LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

ramakrishna (Asst Manager Accounts)     01 July 2014

Divorce & live in relationship

Dear Sir,

I applied for mutual consent divorce but my wife want to withdraw the petition she want to prolong this (blackmailing me). 

Since two years i am alone i used to take out side food due to this i am getting health problems 

Meanwhile my sister in law (she is major) want to marry me after getting divorce decree from court. 

Now we are engaged with cohabitation. 

If we proceed like this will there be any problem to me and my sister in law ? and is this illegal activity ?

Am I applicable to any criminal case ?

Before divorce can i do like this ? Is it any criminal activity as per our indian law.

Will there be any problem to my parents and my sister in law parents.

My sister in law want to stay along with me in one home itself perminently. How to secure and protect our relationship.

If my wife withdraw the mutual divorce petition what is the further step to be taken ?

I want to continue the cohabitation due to health problems and to over come lonelyness so how can i  protect our relationship.

Request you to suggest me.


Thanking you,



 4 Replies

Laxmi Kant Joshi (Advocate )     01 July 2014

Ramkrishan stop living with your sil in seperate under the same roof , your brother can file a criminal case of adultery u/s 497 ipc against you and you will be put behind the bars for atleast 5 years , tell your sil obtain the divorce decree only then you can cohabit , you also obtain divorce from your wife first if she is not ready for mcd then go for contested divorce.

Kanchumati Subbarao (Consulting)     01 July 2014

Do not worry my friend, if your sister-in-law is unmarried , live in relation with your sister-in-law will not amount to adultry. call me  @ 970183 4140 I will provide many decisions regarding this,

Kanchumati Subbarao (Consulting)     01 July 2014

Women can't be prosecuted for adultery: Supreme Court


Only a man can be proceeded against and punished for adultery, but the wife cannot be, even as an abettor, the Supreme Court has ruled.

A Bench of Justices Aftab Alam and R.M. Lodha said, “Section 497 of the Indian Penal Code [which deals with adultery] is currently under criticism from certain quarters for showing a strong gender bias, for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for … adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor.”

Kalyani appealed against an Andhra Pradesh High Court judgment that dismissed her petition against registration of a case for adultery under Section 497 of the IPC and wrongful restraint under Section 341 of the IPC by another woman, Sailaja, who alleged that her husband was in an illicit relationship with her.

No case made out

Quashing the charges and allowing the appeal, the Bench said: “The mere fact that the appellant is a woman makes her completely immune to the charge of adultery, and she cannot be proceeded against is evident from a plain reading of Section 497…”

Kanchumati Subbarao (Consulting)     01 July 2014




“B” a boy has s*xual relationship with “W” a woman who is the wife of “M” a man. B the flirt knows it or he has reason to believe that W is the wife of poor M. M has neither given his consent nor connivance to B for such s*xual intercourse. Though such s*xual intercourse by B will not amount to rape, but B shall be guilty to the offence of Adultery. B shall be punished with imprisonment of either descripttion for a term which may extend to five years , or with fine, or with both. In such case the W wife shall not be punished as an abettor.



Adultery is defined and made punishable under section 497 of the Indian Penal Code, 1860.


In order to constitute the offence of adultery, following ingredients are essential :


1.           The accused ( B) had s*xual intercourse with a woman (W);

2.           The woman (W) concerned was wife of another man (M) having been lawfully married to him ;

3.           The accused (B) knew or had reason to believe that the woman(W) was so married;

4.           There was no consent or connivance on the part of the husband (M)  of the victim woman.



Hon’ble Supreme Court in V. Revathi –Vs- Union of India AIR 1988 SC 835   made observation that this section deals with the offence committed by an outsider to the matrimonial unit. Sec 497 is so designed that a husband can not prosecute the wife for defiling the sanctity of matrimonial tie by committing adultery. The law permits neither the offending wife nor the disloyal husband to prosecute each other. It is the outsider who violates the sanctity of the matrimonial home, is punished.


Hon’ble Supreme Court in Soumithri Vishnu –Vs- Union of India AIR 1985 SC 1618 : 1985 Cr.L.J 1302 in a petition which  challenged the constitutional validity of Sec 497 on the ground that this section makes an irrational classification between men and women because it :


1.           Confers upon the husband, the right to prosecute the adulterer, but does not confer any corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery;

2.           does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and

3.           does not embrace cases where the husband has s*xual relations with an unmarried woman.


The Supreme Court overruled the pleas and held that the definition of adultery does not discriminate between man and woman by conferring right only on husband to prosecute and that the section is not violative of Arts. 14 and 15 of the Constitution. It was further held that the section does not offend Art. 21 of the Constitution because there is no provision (in sec.497) for hearing the wife.



Regarding the proof of adultery the High Court in Kasturi-Vs-Ramaswami 1979 Cr.L.J  741  observed that Sexual intercourse being the gist of  offence, direct evidence of an act of adultery is extremely difficult to find. Direct evidence even when produced will lead the court to look upon with suspicion as it is highly improbable that any person can witness such acts which are generally performed with utmost secrecy.


Calcutta, Delhi, Rajasthan and other High Courts in unison voice observed that Direct proof of adultery is very rare. It has to be proved from a totality of circumstances.



Adultery is non-cognizable offence. So police can not investigate it without the order of the area Magistrate who is empowered to take cognizance and to try the case himself. An aggrieved person can directly approach the area Magistrate and file a private complaint, if he has sufficient evidence to bring home the charge alternatively the husband of the victim woman can make an application u/s 155(2) Cr. P.C for investigation by Police but Police can not arrest the accused without warrant issued by the Magistrate. The offence of adultery is bailable , so the accused has a right to get bail immediately. There is no prescribed time limit to complete the investigation. After completion of investigation the Police shall submit charge-sheet before the magistrate who shall take cognizance and proceed to hold trial either himself or through magistrate sub-ordinate to him. The conviction rate for the offence of adultery is very difficult to say but it can safely be said that it is very difficult to prove the offence. Standard of proof is same which is required in any other criminal case.

1)   No complaint petition by any aggrieved person- only husband of the petitioner could have filed the complaint. Proceedings against petitioner quashed. Criminal  Petition allowed.

n  Bapuju Narmada vs. State of A.P 2001(1) ALT (Crl) 297 (A.P).

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register