Legal provisions regarding Adultery under section 497 of Indian Penal Code, 1860.
Adultery:
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“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 offence of rape, in guilty of the offence 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 case the wife shall not be punishable as an abettor.”
The ingredients of the offence of adultery under Section 497 are:
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i) The accused had sexual intercourse with a woman;
ii) Such woman was married;
iii) The accused knew or had reason to believe it;
iv) The connection was held without the consent or connivance of the husband.
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v) The sexual connection so held does not amount to rape.
No Court shall take cognizance of the offence under Section 497 except upon a complaint made by the husband of the woman or, in his absence, made with the leave of the court by some person who had care of such woman on his behalf at the time when such offence was committed.
Provided that where such husband is a minor under the age of 18, or is an idiot or a lunatic, or is from sickness or infirmity unable to make complaint, some other person may, with the leave of the court, make a complaint on his behalf.
The offence under Section 497 is non-cognizable, but a warrant should ordinarily issue. It is both bailable, compoundable and is triable by a magistrate of the first class.
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Section 497 punishes the offence of adultery committed with a married woman without the consent or connivance of her husband. The main feature of the offence of adultery is that the male offender alone has been made punishable.
The offence of adultery does not constitute an offence of adultery if one has sexual intercourse with a widow or an unmarried woman. Even in the case of married woman the adulterer is not liable if the husband consents to it.
In a prosecution for the offence of adultery, the factum as well as the legality and the validity of the marriage between the complainant and the woman involved must be strictly proved beyond reasonable doubt.
The mere statement of the complainant or that of the woman concerned that they are married to each other is not sufficient to sustain a prosecution under Section 497 and notwithstanding such admission, marriage between the parties must be strictly proved to have taken place according to law.
Connivance is the act of the mind, it implies knowledge and acquiescence. It is a voluntary blindness to some present act or conduct to something going on before the eyes, or something which is known to be going on without any protest or desire to disturb or interfere with it.
Connivance is the willing consent to a conjugal offence, or a culpable acquiescence in a course of conduct reasonably likely to lead to the offence being committed. A court cannot draw an inference of connivance from the fact that the woman has been abandoned by her husband. The consent and connivance has to be proved and not merely to be pleaded because a complaint is not treated as a plaint.
Under Section 497, wife is not punishable as abettor as the Indian society is of a different kind which may well lead a man to pause before he determines to punish the infidelity of wives. The contemplation of the law evidently is that wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.
The offence of adultery is considered as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.
Section 497 of the Indian Penal Code and Section 198 (1) read with Section 198 (2) of Criminal Procedure Code, go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.
The community punishes the ‘outsider’ subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. The law does not envisage the punishment of any of the spouses at the instance of each other. A husband is not permitted to prosecute his disloyal wife because the wife is not treated as an offender in the eye of law.
The wife is also not so permitted as Section 198 (1) read with Section 198 (2) of Cr.P.C. does not permit her to do so. In the ultimate analysis the law had meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.
The philosophy underlying the scheme of these provisions appears to be that as between the husband and wife, social good will be promoted by permitting them ‘to make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court.
Thus, no discrimination has been practised in circumscribing the scope of Section 198 (2) CrPC and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. Section 198 (2) CrPC is, therefore, not vulnerable to the change of hostile discrimination against a woman.
Adultery is a secret act. Direct evidence of an act of adultery is extremely difficult. Where a charge for adultery under Section 497 is definite as regards to the place where offence was said to have been committed but specific dates cannot be proved on which sexual intercourse took place, according to court judgments, it is sufficient to specify the period within which offence was alleged to have been committed and omission of precise date would not affect the allegation of the husband.
Every act of sexual intercourse amounts to an offence of adultery and if a person has sexual intercourse with a woman several times, it cannot be said that the offence is continuing and it is undesirable that there should be successive prosecutions.