Adultery as an Offence Under IPC and a Ground for Divorce Under the Hindu Marriage Act

In the Hindu community adultery has always been considered an offence of grave nature. In the earlier times adultery was defined as the relation of a man with another man’s wife. Here, it is the marital status of the woman which mattered in determining adultery but the marital status of the man held no relevance. But in today’s date, adultery is consensual sexual intercourse between a married person and other person of opposite sex, not his/her spouse during the subsistence of marriage.

Under the legal umbrella of our country adultery has been discussed under the Indian Penal Code, 1860, as an offence and under the Hindu Marriage Act, 1955, as a ground for divorce. Section 497 of the IPC read with Section 198(2) of the Code of Criminal Procedure, 1973, (CrPC) defines Adultery as an offence for which the aggrieved party, the husband of the woman involved in the act, can file a case against the man who committed the offence, for which fine, or imprisonment which can extend to the term of 5 years, or both, can be awarded as a punishment. While Section 13(1) of the HMA defines adultery as a ground for filing for a divorce or dissolution of marriage, available to both the parties in the marriage.

Until 2018, adultery as an offence has been under the scrutiny of judicial review for being both pro-woman and anti-woman. The law excusing the woman from the offence, even though her contribution to the act is equal to that of the man makes it biased towards the woman and unfair to the man involved, but the implication that with the consent of the husband a woman can be subjected someone else’s desire makes it anti-woman in a grave ostensible way. In addition, the availability of the remedy available only to the husband of the woman involved in the offence but not to  the wife of the man involved in the relationship makes it equally unfair to the woman, implying the unapologetic independence of the man to do what he wants to do and the duty of the wife of the man to accept his decisions. With the petition filed by a non-resident keralite, the constitutionality of Section 497 of IPC was questioned and in the landmark judgment: Joseph shine v. Union of India, Section 497 was struck down on the grounds of being unconstitutional and violative of Article 14, 15 and 21 of the Indian Constitution.

With Adultery being declared not an offence, many questioned it’s validity as a ground for divorce. Under Section 13(1) of the Hindu Marriage Act both the parties in a marriage are granted the right to claim separation on the grounds of Adultery. The availability of this remedy to both the parties makes it a fair law to both the individuals in the marriage and allows fair and equal benefit to both the parties. The prerequisite like involvement with an opposite-sex person, other than the spouse are applied to both the parties without any bias towards either of the genders. In the eye of the law, everyone is the same. Since Section 13(1) checks all the boxes, it still stays as a valid ground for divorce. Hence, Section 497 of IPC is invalid while Section 13(1) of HMA is very much valid.

This article is authored by Pankhuri Pankaj, student of B.A. LL.B at Vivekananda Institute Of Professional Studies

Also Read – Why Supreme Court Discarded Sec 497 Of Indian Penal Code?

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