Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Legality of Extra Marital Affairs in India

Section 497 of the Indian Penal Code dealt with adultery. A man who had consensual sexual intercourse with the wife of another man used to be punished under the offense of adultery in India. However, this section of the Indian Penal Code was made defunct by an order passed by the Supreme Court on 27th September 2018. The Supreme Court called the law unconstitutional because it “treats a husband as the sole master”.

What the society considers as immoral is not necessarily punishable by the state. To prove adultery as a crime in the court of law, is extremely difficult. It would require proof beyond reasonable doubt of the parties complained against having actually committed sexual intercourse.

The Concept of Adultery under the Frame of Law

The concept of Adultery defines that “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 offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”

Under Section 497 IPC, a married woman could not bring forth a complaint when her husband engaged in sexual intercourse with an unmarried woman. The section also violated Article 14 and 15 of the constitution.

However, the historic judgment that struck down Section 497 and decriminalized adultery was grossly interpreted. People misunderstood it as if the law has sanctioned extra-marital affairs. The law does not and cannot legalize extramarital affairs.

Provisions of Amendment under Section 497 of IPC

In my opinion, adultery as an offense shouldn’t have been struck down. Instead, the Supreme Court of India should have amended section 497 IPC. The amendment could have made the section less biased. Provisions that could have been added:

  1. Under Section 497 IPC, a married woman could not bring forth a complaint when her husband engaged in sexual intercourse with an unmarried woman. Therefore, any married man having consensual sexual intercourse with a single woman could have been added.
  2. In the offense of adultery, any man who has “consensual” sex with the wife of another man gets punished. However, the wife does not get punished as an abettor. When the law says consensual, it means agreed by both the parties.
  3. Further, the section only talks about how any man should be punished for having sexual intercourse with the wife of another man. No legal remedies have been mentioned for those men who find their wives committing adultery. A survey stated seven out of ten women cheat on spouses in India. The law could add provisions for women committing adultery.

Legal Remedies Available In India With Respect To Extramarital Affairs

With respect to extra-marital affairs, couples in India can seek relief by the given options:

  • Although the Hon’ble Supreme Court has scrapped the law of adultery, it remains a valid ground for divorce. Every community has personal laws pertaining to divorce. The Hindu Marriage Act under Section 13(1) (i) and the Special Marriage Act under Section 27 (1) (a) have very precisely mentioned that a marriage can be dissolved by a decree of divorce on the ground that your spouse has committed adultery.
  • The Divorce Act, 1869 regulates divorce for Christians in India, and under Section 10 (1) (i) allows adultery as a ground for divorce. The statutory provisions for marriage and divorce of Parsis have been provided by the Parsi Marriage and Divorce Act, 1936. Section 32 (d) of the Act says that a couple can file a suit for divorce on the ground of adultery within a period of 2 years after the plaintiff comes to know about the fact.
  • Jewish law has no statutory provisions relating to marriage and divorce. A Jewish husband or wife can file a petition for divorce if either of them commits adultery. The petition can be filed merely on a concrete suspicion of the spouse being involved in adultery.

Under the Muslim Law, the husband can divorce his wife by repudiating the marriage without providing any reason for such divorce. He can divorce his wife who is involved in an extra-marital affair merely by saying words that signify his intention to disown the wife. However, a Muslim wife can divorce her husband, on the grounds of adultery, in the following three ways:

  • Talaq-i-tafweez- If the husband has delegated to her the power to divorce, then she may use such power to divorce her husband on any grounds including the ground of adultery.
  • Under section 2 (viii) (b) of the Dissolution of Muslim Marriage Act, 1939, which says that a Muslim wife can file for divorce if her husband associates with women of evil repute or leads an infamous life.
  • Lian- If her husband falsely accuses her of committing adultery.

Dimension of Judicial Separation

One can file a petition in court to obtain a decree of judicial separation on the ground of adultery committed by their spouse if they don’t want a Divorce.  After obtaining the decree, you will no longer be required to cohabit with your spouse.

The Hindu law, Christian Law, and the Parsi Law recognize judicial separation on the ground of adultery. Commitment is the soul of marriage. Disgracing your matrimonial bond is wrong religiously as well as morally. Being involved in an affair outside the marriage is to dishonor the relationship of your marriage and hence, should be criminalized.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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