Adultery before marriage
Querist :
Anonymous
(Querist) 11 July 2011
This query is : Resolved
Can any legal action can be initiated against wife if the husband comes to know the wife has slept with people before marriage? Her conviction in the personal diary in her own writing can be submitted in the court as proof. What cases can be filed other than criminal Intimidation case against wife? The wife trapped the husband in criminal and civil cases who does not know the law. Not telling the truth to husband is a fraud.
Please share your views
Thanks
aman kumar
(Expert) 11 July 2011
adultery crime always against men not women/wife .... Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz , Sowmithri Vishnu and V. Revathi .
In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.
In the cases of Sowmithri and V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
It must be mentioned here that all of the above decisions of the Supreme Court had restricted their scope to the determination of Constitutional validity of Section 497 as it stands. They should not be taken as an authority over the question whether Section 497 is required at all.
Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.
Why Women Are Not Punished for Adultery
The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.
Querist :
Anonymous
(Querist) 11 July 2011
Dear Mr. Kumar
Thanks for your detailed reply. The law seems to be biased and strongly favors the unfaithful wife. Each case is different and can be fought on merits. Man becomes a husband after marriage and since the adultery happened when the girl was not wife.Starvation of love does not arise here. Adultery before marriage is not a crime as per supreme court but not telling the truth is a fraud. If wife commits a fraud by keeping the husband in dark and plays with the life of the husband, she must be booked under some section and should be prosecuted in the interest of justice. As most mystery set ups are resolved with the diaries. In this case the conviction is there which itself stands alone to tell the story. There is a difference between what is written in books and practically what happens in courts and being followed to reach logical conclusion. Court sees proof.
What do you think? I would like to hear from other guys as well. Share your inputs please.
Regards
prabhakar singh
(Expert) 11 July 2011
I THINK YOU ARE DESIROUS TO KNOW THE REMEDY AVAILABLE TO A HUSBAND IN A CASE WHERE A WIFE HAD PRE-SEXUAL CONTACT BEFORE MARRIAGE WITH PERSONS OTHER THAN HUSBAND, WHICH WAS CONCEALED AND WAS NOT TOLD TO HUSBAND,BUT POST MARRIAGE IT IS REVEALED TO HUSBAND FROM ADMISSIONS MADE IN THE DIARY OF WIFE BEING NOW IN POSSESSION OF THE HUSBAND!!!!
IF SO IS THE CASE,IT WOULD BE SECTION 5,11 AND 12 OF HINDU MARRIAGE ACT1955 THAT HAS TO BE CHECKED IF BOTH ARE HINDUS.
ADULTERY HAS NOTHING TO DO IN YOUR CASE AS YOU ARE TALKING OF PRE MARRIAGE SEX WITH PERSONS OTHER THAN HUSBAND.
I OPINE THAT THERE CAN BE ONLY CRIME CALLED "RAPE" WITH A unmarried lady in cases of un-consented sexual intercourse.AND IF THAT IS CONSENTED BY THE LADY CAPABLE TO CONSENT,THAT SHALL NOT CONSTITUTE ANY CRIME EITHER AGAINST OR BY HER.
HENCE IN MY OPINION Expert aman kumar HAS DISCUSSED ADULTERY NEEDLESSLY.
Querist :
Anonymous
(Querist) 11 July 2011
Dear Mr. Singh.
Many thanks for evasive reply.
You fairly understood the issue and commented well to the query.
Considering the fact both are Hindus
I guess the marriage can be considered as void and null under HMA Sec 5 (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two and under sec 11 and 12.
Looking at the answers given, I am thinking hard on the below:
A) Can a divorce petition filed on cruelty and the above adultery issue be converted as "VOID & NULLITY OF MARRIAGE"? Is there any additional petition need to be filed besides divorce petition?
B) Can any case be filed against such wife under Cheating & Infidelity in court of law by spoiling the husband's life?
Regards
A V Vishal
(Expert) 11 July 2011
Good observations by Mr Singh.
R.Ramachandran
(Expert) 11 July 2011
From the facts given, none of the provisions of Section 5 of the Hindu Marriage Act gets attracted.
No case can be filed against the wife, if she had slept with people before marriage. (Even Her own statement in the personal diary in her own writing will be of no use.) Only if he/she had indulged in such activities after marriage, then it will be a ground for seeking divorce and certainly not for any criminal case. Further more, not-telling the truth about pre-marital sex cannot be said to be fraud.
Therefore, the question of invoking Section 11 or 12 of the HMA, 1956 will not at all arise.
Fidility / infidility would arise only after marriage. Here it involves only pre-marital sex. It will not fall under the category of infidility.
In any case, one can definitely try for divorce on the ground of mental cruelty since husband may not fathom the fact that he did not get a virgin in marriage. But the outcome of the case cannot at all be guaranteed.
mahendrakumar
(Expert) 11 July 2011
since she was faithful to the husband after the marriage,I feel,she has not committed any offence as per any law.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 July 2011
first of all such cases are defficult to prove. And you are talking of pre marriage incidents = what medical evidence you will get and who will depose in your favour.
Regarding the provisions of law even reverse will also be true that is what about acts of men prior to marriage.
You want to be free lancer and want to punish it can not be allowed.
Querist :
Anonymous
(Querist) 12 July 2011
It is a good brainstorming session. I respect and appreciate every one's input. This world could be totally different if we all hold the same opinion :).Every one thinks differently and so are comments stated. In India woman is always considered as "SATI SAVITRI". This is not true any more as you can see now a days, the news are flooded with crimes from woman side and huge 498A false cases are being fought in courts even we all know a few are genuine cases.We can't apply general rule and have a biased opinion. Even you can see "No two Supreme court judgements are same" It depends on case to case and merits.
Can we think out of the box instead following the same conventional back up decisions? Court sees the proof. Writing can be checked by lab experts, Lie detector can be used, medical examination can be done for object able issues.
In fact, we can control the outcome to some extent depends which lawyer fights and how he presents provided that the case is fought for justice and to defeat the malafide intention.BTW, the wife was not faithful after marriage as well.
I welcome more thoughts in this matter.
mahendrakumar
(Expert) 16 July 2011
if she was not faithful, after marriage,it is altogether a different issue than a premarital case.
