The term “adultery” has been derived from the latin term adulterium and considered as a sin by all religions. It is also a ground for divorce under section 13 of the Hindu Marriage Act, 1955 and can be utilized by either spouse applying for divorce. Adultery is an act performed in private walls and thus direct evidence of an act of adultery is extremely difficult to obtain and the entire concept is looked upon with suspicion.
The law of adultery is of ancient origin. We can trace the roots of adultery laws in India, in verses 6 and 7 of the oldest laws of Code of Ur-Nammu. The essential ingredients of Adultery as mentioned in section 497 of the IPC are:
- Marriage of the women is an essential element of the crime charged and has to be strictly proved in a regular way.
- It is necessary to establish that the performance of sexual intercourse is with a person who is and whom he knows or has reason to believe to be the wife of another man.
- Essentially, it implies that the accused must have knowledge or reason to believe that the woman was the wife of another person.
- Another important factor is that adultery must take place without the consent or connivance of that husband which is difficult to establish. This matter was discussed in the case of Bharatlal v Top Singh, and it was held that “The consent or connivance is to be proved and is not to be pleaded as complaint is not to be treated as a plaint.”
CONSTITUTIONAL VALIDITY OF SECTION 497
Section 497, by necessary implication, assumes that the “wife” was a hapless victim of adultery and not either a perpetrator or an accomplice thereof. This, is to be read in consonance with Section 198 CrPC which mandates a court not to take cognizance of adultery unless the “aggrieved” husband makes a complaint.
The larger question therefore becomes: If adultery is a crime where two parties are involved, what is the rationale behind not punishing the woman? Probably because the women is considered to be irrational to form such a decision or is treated similar to a property in which case, if destroyed by an offender, then the man to whom the property belongs to punishes such an offender. This has been challenged several times but the court has upheld the validity of the law, and thereby justifying consistently and continuously, this gender biased classifications.
In Yusuf Aziz v State, section 497 was considered a special provision for women on the basis of article 15(3) of the Constitution, and the Apex Court held that it does not give a license to women to commit a crime as contended by men, but rather it protects the chastity of a woman.
In case of Sowmithri Vishnu v. Union of India and Anr, it was observed that the wife who is involved in the act of sexual intercourse with another man is just a victim and not the offender and had no rationality of the act. The section was held to be non violative of the Constitution.
WOMEN ARE NOT FAVOURED
Interestingly, it is easily disregarded that this same law which men repeatedly consider biased against them, also does not permit a woman to bring a case against them or the other person who destroys the marriage. How is this law favourable to women when it allows a man to have sexual intercourse with a widow or unmarried woman, and wife’s hands are tied to bring the man to the court of law under this section? It is as if men are given a free-license to engage in sexual intercourse with widows, or unmarried women.
In case of V. Revathi v. Union of India and Ors, the court held that that Section 497 of the Indian Penal Code does not permit the husband to file a case against the wife who has performed adultery nor does it permit the wife to bring a case of adultery against the husband, and thus, the law is not biased towards anyone. The perspective to be adopted for looking into an adultery matter was clarified by the verdict of this case. The law only punishes the “outsider” in a marriage and does not envisage punishment of any of the spouses at the instance of each other.
Considering all the aspects of adultery laws and with the backdrop of its absence in other countries, in my opinion, India should take an example and revise the laws such that either spouse in a marriage, if involved in adultery, should be criminally responsible. The innocent spouse should be allowed not only to seek divorce from the errant spouse, but also be allowed to bring penal proceedings against them. Such modifications are necessary to attain gender equality in the truest sense.
 Kasthuri v. Ramasamy, 1979 Cri LJ 741.
 The Code of Ur-Nammu (ca. 1900-1700 BC). Verse 6 of the Code states that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male.’
 The Code of Ur-Nammu (ca.1900-1700 BC)‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’ And this has been a recurring theme in every law that follows.’
The Ur-Nammu Law Code, available at: http://realhistoryww.com/world_history/ancient/Misc/Sumer/ur_nammu_law.htm.
 Empress v. Pitambur Singh (1880) ILR 5 Cal 566.
 Olga Thelma Gomes v. Mark Gomes AIR 1959 Cal 451.
 Queen v. Madhab Chunder Giri Monhut (1874) 21 Suth WR (Cr) 13.
 Bharatlal vs Top Singh 1995 CriLJ 3545.
 “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective, K.I. Vibhute,(2001) 6 SCC (Jour) 16.
 Yusuf Abdul Aziz v. State, AIR 1951 Bom 470; Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930.
 Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137.
 V. Revathi v. Union of India and Ors (1988) 2 SCC 72.