ACKNOWLEDGMENTS

I am using this opportunity to express gratitude to everyone who supported me

throughout the course of this project. I am thankful for their aspiring guidance.
I express warm thanks to Prof. A.K. Singh, his guidance for the completion of this
project as I believe it would not have been possible without his support.
I would like to thanks my professor and the people who provided me with the
facility required and conductive conditions for my Constitution Project.

Thank You,
Amartya Mishra
Roll No. 11.

TABLE OF CONTENTS
1. INTRODUCTION
2. GENESIS
3. INGREDIENTS
4. WIFE NOT AN ABETTOR
5. PUNIDHING HUSBAND
6. DEFENCES
7. BURDEN OF PROOF
8. RELATED CASES
9. REPORTS
10.
CONCLUSION
11.
BIBLIOGRAPHY

INTRODUCTION
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Adultery means voluntary sexual intercourse of a married person

other than with spouse. The legal definition of adultery however
varies from country to country and statute to statute. While at
many places adultery is when a woman has voluntary sexual
intercourse with a person other than her husband, at other places
adultery is when a woman has voluntary sexual intercourse with a
third person without her husbands consent. Though the modern
trend is to decriminalize adultery, historically, many cultures have
regarded adultery as a crime. Jewish, Islamic, Christian and Hindu
traditions are all unequivocal in their condemnation of adultery. In
most cultures both the man and the woman are equally
punishable. However, according to ancient Hindu law, in ancient
Greece and in Roman law, only the offending female spouse could
be killed and men were not heavily punished. In India the offence
of adultery is punishable under Section 497 of the Indian Penal
Code (IPC), 1860. As it stands, this Section makes only men
having sexual intercourse with the wives of other men without the
consent of their husbands punishable and women cannot be
punished even as abettors.
The Report of the Malimath Committee on Criminal Justice
Reforms and the 42nd Report of the Law Commission of India
recommended redefining Section 497 to make women also
punishable for adultery. The Central Government accordingly has
sought the views of all the 30 states in the country regarding the
implementation of the said recommendations. This paper
attempts to establish the redundancy of Section 497 in the light of
Personal and Matrimonial laws and changing social conditions
subsequently making a case against amending and for completely
deleting Section 497 from the IPC. 4 According to Section 497 of
Indian Penal Code, 1860, Adultery is defined as 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
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fine, or with both. In such case the wife shall not be punishable as
an abettor.

GENESIS
Adultery is one of the burning issues in India. It may not be a
serious crime but it does play chaos in the lives of the people
concerned. Our Indian society is more conserved and expects
faithfulness & loyalty of an individual towards his or her spouse. A
person who is committing an adulterous act is always aware of
the fact that he or she is violating the basic norms of the
institution of marriage & that of the society and credibility &
trustworthiness is being targeted. The project is all about the
effectiveness of the provision given in The Indian Penal Code, i.e.
section 497 of IPC. Adultery may not seem to be gravest of crimes
but it does bring out some of the direct consequences. The
individual committing adultery is always conscious of the fact that
if somehow his/her partner will come to know of his/her liaison,
he/she wont take it calmly, indeed that person will have to face a
lot of wrath & criticism by the family as well as the society. To be
vigilant against such a result, the felonious party may instigate a
fierce attack against his/her partner, resulting in a critical fault
such as abduction or even murder. Considering Indian laws and
the scenario of our society, adultery is definitely a crime in India.
Adultery is an invasion on the right of the husband over his wife.
In other words, it is an offence against the sanctity of the
matrimonial home and an act which is committed by a man. 1The
consent or the willingness of the woman is no excuse to the crime
for adultery.2

INGREDIENTS
1 Olga Thelma Gomes v. Mark Gomes, AIR 1959 Cal 451.
2 Gul Mohammed v. Emperor, AIR 1947 Nag 121
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To constitute an offence of adultery, the following ingredients must be established:

1. Sexual intercourse must be committed with the wife of another man;
2. The person must have knowledge or has the reason to believe that the
woman is the wife of another man;
3. Such sexual intercourse must be without the consent or connivance of the
husband;
4. Such sexual intercourse must not amount to the offence of rape.

WIFE IS NOT PUNISHED AS ABETTOR

Adultery under section 497, IPC is limited in scope as compared to the misconduct
of adultery as understood in divorce proceedings. As stated earlier, the offence is
committed only by a man who has sexual intercourse with the wife of another man
and without the latters consent or connivance. The wife is not punishable for being
an adulteress, or even as an abettor, despite being a consenting party to a crime.
She, as an abettor will get away with it.
YUSUF ABDUL AZIZ: In Yusuf Abdul Aziz3, the Supreme Court observed that
section 497, IPC is not ultra vires under articles 14. 15 and 21 of the Indian
Constitution on the ground that it is only the man, who is held liable for adultery
and not the wife with whom adultery is committed. The wife is saved from the
purview of the section and not punished as an abettor. Held sex is a reasonable and
sound classification accepted by the Constitution, which provides that the State can
make special provisions for women and children vide article 15 clause 3 of the
Constitution. The reason for not punishing a wife has been summarized by the
framers of the Code in the following wordsThough we well know that the dearest interests of the human race are
closely connected with the chastity of woman and the sacredness of the nuptial
contract, we cannot but feel that there are some peculiarities in the state of society
in this country which may well lead a humane man to pause before he determines
to punish the infidelity of wives. The condition of the women of this country is,
unhappily, very different from that of the women of England and France; they are
married while still children; they are often neglected for otherwise while still
3 Yusuf Abdul Aziz v. State of Bombay,1954 Cr LJ 886 (SC): 1954 SCR 930: AIR 1954
SC 321
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young. They share the attention of a husband with several rivals. To make laws for
punishing the inconsistency of the wife, while the law admits the privilege of the
husband to fill his zenana with women, is a course which we are most reluctant to
adopt. We are not so visionary as to think of attacking by law, an evil so deeply
rooted in the manners of the people of the country as polygamy But while it
exists, while it continues to produce its never failing effects on the respectability
and happiness of women, we are not inclined to throw inti a scale, already too
much depressed, the additional weight of the penal law.4

PUNISHING HUSBAND ALONE

The Supreme Court in, Yusuf Abdul Aziz, held that the section 497, IPC is not ultra
vires. It does not offend the articles 14 and 15 of the Constitution on the ground
that the wife with whom adultery is committed is saved from the purview of
section 497 and is not punished as an abettor. Sex is a sound classification accepted
in article 15(3) of the Constitution.

DEFENCES AVAILABLE TO ACCUSED

The following defenses are available to the accused of adultery:
There was not sexual intercourse.
The accused did not know the woman to be the wife of another;
The husband of the woman consented to or connived at the act of intercourse; or
The complainant was neither the husband of the woman nor any other person
permitted to prefer 8 such complaint under Cr.P.C.
The punishment for adultery is the imprisonment for five years, or fine or both.

BURDEN OF PROOF
It is very difficult to produce direct evidence to prove an act of adultery.
Adultery is a matrimonial offence as well as a criminal offence.
4 Draft Penal Code, NOTE Q, pg. 175
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The requirement of proof in a criminal case is stricter than the requirement in a

matrimonial case.
In the former case the act is to be proved beyond reasonable doubt, whereas in the
latter the evidence is based on the inferences and possibilities. Thus the offence of
adultery may be proved by: Circumstantial evidence.
By evidence as to non-access and birth of a child.
By evidence of visits to brothels.
By contracting venereal diseases.
Confession and admission to parties.
Preponderance of probability.

RELATED CASES
1. Muniraj Sahu vs Rambahor Sahu passed
on 21 February, 2012
In this case, the respondent alleged that Bitti Bai(wife) though married with
the respondent, was residing with applicant and a marriage took place
between the applicant and Bitti Bai and therefore, he prosecuted a criminal
case for offence punishable under Sections 495, 494 of I.P.C against Bitti
Bai and applicant. The complaint filed by the respondent and divorce
application filed by the respondent were dismissed by the Courts on the
basis that the respondent could not prove the marriage of the applicant and
wife of the respondent.

2. W.Kalyani vs State TR.Inspector of Police & anr5

In this case, the appellant, though she is charged under Sections 497 of the
Penal Code, she cannot be punished under it. The provision is currently
under criticism from certain quarters for showing a strong gender bias for it
makes the position of a married woman almost as a property of her husband.
5 2011 STPL(Web) 1023 SC
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But in terms of the law as it stands, it is evident from a plain reading of the
11 Section that only a man can be proceeded against and punished for the
offence of adultery. Indeed, the Section provides expressly that the wife
cannot be punished even as an abettor. Thus, the mere fact that the appellant
is a woman makes her completely immune to the charge of adultery and she
cannot be proceeded against for that offence.

3. V. Revathi by Thakkar J6
It was observed in this case: The argument in support of the challenge is
that whether or not the husband has the right to prosecute the disloyal wife,
the wife must have the right to prosecute the disloyal husband. Admittedly
under the law, the aggrieved husband whose wife has been disloyal to him
has no right under the law to prosecute his wife, inasmuch as by the very
definition of the offence, only a man can commit it, not a woman. The
philosophy underlying the scheme of these provisions appears to be that as
between the husband and the wife social goods will be promoted by
permitting them to 'make up' or 'break up' the matrimonial tie rather than to
drag each other to the criminal court. They can either condone the offence in
a spirit of 'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing divorce.
They are not enabled to send each other to jail.
Perhaps it is as well that the children (if any) are saved from the trauma of
one of their parents being jailed at the instance of the other parent. Whether
one does or does not subscribe to the wisdom or philosophy of these
provisions is of little consequence. For, the court is not the arbiter of the
wisdom or the philosophy of the law. It is the arbiter merely of the
constitutionality of the law.

4. Earnest John White Vs Mrs. Kathleen Olive White and

Others7
6 AIR 1988 SC 835
7 1958 SCR 1410: AIR 1958 SC 0441
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Husband filed dissolution of marriage on the ground of her adultery. Trial

Court had granted the divorce and High Court had reversed the decree of
divorce. Appeal before Supreme Court and Supreme Court held that: 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. 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. As adultery has been proved the court allowed this
appeal.

5. Hirachand Srinivas Managaonkar Vs Sunanda8

The appellant is husband of the respondent. On the petition filed by the
respondent 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. 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 has not been complied with by the appellant and the respondent has
not received any amount towards maintenance. Thereafter, the appellant
presented a petition for dissolution of marriage by a decree of divorce on the
ground that there has been no resumption of cohabitation as between the
parties to the marriage for a period of more than one year after passing of the
decree for judicial separation. The respondent contested the petition for
divorce on the ground, inter alia, that the appellant having failed to pay the
maintenance as ordered by the Court the petition for divorce filed by him is
liable to be rejected as he is trying to take advantage of his own wrong for
getting the relief. The High Court accepted the plea taken by the respondent
and refused to grant the appellants prayer for divorce. The said order is
assailed by the appellant in this appeal by special leave.

8 AIR 2001 SC 1285: 2001(2)SCR 491 : 2001(4) SCC 125 : 2001(2) SCALE 514 :
2001(3) JT 620
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Decriminalized Adultery
Marriage is both, a sacrament and a civil contract and the society has certain
notions about the same. Yet, it is not a standard form contract. The spouses
are and should be at a liberty to choose their own terms of the contract.
Therefore, whether they allow each other to have or maintain sexual
relations with third parties should be at the sole discretion of the parties
alone. The National Commission for women recommends that adultery
should be made merely a civil wrong and the Supreme Court impliedly
agrees that husband and a wife should not strike each other with the weapon
of criminal law. Making provisions in Penal law to regulate civil contracts
and particularly the contract of marriage, which is private and personal, is
unwarranted. Punishment to the person committing adultery is not and
cannot be a remedy for a person aggrieved11 of adultery.
The object of prosecution for adultery is more often to reach a settlement
with the offender at the mercenary level and seldom to send the offender to
jail. In fact, this was the very reason why the offence of adultery did not
figure in the very first draft. To this extent, the conditions are not
appreciably different even today. The existence of Section 497 has no
apparent effect on society. Acknowledging this most western countries, have
decriminalized adultery. It is not a crime in most countries of the European
Union, including Austria, the Netherlands, Belgium, Finland, Sweden and
even Britain from whom we have borrowed most of our laws. In the United
States, in those states where adultery is still on the statute books, offenders
are rarely prosecuted.

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REPORTS IN THE RECENT PAST

Amending the outdated adultery law based on the presumption of wife being the
property of the husband, introducing a separate legislation for dealing with honor
killings and removing the gender discrimination inherent in laws that stipulate a
lower legal age of marriage for a girl these are some of the family law reforms
suggested by the government-appointed high-level panel.
The report of the committee, which has also asked for a ban on triple talaq and
polygamy, will be placed before the Supreme Court which is hearing a petition
filed by an Uttarakhand-based Muslim woman appealing against her triple talaq.
The year-old report reviewing the status of women in India, which was never made
public, also suggests a slew of other reforms.
It calls for an overhaul of the archaic Section 497 of the Indian Penal Code
on adultery which can be only used by the husband against the person who
has sexual relations with his wife. The panel has also called for definition of
the term cruelty as it cannot be completely left to the interpretation of the
courts. 9
It is high time that either the woman should be brought within the purview of
section of 497 and punished as an abettor under section 108 of the IPC or section
497, IPC should be deleted from the statute book as in case of England, and most
of the European countries and in case of Malaysia and Singapore.
When the law was written 150 years ago, women were seen as oppressed class
in need of protection. But what kind of protection is this which deemingly regards
them as a mans property. Let both the partners to the crime share the blame
equally as in case of Germany, France and Jammu and Kashmir under the Ranbir
Penal Code.

9 http://indianexpress.com
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CONCLUSION
In most of the foreign jurisdictions, adultery, apart from being a ground for
divorce, has been perceived as a criminal wrong against marriage. Similarly,
in these jurisdictions, both the spouses are generally held criminally
responsible for their extramarital sexual intimacy.
However, the penal law of adultery in India is premised on the one-and-ahalf century old caste based stratified "social setting" in the context of the
traditional conservative property-oriented familial ideology and sexual
mores. It is also premised on a few outdated and moot assumptions of
sexuality, sexual agency and unequal mutual marital rights and obligations
of the spouses. It, in ultimate analysis, unmistakably intends to protect the
rights of the husband and not of the wife. It is also bridled with deep-rooted
obsolete assumptions predominantly premised on gender discrimination and
the wife's sexuality. Such a law in the 21st century undoubtedly seems to be
inconsistent with the modern notions of the status of women and the
constitutional spirit of gender equality. During the post-IPC period, a
number of Acts have been enacted to relieve women from the hitherto
traditional system of seclusion and subordination and to assure them a status
equal to men in every walk of life.
The existing gender discriminatory penal law of adultery, against this
backdrop, deserves a serious relook and revision to the effect that a person,
male or female, who, being married, has sexual intercourse with a female or
a male (as the case may be) not his or her spouses without the consent or
connivance of such spouses be made criminally responsible. Similarly, the
spouse of the errant spouse be allowed not only to seek divorce from the
other life partner but also to initiate legal proceedings with a view to fixing
criminal liability of the "outsider" for wrecking the marriage. The latest
proposals for reform of the Fifth and the Fourteenth Law Commissions of
India deserve serious and immediate attention of the legislature. Such
changes are required to translate the contemporary "social transformation"

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assuring equality to women and the constitutional spirit of gender equality

into a reality.

BIBLIOGRAPHY
Sites referred:
1.
2.
3.
4.

www.advocatekhoj.com
www.youthkiawaaz.com
www.legalserviceindia.com
www.indianexpress.com

Books referred:
1. K.D. Gaur Fifth Edition.
2. Ratan Lal and Dhiraj lal- IPC.

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