultery has different legal ramifications. In some
jurisdictions, adultery is a fault-based basis for divorce, which means that the spouse who
cheated on their spouse is deemed responsible for the marriage's dissolution. This may have
an impact on the partition of property, spousal support, and other divorce-related concerns. In
other jurisdictions, adultery is a no-fault cause for divorce, which means that it is just one of
many possible grounds for divorce and has no bearing on how the divorce will be resolved in
court.
One of the justifications for using infidelity as a basis for divorce is that it can assist the
innocent spouse find closure. A spouse may feel betrayed, hurt, and enraged if they learn that
their partner has been having an affair. Enabling them to use infidelity as grounds for divorce
can assist them in ending the marriage and beginning the process of recovery. Additionally,
others contend that if adultery is tolerated by the state, it could damage the institution of
marriage by sending the message that it is acceptable behaviour.

Nonetheless, some people disagree with the use of infidelity as a basis for divorce. One of the
main objections is that it unfairly punishes the spouse who engaged in adultery. They might
be branded as a "bad person," which would subject them to societal shame. Additionally,
some claim that invoking adultery as a basis for divorce upholds archaic gender stereotypes
since women traditionally have a higher likelihood of being called adulteresses than males
Currently, administrators in a significant section of these fields no longer attempt to justify
adultery charges, or other violations for that matter, by highlighting the goal as one of
securing paternal heredity. The renaissance brought a liberal idea convergence into the
criminalization process, which now forms the basis of our understanding of the topic. In this
way, it becomes evidently important to reevaluate the basis of which laws that make adultery
a crime stand.
EVOLUTION IN INDIA
A promiscuous wife faced ostracism considerably worse than the unfaithful man did in 19th-
century Britain, which treated married women as the property of their in-laws.
Whatever the situation, according to both statutory and common law, adultery has never been
wrong. Adultery was once a tort that was similarly abolished in 1857. In this way, the IPC's
authors were mostly unaware of the fact that adultery was a crime.
Lord Macaulay, who played a key role in the early drafting process, gave the possibility of
criminalising adultery in India significant consideration. He came to the conclusion that it
wouldn't be much use. According to him, it would be preferable to achieve the potential
benefits of making adultery a crime through monetary compensation most of the time. Given
the sacred nature of marriage, he conceded that the law would never provide a sophisticated
framework for handling other cases of marital adultery. Several people disagreed on how to
end the IPC, thus they gave us Section 497. Even if one may understand their justification for
exempting women from the Section's risks, it is challenging to understand their justifications
for making adultery a crime. Hence, in order to determine the purpose of criminalization, one
must turn to the experience of various committees and the courts in administering Section
497.
The Law Commission of India tried a thorough rectification of the IPC during one of its
efforts, providing in the 42nd report.
The Report presented a study of the position in France, England, and the United States of
America, as well as information on the authoritative history of Section 497. The Commission
promised to have discussions akin to the ones we are focusing on here, in which it was
questioned whether adultery as a whole should be made a crime as well as Section 497's
explicit mention of it. The Commission noted that "even though some of us were personally
inclined to recommend repeal of the section, we think on the whole that the time has not yet
come for making such a radical change in the existing position" after raising serious concerns
about the implied advantage of criminal activities for two-faced direct. The Commission
proposed the following changes: eliminating the female exception to the rule and reducing
the punishment from five to two years. The Report neither explains why the Commission
believed that abolition of adultery was radical nor does it provide any justifications.
The Amendment was never implemented, but the idea was carried out in a subsequent effort
to review the IPC, which resulted in the 156th Report of the Commission. The 42nd Report's
observations were reiterated here along with cited excerpts from the Supreme Court's ruling
in Sowmithri Vishnu v. Union of India1, where the Court stated that "any amendments to
Section 497 must emanate from the Legislature and not the Court. The Commission proposed
removing women's immunity from accountability while preserving the five-year sentence in
an effort to reflect the "'change' which society has undergone.
These modifications validated the removal of the prohibition on women initiating
indictments. Yet, this proposal never appeared in either the 41st Report (which led to the
1973 Cr.P.C.)14 or the 154th Report15, which examined the 1973 Cr.P.C., making the
legitimacy of any amendment somewhat dubious. As a result, many Committees have been
established to think through the concerns of criminal fairness and legal modifications. The
Report of the Malimath Committee's Committee on Reforms of the Criminal Justice System
was released in 2003.
It stated: "The goal of the Section is to protect the sanctity of marriage." It continued to
support the Law Commission's recommendations to not abolish the offence but to connect
liability for the sexes. Marital adultery is despised by society.
Hence, there is no justification for not treating a wife similarly who engages in sexual activity
with a man (other than her husband).
14 years have passed since the publication of this report, yet the Legislature has taken no
action to enact its recommendations. As a result, we discover that India subscribes to the
widely held belief that adultery laws are necessary to protect marriage's sanctity. Because
society dislikes monogamy and marital constancy, it can be argued that society despises
conjugal adultery, which supports the efforts of the state to suppress those who violate these
morals. The peculiarity of Indian law is the exclusion of women from responsibility, which
has consistently been attempted to be eliminated. The concept that only outcasts from
marriage must be discouraged through the criminal law is the result of the exemption in
favour of women paired with procedural limitations on who can commence actions.

1
Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137
HINDU LAWS ON ADULTERY AS A GROUND FOR DIVORCE
According to Section 13(1) of the Hindu Marriage Act of 1955, having voluntary sexual
relations with a person who is not the respondent's spouse constitutes adultery, which is a
basis for divorce in India. So, it is crucial for the petitioner to demonstrate that the named
respondent was truly married to him or her and that the respondent engaged in voluntary
sexual activity with someone else.

The spouse who wants to petition for divorce must support their claims with the appropriate
documentation. The requirement that adultery be established beyond a reasonable doubt has
been emphasised time and time again by Indian courts. The Supreme Court has been seen to
stray from these ideas recently, claiming that the requirement of proof beyond a reasonable
doubt only applies to criminal proceedings and not civil ones. In the Dastane v. Dastane
decision, the supreme court ruled that when personal ties are at stake, particularly those
between a husband and wife, there is unquestionably no need for proof beyond a reasonable
doubt.

Because the wife must establish adultery together with certain other aggravating
circumstances in the case of Ammini E.J. v. Union of India2, the Kerala High Court
determined that it is unfair to the wife and puts the husband in a better position with regard to
it being a ground for divorce. The woman may only seek for divorce on grounds of adultery,
the court further declared, and not on the basis of any qualifying offence like cruelty or
desertion.

Until the Marriage Laws of 1976 were passed, adultery was regarded as a gravely immoral
behaviour. Regardless of gender, it was a very shameful event, but it wasn't a reason to get a
divorce. The grounds for judicial separation and divorce are now the same as they were
before the 1976 Amendment, which represents a significant advancement in Hindu personal
law.

Adultery is a reason for judicial separation according to Section 10 of the Hindu Marriage
Act, 1995. The clause indicates that regardless of whether the marriage was solemnised

2
Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors AIR 1995 Ker 252
before or after the start of this act, the parties to a marriage may seek for a decree of judicial
separation upon any of the grounds listed in Section 13(1).

Both Sections 10 and 13 of the Hindu Marriage Act were in play in the dispute between
Sulekha Bairagi and Professor Kamala Kanta Bairagi. The spouse claims that she used to
ignore her responsibilities and frequently visited the home of the co-respondent, where she
was even caught in a lewd act. In this instance, judicial separation was granted after the
petitioner's case was decided in his or her favour on the basis of the presented evidence. The
aforementioned cases primarily attest to the fact that decisions in cases like these are made on
an individual basis based on the merits of that particular case.

MUSLIM LAWS ON ADULTERY

According to the Quran, adultery is a serious offence that carries a death sentence by being
stoned to death. Yet, this is not the case in the majority of democracies, where the
constitutions demand that citizens be treated with compassion. If the husband can
demonstrate that his wife had an adulterous relationship, he has every right to divorce her.
But, if her husband has made false claims, the wife can simply urge him to recant or file for
divorce under Chinese law. Nonetheless, the wife's claims still stand if the husband
withdraws them and apologises in the appropriate way. The Allahabad Court further clarified
that only such wives who are not guilty of adultery may utilise this as a reason for divorce in
the case of Tufail Ahmad v. Jamila Khatun3.

The Dissolution of Muslim Marriages Act, 1939 offers no respite because law specifies in
Section 2(viii)(b) that a woman may sue a man for cruelty if he leads an infamous life or
mixes with women of bad repute. This is the closest the current Muslim legal system comes
to the idea of adultery.

In Zaffar Hussain v. Ummat-ur-Rahman4, the plaintiff's wife claimed that her husband had
claimed in front of several people that she had illicit relations with her brother. The court
ruled that a Muslim woman may get a divorce on the grounds of being wrongfully accused of
adultery. Nonetheless, if the accusation of adultery is accurate, the wife is not permitted by

3
Tufail Ahmad v. Jamila Khatun AIR 1962 All 570
4
Zafar Hussain v Ummat Ur Rahman (1919) 41 all 278
Islam to request a divorce; however, a lawsuit may be brought in the case of an illegitimate
marriage.

CHRISTIAN LAWS ON ADULTERY

The Indian Christian Marriages Act of 1872 and the Indian Divorce Act of 1869 govern the
legal process for dissolving a Christian marriage and obtaining a judicial separation in India.
Legal separation on the basis of adultery is permitted by Section 22 of the Indian Divorce
Act, which otherwise prohibits divorce mensa et toro.

Divorce in India is handled in two different ways depending on whether one is filing under
the Hindu Marriage Act or the Indian Christian Marriage Act. They must first seek and get a
Church annulment before they may petition a court for a divorce decree. While the husband
simply had to prove that his wife had committed an adulterous act, the Act required the wife
to prove the presence of additional grounds in addition to adultery. Nonetheless, according to
Section 11 of the Act, the adulterer must be argued as a co-respondent.

Adultery was recognised as a separate issue by the Bombay High Court in the case of Pragati
Varghese vs. Cyril George Varghese5, which the court ruled was unfair to the wife. The
Kerala High Court ruled in Ammini E.J. v. Union of India6 that it is a violation of Section 21
of the Constitution of India to require a Christian woman to prove the crime of cruelty or
abandonment paired with adultery.

Christian women in India can pursue a judicial separation on the basis of adultery thanks to
the rules of the Indian Divorce Act. The husband and wife cannot get a divorce under Section
22 of the Indian Divorce Act, but they can get a judicial separation if one of them commits
adultery.
The adulterer must be named as a co-respondent under Section 11 of the same act. Legally,
there are only three exception to this rule:
1. The petitioner has no idea with whom the respondent has been having sexual relations, so
she must be living the life of a prostitute.

5
Pragati Varghese vs. Cyril George Varghese AIR 1997 Bom 349, 1997 (4) BomCR 551
6
Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors AIR 1995 Ker 252
2. Despite extensive attempts, the petitioner is still clueless as to the identity of the
adulterous.
3.The adulterer is dead.
The Gauhati High Court refused to affirm the respondent's acceptance of the divorce decision
based on adultery in the case Wenmard Marak v. Poiby Momin7 because the respondent had
failed to meet this criteria.
Separation by a court is permitted under the aforementioned statute alone for the reasons of
adultery, cruelty, or desertion, as stated in Section 22. As defined by this Act, "adultery" by a
husband includes sexual relations with any woman, whether she is married or single.

PARSI LAWS FOR ADULTERY

Any spouse who has committed adultery, fornication, bigamy, rape, or any other unnatural
offence is subject to a divorce petition under Section 32(d)8 of the Parsi Marriage and
Divorce Act, 1936. In addition, the clause specifies a two-year statute of limitations
beginning on the date the petitioner learned of the adulterous relationship.
According to the language of the clause itself, it applies whether a married person has sexual
relations with another married person or an unmarried person. One's spouse can be sued for
adultery, fornication, bigamy, rape, or any other unnatural offence under Section 34(d) of the
same Act. In this subsection, too, there is a two-year time limit.
Meherbai v. Hormasji9 ruled that even though the plaintiff's act could not be construed to be
adulterous with any particular individual, the facts and circumstances can lead to a strong
presumption that the plaintiff was generally up to mischief of adultery, and so the petitioner
was found guilty of adultery.

SPECIAL MARRIAGE ACT

Adultery is a recognised reason for divorce under the Special Marriage Act, 1954. This
means that if the respondent has voluntarily engaged in sexual activity with someone other
than his or her spouse after the marriage has been solemnised, the marriage can be dissolved.

7
Wenmard Marak v Poiby Momin AIR1988 Gau 50
8
Parsi Marriage and Divorce Act, 1936
9
Meherbai v Hormasji (1908) 10 Bom Lr 1019
Since adultery is now a crime in its own right, the Act makes it unnecessary to prove any
other crime before a court will grant a divorce or legal separation on the basis of adultery
alone.
While prima facie proof of the act of adultery may not be present and circumstantial evidence
will have to suffice, it was held in the case of Sari v. Kalyan10 that adultery may be shown by
a preponderance of evidence and need not be proved beyond reasonable doubt.

10
Sari v. Kalyan AIR 1980 Cal 374, 85 CWN 73
CRITICISMS OF THE LAW AND THE JUDGMENTS
• Violates the Indian Constitution's Article 14
The Indian Penal Code's Section 497, which defines adultery, is largely one-sided because it
doesn't allow the spouse to bring charges against the women her partner has adulterous
relations with, but it does allow the husband to bring charges against the man who has
committed adultery with his better half. The law has treated women as victims rather than as
those who committed the wrongdoing. The psychological concept that one is helpless,
powerless to escape the situation, and in need of an outside force to remove them from it
underlies this very notion of victimhood.
According to the Honorable Supreme Court, society should penalise "the 'outsider' who
enters the married house and violates the spousal sacredness by having an illicit relationship
with one of the spouses, with the proviso that the erring'man 'alone can be punished and not
the erring woman. The two spouses are not given the means to use the criminal law as a
weapon against one another. 54 In any case, the Court overlooks the fact that a spouse cannot
be prosecuted under criminal law while a husband receives a comparable arrangement. This
is because the spouse is not married. This could be seen as a violation of the fundamental
principles of natural justice found in our Constitution. Article 14 deals with equality or equal
treatment that is consistent with the norms of natural justice when read with paragraph 16(1).
• Section 497 is exempt from Article 15's application
The framers of the Constitution believed that no one would divorce on the basis of sex during
the 20th century. Nonetheless, it is obvious that the legislative body is unmistakably creating
sex-based segregation under the pretence of providing protected discrimination to women.
The special treatment provided to women under Article 15's clause 3 should only apply in
situations when there are particular characteristics or a physical disability that distinguish
women from men as a class.
As the American Constitution served as the foundation for the Indian Constitution's equity
provisions, disregarding that foundation amounts to not only violating established legal
precedent but also undermining core constitutional principles. According to the American
Supreme Court, "the very kind of arbitrary legislative choice is forbidden by the
Constitution" in situations where both genders are rising to balance and segregation to a
particular sex as a class would resemble denying the equivalent assurance proviso as
cherished in the constitution. Even the slightest favour given to women for "administrative
convenience" would be eliminated as it is both discriminatory and unlawful.
The situation becomes evident if we consider what our Constitution's creator was trying to
accomplish when she kept a clause like Article 15(3) in place. According to Prof. K.T. Shah,

“… this discrimination is in favour of particular classes of our society which, owing to an

unfortunate legacy of the past, suffer from disabilities or handicaps. Those, I think may
require special treatment; and if they do require it, they should be permitted special facilities
for some time so that real equality of citizens may be established. […] It is only intended to
safeguard, protect or lead to their betterment in general; so that long-range interests of the
country may not suffer.”11

The Constitution's purpose It is obvious that the statement's authors included it with the
intention of defending, ensuring, or encouraging the advancement of women, and they did not
intend for it to be used as a licence for aiding or abetting criminal activity. According to the
court, it is not acceptable to argue that adultery applies to both men and women because it is
a legal agreement. Women are not physically or socially arranged in such a way that they are
unprepared for submitting the offence of adultery, hence the law currently views only men as
wrongdoers as a class. Furthermore, as adultery is a crime committed by both genders
equally, laws of this nature are discriminatory and sexist, protecting women more than men.
The uniformity and equality requirement of the Indian Constitution is the sole thing that
Section 497 of the Indian Criminal Code violates.

11
Constituent Assembly Debates. Vol VII at 655
WHETHER SECTION 497 IS STILL RELEVANT?
The conditions under which the provision for adultery had been made in India have
drastically changed. Both the degree of male dominance and the old custom of keeping one's
wife as bonded labour are no longer prevalent in modern society. 90
Over time, monogamy has gained popularity while polygamy has been made illegal. There
were practically any effective personal codified laws in existence when the main penal code
of India was being established. Nonetheless, today's personal laws are equal, in force,
efficient, and effective in comparison to that age. This makes it clear that the legal concept of
adultery in marriage is far more expansive than the criminal term. Currently, polygamy is
thought to be unusual and to have more drawbacks. It is nearly impossible to engage in
polygamy or extramarital affairs without drawing civil action.
Women are no longer considered solely as their husbands' chattel and have started to forge
their own identities in society. It is therefore convenient to say that there is no reason to keep
adultery as a crime in the penal code because women are becoming more conscious of their
rights and stronger laws are coming to their help. Adultery can be punished as a civil offence
under our own laws.

WHY ADULTERY IS STILL PUNISHABLE?

Why is adultery still criminal is the core query. The arguments raised in the current context
for the deletion of the provision designating "adultery" as an offence in general and urging
for its decriminalisation in particular stem from the fact that neither the sexual relationship
nor the institution of marriage has a strong focus for penal statutes. The time when S. 497 of
the IPC was first drafted and the present day, where it is being used, show differences in the
context and level of "sexual morality" that prevailed in society at the two separate times.
Social values had a significant impact on the social and legal framework that governed
marriage and sexual relationships during the 19th century.
Adulterous behaviour was harshly discouraged by social values. Even widow marriages were
prohibited. The wife of a poor or inferior person was typically kept as security and a surety,
which was the typical method of exploiting the dominating class. Hence, the husband was in
a position to turn to the criminal laws in order to safeguard the person whose wife had been
taken away and a forced sexual relationship had been established with or without the wife's
agreement.
But, the situation now is different from what it was when the IPC's "adultery" penal provision
was first created in the middle of the 19th century. The social ideals around sexual
relationships have altered, leading to a much more liberal culture today. The poor class has
been subjected to less and less sexual exploitation. One thing needs to be kept in mind:
According to Indian law, adultery occurs when even the husband's wife consents to have an
adulterous connection with a man other than her husband. The offence would fall under S.
376 if the wife did not give her agreement to the adulterous connection, failing to meet the
requirements of Section 497 of the IPC. The permission of the woman is therefore a required
consequence for the crime of adultery. This brought up the old argument once more: Doesn't
it violate and seem irrational that the adulterer is always a man and the woman, even if she is
an aiding and abetting, shall not be prosecuted for the offence of adultery when the adultery
is a consented act between two persons of opposite sex who have a living spouse at the time
of adulterous act? These grounds strongly support the removal of the definition of "adultery"
from the penal code, however it may still be kept for the purpose of civil remedies.
CONCLUSION
There has been a significant shift in Indian culture; women are no longer viewed as the better
half's asset. The law as it currently stands violates the Indian Constitution, which guarantees
equality for all of its citizens and prohibits sex-based discrimination. The exception under
Article 15(3) for women cannot be expanded to include self-assured legislative monitoring of
such discrimination, such as on the basis of adultery. The IPC's Section 497, which deals with
adultery, ought to be declared void. Recommendations from the various Law Reform
Committees also provide insight into the fact that this section needs to be modified or
repealed. In light of the suggestions from the various boards and committees, the law makers
should swiftly revoke the current statute on adultery in order to provide Indian citizens with a
just measure in terms of equality. Also, in the current situation, marriage is considered to be a
common compact between two willing adults; the common law provides a sufficiently broad
definition of adultery. Since that many western countries have decriminalised adultery or
made it a common wrong, India's adultery laws also need to be updated.
Over all of human history, adultery has been frowned upon. In India, before 1976, an
adultery-based divorce petition could only be filed if the spouse was "living in adultery," but
today, an adultery-based divorce petition can be filed even if there has just been one
incidence of voluntary sexual activity outside of the marriage.
Courts in India have approved contentious divorces while taking into account a number of
social factors and the circumstances of the party seeking the divorce, including the existence
of children. It is not taken lightly when a petition is filed late, especially when there are
children involved.
There isn't a hard-and-fast guideline that applies to every instance of adultery. The court has
the authority to consider the merits and shortcomings of each case separately. Children,
society, family, and the partners' economic circumstances are a few such examples.
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