Adultery Laws in India: What to do if your spouse is involved in adultery?
Adultery is a voluntary consensual relation that exist between a married person and who not his or her lawful spouse. It is legally wrong and is a punishable offense by law along with being a moral wrong.
Adultery is not only a crime in India but also a valid ground for divorce in all personal law of India.
It is regarded as illegal in some countries and certain laws have been passed to keep a check over adultery.
Law governing adultery in India:
Section 497 of the Indian Penal Code(IPC) provides adultery as an offence and as a consensual sexual intercourse between a man, may be married or unmarried, and a married woman without her husband’s consent or connivance.
It should be well noted that only a man can be prosecuted for the offence of adultery under the Indian Penal Code, 1860.
Procedure regulating criminal law in Section 198 of the Criminal Procedure of Code, a court cannot take matter relating to adultery unless the “aggrieved” husband makes a complaint.
Is adultery a crime for women under the Indian Penal Code?
No. adulteress “wife” is absolutely free from criminal responsibility.
A sexual act with consent between a married or unmarried man and an unmarried woman or a divorcee or a widow, therefore, does not come within the ambit of adultery.
Women cannot even be punished for “abetting” the offence. Adultery law assumes that the wife was a hapless victim of adultery.
It also holds not the adulteress wife of another man but only the man who has been unfaithful to her husband, solely responsible for the sexual liaison.
What are the valid pieces of evidence for proving of adultery in India?
Not statutory but still these presumptive grounds are accepted by the court to prove adultery.
- Circumstantial evidence,
- Contracting venereal disease,
- evidence of visit to houses of ill-repute,
- admissions made In previous proceedings,
- confessions and admissions of the parties.
- Mere suspicion is not sufficient.
What to do if your spouse is committing adultery?
- Ensure that the act is adulterous.
- Appointing private detective for evidence.
- After collecting evidence, one should contact a lawyer to be further sure that the evidence amounts to adultery.
- Approaching the court: In cases where a woman wants her husband to be penalised, she can file a case under section 497 of IPC read with Section 198 CrPC.
- Talk it out with your spouse. Go for Divorce through mutual consent or otherwise Divorce through contest.
Maintenance provided when divorce is on grounds of adultery:
If husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere, a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
The wife who is charged under the allegation of being indulged in the adulterous activity cannot be made liable to enjoy the ripen fruits of the Maintenance.
No wife shall be entitled to receive an allowance from her husband under this section if:
- without any sufficient cause or reason if she refuses to live with her husband or
- she is living in adultery, or
- they are living separately by mutual consent.
Yusuf Aziz v. State
In this case, the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory and valid under Article 15 (3) of the Constitution. Further, it does not offend articles 14 and 15 of the Constitution of India.
- Revathi v. Union of India and Ors
Here, the court held that that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her.
Sowmithri Vishnu v. Union of India and Anr
In this case, the court held that the contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.