(Guest)

Adultery

what is adultery as per hindu law . who can be proscecuted under this law. is it a disriminatory law?

2 Replies

A V Vishal (Advocate) 24 January 2010

Adultery is one of the ground of divorce under Hindu Marriage Act, 1955, Special Marriage Act, 1954, Indian Divorce Act, 1869. Under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 the clause is explained as ; Either of the spouse has, after marriage, had a voluntary s*xual intercourse with any person other than his or her spouse.

Under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and Indian Divorce Act, 1869 adultery is also a ground for judicial separation.

Adultery with regards the matrimonial laws it is a serious offence. The matrimonial offence of adultery is different from the criminal offence. In the matrimonial Court when a person accuses his spouse of adultery his or her main target is not the adulterer or adulteress, but the wife or the husband. Since both under penal law and matrimonial law, adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. What is also essential to establish in the matrimonial offence of adultery is that the s*xual intercourse was willingly indulged into by the parties. . If the wife can establish that she was raped by the co-Respondent then the husband would not be entitled to divorce.

The scope and ingredients of the criminal offence of adultery vary from country to country. Adultery may be committed by the wife or the husband.. In India Section 497 of the Indian Penal Code, 1860 runs :

Whoever has s*xual 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 s*xual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.
Thus under Section 497 of the Indian Penal Law :

an adultery can be committed only by a man and not by woman.
the person committing adultery must also know or should have reason to believe that woman with whom he had intercourse is the wife of another man, and
the s*xual intercourse should not amount to the offence of rape.

The Complainant husband can only vindicate himself if he can establish the above, otherwise his Complaint would fail.

What is most significant in the penal offence of adultery is that invariably the husband takes his vengeance against the third person, i.e. the adulterer : though in some jurisdictions he may also be able to reap it against the wife. But in most cases the main target of his vengeance is the adulterer.

The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even as an abettor. In the matrimonial Court when a Petition is filed for the matrimonial relief of judicial separation or divorce on the ground of adultery, the main relief is sought against the spouse and not against the adulterer, though, in most systems, adulterer, if known is a necessary party to proceedings and must be made a co-Party Respondent.