This site is under development, some of the functionalities may not work properly.
Post default

ADULTERY AS A GROUND FOR DIVORCE IN INDIA

By Arjit Narendra Srivastava June 24, 2016


Introduction

Adultery has many different synonyms such as unfaithfulness, infidelity, disloyalty, unchastity etc. and all these synonyms with respect to women points toward the same legal definition of this word under law as having the voluntary sexual intercourse between a married person that is a female spouse and a person who is not her spouse and that too without the consent of husband. However, the same word has been defined with different meanings in different countries and hence the legal definition of adultery varies from country to country and statute to statute such as in many countries adultery has been defined only as having voluntary sexual intercourse with a man other than the husband but in many other countries in addition to this definition the sentence “without the husband’s consent” is also used. In India, the offence of adultery as defined under section 497 of IPC prescribes punishment for men only and not for women even when they act as abettors. Hence, 42nd report of law commission of India, 2013 made underMalimathcommittee recommended to amend section 497 of IPC to make women also punishable for adultery.

What constitutes adultery

The following are the elements under section 497 of IPC which constitutes adultery: -

  • Firstly having sexual intercourse with a person.
  • Secondly, the person committing such an offence must know or must have reason to believe that the female lady is the wife of another person.
  • Thirdly, the person commits sexual intercourse without the consent of the husband of such a lady.
  • Fourthly, such a sexual intercourse must not amount to the offence of rape that is the lady with whom the sexual intercourse is being committed must be above the age of 16.

If these conditions are satisfied then only the person will be guilty of committing the offence of adultery.

Divorce through Adultery

Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of Hindu marriage act,1955 which states that any marriage before or after the commencement of this act shall be dissolved by a decree of divorce on the ground that the other party had voluntary sexual intercourse with any person other than his or her spouse after the marriage. The following are the cases on the basis of which adultery as a ground of divorce can be analysed: -

Earnest John White vs. Mrs. Kathleen Olive White and Others (AIR 1958 SC 441): -In this case the husband filed a decree of divorce on the grounds of adultery. Trial court granted the divorce decree but high court reversed the judgement of high court. The case went on appeal to the Supreme Court. The question before the Supreme Court in this case was whether just an inclination to have sexual intercourse and thereby leading to adultery would arise in this case or not by living in one room as the respondent and the appellant wife stayed in one room for a night. The court held that her conduct as shown by the evidence clearly justifies that she has committed adultery and therefore Supreme Court reversed the order of high court and thereby granting the decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285): - In this case the respondent that is the wife filed a petition for divorce seeking judicial separation against her husband. Accordingly the high court of Karnataka granted a decree for judicial separation and ordered husband to give maintenance charges to his wife and daughter. But the husband after two years filed a petition for divorce under section 13(1-A)(a)of the Hindu marriage act, 1955 on the ground that there has been no resumption of cohabitation between the parties for more than one year after passing the decree of judicial separation. Hence the question before the Supreme Court was that whether this can be taken as a ground of divorce even after the husband and the wife as in this case are living under the same roof even after the passing of the decree of judicial separation. The court held that husband who continued to live in adultery even after the passing of decree of judicial separation with his wife will not succeed for a petition of divorce under section 13(1-A)(a).

Punishment for Adultery

Punishment for adultery is mentioned itself under section 497 of IPC and accordingly the person shall be punished with imprisonment for a term of five years, or withfine, or with both. In this section wife is not punished even if she acts as an abettor in this crime and hence this is the big question before the legislators that whether wife should also be punished for adultery. However this question has been dealt in the Malimath committee report and legislations have been done but still not implemented.

Should women be prosecuted for Adultery

In my opinion, women should be equally punished for adultery as men and for that section 497 of IPC must be made gender neutral in India that is both men and women must be punished equally or no one at all. In today’s era women is nowhere less than men in any aspect such as getting highly reputed jobs, getting a top corporate or government job and hence if they are capable of being equal in every aspect then they must be punished in this respect also. If we see the law in other countries then there the wife is also punished such as in France, the wife is punishable for this offence for a minimum of three months to maximum of two years but the discretion is upon the husband whether he accepts her again as his wife or not and the adulterer is also similarly punished. But if we look at other countries such as Malaysia, Hongkong and Singapore there adultery is not punishable at all. In the most powerful country of the world that is U.S.A, there is no gender discrimination and either of them are punishable or not punishable at all. Hence it is high time that this law must be revisited in India and section 497 must be amended to meet present circumstances.  

Sources

THIS BLOG IS WRITTEN BY "ARJIT NARENDRA SRIVASTAVA"

3rd yea(BBA-LLB)

GALGOTIAS SCHOOL OF LAW, GREATER NOIDA

 

Tags: Adultery , punishment , divorce , cases , Earnest John White vs. Mrs. Kathleen Olive White and Others , Hirachand Srinivas Managaonkar Vs Sunanda , Punishment for Adultery , Should women be prosecuted for Adultery , section 497 of IPC , IPC , Section 497


Default avatar
By Arjit Narendra Srivastava
Licensed for years

Comments 0

Please Login or Register to Submit Comment


You may also want to read

Post default

Adultery ,   kerala women's code bill ,   Aircraft Act ,   East Punjab Agricultural Pests ,   Telegraph Act ,   Obscenity ,   Homosexuals ,   labour laws ,   Legal drinking age ,   legal age for marriage ,   Suicide Attempt

1. ADULTERY

The section provides expressly that a wife can not be prosecuted even as an abettor in case of Adultery. According to a decision of the Supreme Court bench of Justices Aftab Alam and R. M. Lodha said “ Section 497 of Indian Penal Code (Adultery) is under criticism for showing strong...

By Vaibhav Luthra July 18, 2016
Post default

organic revolution ,   GMO ,   genetically modified organisms ,   Bt brinjal ,   Nagoya Protocol ,   Biotechnology Regulatory Authority of India (BRAI) Bill ,   BRAI ,   liability ,   punishment

A graduate from Calcutta University who is scheduled to start her L.L.M (International Law) in Queen Mary University in London in 2014-2015 Session

There is an old saying that goes like this - “you are what you eat”. Today we definitely do not want to be what we eat, as “healthy” and “wholesome”...

By Shweta Mohandas July 27, 2016
Post default

Domestic violence ,   punishment ,   gender neutral ,   practical approach ,   NGO's contacts ,   safeguards

Introduction

The literal meaning of the word domestic violence basically means any violent or aggressive behaviour of any person within the home as the word here is ‘domestic’ or in other words a violent quarrel between a couple which may force a female spouse to file for mental harassment...

By Arjit Narendra Srivastava July 29, 2016