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Is Adultery a criminal offence in India?

English हिंदी বাংলা मराठी தமிழ்తెలుగు

Introduction

Adultery is a crime against marriage. In simple language, adultery is having sexual relationships with a person other than one's wife or husband. In India, it is also popularly known as an extra-marital affair.

Adultery used to be a criminal offence under Section 497 of the Indian Penal Code, 1860.

However, following the Supreme Court's decision in Joseph Shine v. Union of India in 2018, one's act of adultery was not anymore classified as a criminal offence because it went against Articles 14, 15, and 21 of our Constitution, and was outdated, unfair, and overbearing.

The court also said the law took away a woman's freedom, self-respect, and privacy, and only punished married men.

Adultery is at present a private crime that may be used by a husband and wife to get a divorce.

Adultery Meaning

Adultery is when a married man or woman takes part in physical relationships with the other person, married or single.

According to Section 497 of the Indian Penal Code (IPC), adultery is when a man has a sexual relationship with a married woman. Adultery is not applicable to women in India. Adultery is not the same as rape because in rape, the woman's consent is not there. Adultery is a consensual act between two separate married parties.

To constitute adultery, an act must include the following:

Sexual intercourse
Heterosexual relationship ( A heterosexual person is a person who feels a sexual attraction to people of the opposite gender.)
Consensual
They both are married.
The man has reasons to believe the woman is married

Limitations to the crime of adultery

If the action took place consensually, i.e. both husband and wife did not have problem with having a sexual relationship with a third person, then it is not adultery.
If the sexual relationship happens without the person's permission, then it is rape not adultery.

Illustrative image showing 3 person sitting on a chair

Adultery under personal Laws

Under Hindu Personal Laws

Ancient texts like the Smritis and Dharmasutras prohibit illegal sexual relations and prescribe punishment for both parties involved. Based on these texts, the Hindu Marriage Act, 1955, recognizes adultery as a valid reason for divorce.

According to Section 13(1)(i) of the Act, if either the husband or wife has sexual intercourse with someone other than their spouse after marriage, the other partner can file for divorce. This means that both Hindu men and women can seek divorce on the grounds of adultery.

Under Muslim Personal Laws

In Muslim law, marriage is seen as a contract. The purpose is to allow legal sexual relations, have children, and make those children legitimate. Adultery is a serious wrongdoing as given in Quran Surah Al-Isra Verse 32.

The Quran condemns it and says wrongdoers should be punished under Quran (4: 15-16). If a husband falsely accuses his wife of adultery, she can get a divorce.

According to Section 2(viii)(b) of Dissolution of Muslim Marriage Act, 1939, a Muslim woman can also get a divorce if her husband is involved with a disreputable woman.

This behavior can be seen as cruelty, giving the wife a reason to seek divorce. While adultery is not specifically mentioned as a ground for divorce in Quran, it is interpreted through this section that if a muslim man indulges in adultery, his wife may use it as a ground of cruelty under section 2 (viii) and ask for divorce.

Under Christian Personal Laws

In Christianity, marriage is considered a sacred bond that should not end in divorce. The Bible (Deuteronomy 22:20-24) says that adultery is a serious sin that breaks the trust in marriage.

Both the Old and New Testaments state that those involved in adultery should be punished. Therefore, adultery is seen as a major offense that damages the holy bond of marriage.

What proof or evidence can a person present to prove adultery?

Because adultery can be a ground for divorce, proper proof and evidence is required to be submitted before the Hon'ble Court. Such evidence may include:

There are two kinds of evidence- direct evidence (for example- a video proof) or circumstantial evidence. Circumstantial evidence indirectly suggests that something happened but doesn't directly prove it. For example- romantic text messages between a married person and someone who is not their partner

According to the principles of the Evidence Law, judgment can be made based on direct evidence as it has a higher value.

If the case has only circumstantial evidence, the court waits for the petitioner (person who files a complaint in the court against someone) to present direct evidence but cannot go on to decide the matter solely based on the circumstantial evidence.

However, in the case of adultery, direct evidence is difficult to get. But if the circumstantial evidence is sufficient, the court may consider it as valid proof. It can be proved before the court by presenting pieces of evidence like:

Circumstantial evidence- text messages, hotel receipts where some other person who is not their partner has checked in late night, neighbors or friends who saw the married person and another individual behaving affectionately in public places, married person's frequent visits to someone else's home late at night, unexplained absence from house etc.
Proof that the spouses did not have access to each other, along with the birth of children.
Evidence of visits to places known for immoral activities
Evidence of contracting a sexually transmitted disease
Admissions made in previous court cases.

There must be clear circumstances showing that the opportunity for adultery existed, such as the parties being together in situations where adultery could reasonably be assumed to have happened.

Steps to Take Legal Action Against a Spouse (Marital Partner) for Adultery in India

Collect Evidence:

Gather proof that suggests adultery, like text messages, photos, hotel receipts, or witness statements.
Remember, direct evidence is hard to get, so focus on strong circumstantial evidence.

Consult a Lawyer:

Find a family lawyer who can help you understand your rights and the legal process.
Discuss your evidence and get advice on the best course of action.

File a Divorce Petition:

Your lawyer will help you prepare a divorce petition, stating adultery as the reason.
Submit the petition to the family court in your area.

Serve the Divorce Notice:

The court will issue a notice to your spouse, informing them about the divorce petition.
Your spouse will be given a chance to respond to the notice.

Court Proceedings:

Attend court hearings where both sides will present their evidence and arguments.
The court will review the evidence, including any circumstantial evidence you have collected.

Wait for the Judgment:

The court will decide if the evidence is enough to prove adultery.
If the court is convinced, it will grant the divorce based on adultery.

Post-Judgment

After the judgment, follow any court orders regarding alimony, child custody, or property division.
If you are unhappy with the court's decision, discuss with your lawyer the possibility of an appeal.

The legal process can take time, and it's important to stay patient and work closely with your lawyer throughout.

Frequently Asked Questions (FAQs)

1. Is adultery classified a punishable crime in India?

It is not a criminal offence for citizens, according to the Supreme Court's decision in the Joseph Shine case. However, it can be taken as a ground for cruelty.

2. In what way may adultery be proven in the court of India?

It can be proved by both direct and circumstantial evidence. Direct evidence can be a video recording, or if a wife becomes pregnant while her husband was not around during that time, it raises a strong suspicion of adultery.

Circumstantial evidence can be anything that suggests that another partner is involved in adultery. For example- visiting a different home late at night frequently, romantic texts to a person who is not their spouse etc.

Physical proof of adultery can include the wife becoming pregnant when her husband did not have contact with her or the wife having a sexually transmitted disease.

3. What should be done when the spouse is living with someone other than their married partner?

In such cases, the victim spouse can apply for divorce in a family court based on adultery and absence.

4. Is a single action of adultery enough reason for divorce?

Yes, many decisions made by different high courts have said that showing one instance of adultery against the accused partner by the arguing party is enough.

References

Written by Arshita Anand

Arshita is a final year student at Chanakya National Law University, currently pursuing B.B.A. LL.B (Corporate Law Hons.). She is enthusiastic about Corporate Law, Taxation and Data Privacy, and has an entrepreneurial mindset

Is Adultery a criminal offence in India?

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Introduction