By Shreeya Pathak from Llyod Law College, Greater Noida
The law of adultery as it further stands in our country, India, penalizes or punishes only the man, and presumes or assumes that in all the matters ‘ man is the only culprit ‘ and the woman, who is an equal party or companion or member or the participant is viewed as an innocent or a victim. The term ‘ Adultery ‘ started from the terms ‘ ad ‘ which mentions ‘ towards ‘ and the ‘ altar ‘ which mentions ‘ other ‘ , amalgamated or combined within the Latin words or terms “ Adulteriumi “ .
Adultery indicates or introduces or refers to an intentional or wilful or voluntary sexual participation between an individual who is already married and someone who is not the spouse or companion or mate of that person. Adultery is taken into a report or an explanation as legitimately wrong and could be a blame worthy or punishable crime or an offence. The move or act of Adultery could be an offence which ruptures or breaches the vows or assertions of wedlock or wedding and is unfavourable or have a negative impact to the value and morals of the citizens or public.
In the common law, an act of Adultery was illegal or illegitimate intimacy or intercourse between a woman and any man apart from her spouse.
- What is Adultery?
The extra marital sex is known as Adultery , that is examined as wrongful or objectionable on the ground of social , religious , legal or values and morals of the culture.
A single virtual action or move of physical or sexual intimacy or intercourse is mostly or ordinarily plentiful or satisfactory to aggregate or constitute Adultery, and sometimes a long term physical relationship is termed as an affair.
In an ancient period, many traditions considered Adultery a very heinous offence or crime, some matter of subject to strict and serious penalty or punishment , commonly for the woman and sometimes for the man also, with punishments like capital punishment, mutilation or torture. Such penalties or punishments have eventually decayed or fallen into disapproval or disfavour , especially in the modern nations or countries from the 19th century. The penalties or punishments rise or range from fine to caning and even the capital penalties or punishments, in the nations where an Adultery is still an offence or crime.
The most western or modern nations or countries legitimise or permit Adultery, that have become a very controversial topic in regards with the criminal laws against an Adultery, since the 20th century.
- WHAT DID THE LAW ON ADULTERY SAY?
The law stated that the woman could not be held liable or punished as an abettor . Instead, the man was examined or considered to be a seducer. The law also did not grant or acquiesce women to file a complaint against an adulterous or illicit husband. A man alleged or accused of being an adult could be sent behind the bars for a maximum of five years , and made to pay a fine, or both.
Under the law of India, section 497 of Indian Penal Code, makes Adultery an illegitimate crime or criminal offence , and imposes a punishment of imprisonment up to 5 years and fine. As in comparison to the misconduct of Adultery as inferred in the proceedings of divorce, as, the crime of Adultery under the Indian Penal Code section of 497 has a very limited scope. The crime or offence of an Adultery is done only by a man who had sexual relationship with the wife of another man without the latter’s acquiesce or consent or connivance. The wife is not held liable for being an adulteress , or even as an abettor of the crime.
The term “ person aggrieved ” comes under the section of 198 Criminal Procedure code with sub section ( 2 ) states that the husband of the woman as allowed or assumed to be aggrieved by the crime committed under section 496 of Indian penal code and when the husband is not present, some person who had care of the woman on his favour or behalf at the time when such crime or offence was held committed, with the court’s permission and decision. It does not examine or consider the wife of the adulterer as an aggrieved individual or person.
Section 497 of Indian Penal Code and section 198 ( 2 ) of Criminal Procedure code together establish or constitute parliamentary packet to deal with the crime of Adultery which have been adhered illegitimate or unlawful and battered down by th3 supreme court of India in the Matter of Joseph shine v. Union of India.
- GROUNDS FOR MATRIMONIAL RELIEF –
Adultery is a severe matrimonial cease or lapse and even the most enlightened or liberal of societies view thus as excessively detrimental or dangerous to an amicable relationship of marriage. No doubt the rules and regulations or law takes insights or observations or cognizance for relief in the marriage to the oppressed or disturbed party.
Varies from Act to Act, Adultery of a companion or a partner or spouse designates the other to look for judicial separation or Divorce, through the unwritten or verbal code or formula to prove alternation from wedded devotion or loyalty or fidelity as a landscape or ground for alleviation or relief , under almost all the personal law measures or statutes in our country , India. Also, a wife living in Adultery is prohibited or disentitled to claim maintenance under the Crpc, Code of Criminal Procedure, Section 125 vide sub clause (4) of this section. However, there has to be a vide and clear evidence or proof of Adultery and also, that the wife has not only attached or committed adultery but is living in an Adultery.
Even under the Hindu Adoption and Maintenance Act, 1956, Sections 18 (2), a wife who is alloyed or unchaste is disowned or debarred from claiming maintenance for separation from her husband ( spouse ) .
- IN ( HMA ) , HINDU MARRIAGE ACT, 1955 – ADULTERY –
In the section 13 ( 1 ) ( I ) of the Hindu marriage act, 1955 , in our country, India, Adultery as a ground for divorce is cherished or preserved or enshrined ;
In the section 13 Divorce – ( 1 ) – It is mentioned that any marriage dignified or solemnised , whether before the commencement of the act or after the commencement of the act, may , on a petition conferred or presented by either the husband or the wife, be dissolved by a decree of the divorce on the ground that the other party ( husband or wife ) — ( I ) has, after the solemnisation of the wedlock had voluntary or wilfully physical relationship or sexual intercourse with any person other than his or her spouse or ;
In Hindu marriage act, 1955, Adultery refers to voluntary or wilfully sexual undertaking or activity with the other individual , apart from his or her married life partner or spouse. In Hindu marriage act, 1955, divorce or judicial separation is one of the grounds in Adultery. The term ‘ Living in Adultery ‘ was used earlier before the pre – amendment in the HINDU MARRIAGE ACT, 1955 , and was changed or replaced further by the term ‘ Adultery ‘ . The usual fulfilment or indulgence must be demonstrated or proven earlier before the pre amendment in the Hindu marriage act, 1955 but after that, only a single action or act of Adultery is enough or adequate or sufficient. Only the situational proof or circumstantial evidence is adequate , there is no need of Direct proof or evidence.
- DEFINITIVE STANDARD PROOF IN THE CASE OF ADULTERY-
The strain or difficulty or burden of justifying or proving Adultery in the case of marriage or in the matrimonial case is on the person who creates the accusations or allegations. The standard of proof or evidence in “ proceedings under the act being initially of a civil nature is by prevalence or preponderance of probabilities and not by justifying or proving it beyond the reasonable doubt ”. The Adultery charge or we can say the charge of Adultery in the absence of any direct proof or evidence can be generally proved by producing probable or presumptive proof or evidence like :-
- Circumstantial proof.
- Proof of non access and the children’s birth
- Contacting venereal diseases.
- Proof of visits to brothels.
- Confessions and admission to parties.
- Preponderance of presumption or probability.
- A WAY FORWARD TO LOOK INTO-
Marriage should assist or sustain on the ground and the strength or power of mutual trust, respect and the love, not out of the threat or fear of a bar term. Modernizing the Adultery law or the law on Adultery was fundamental or essential n to live up to the commitment of the equality considered and offered by the constitution of India. There is the need for the validity of our constitution, that all archaic laws in our country, India , should be revisited from time to time.
Also the opinion on judiciary that the section of crpc, criminal procedure code, 198 (1 ) read with the section 198 ( 2 ) , excluding the wife of an unfaithful or untruthful husband for summoning or prosecuting him for his immoral or promiscuous behaviour , with all due respect, is not logical and not convincing at all. It states that a man is entitled to own exclusive dominion or custody or possession of, and access to, the sexuality of his wife, and a woman isn’t acceptable or eligible to gain such a right and claim over her husband.
Notwithstanding, several major or serious changes in social life and therefore the seriousness among the types of relationships in our country, India, has emerged . The courts of India have frequently upheld the validity of the constitution in section 497, evidently or officially to stay women out of the concept or purview of Criminal law. It is evident or accessible or obvious that no Adultery may be committed unless a woman may be an acquiesce or consenting companion or partner.
By including both companions or the partners within the area of its scope, the principle of equality before the law or rules and regulations could depend upon or require the alterations or improvement of the law on Adultery. It is obvious that laws or rules and regulations are invented or created or designed to safeguard or protect and empower the women , to change the outlook of society in a society of patriarchy.
From time to time, the Apex Court thus did not take new or contemporary observations or judgements or insights of this law of Adultery on gender bias.
It is claimed or asserted that adultery is for the legislature to take steps of transformation for society. It is even more exciting or surprising, that the Apex Court has not waver or hesitated in regularly or steadily growing or expanding the scope of Art.