In this article, Vidushi Pandey discusses, under which laws sex outside the matrimonial alliance is illegal in India.

Significance of Marriage in India

• In India, marriage is deemed to be a sacred vow and it’s believed that it is a religious duty performed by the spouses and their relatives. The foundation of marriage is based on trust, care, concern, mutual understanding and giving respect to each other equally.

• If we talked about premarital sex then it is prevailing but statistics provide that 50%of the couples have done sex outside the marriage and moreover they don’t have any guilt.” It is spreading at the speed of the light and in the recent years, we can witness that many of them or out of every three there is one partner who is engaged in this type of practice. Sex outside the marriage is destroying the legitimate relationship and opening the doors of divorce. Yes, sex outside the marriage is illegal in India.

Laws making sex outside marriage illegal

Provisions under the adultery laws

According to the Indian penal code “sex outside marriage is illegal “is termed as an Adultery in India and accordingly, the provision defines it as,

Sec. 497 Adultery[1].—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, is 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. Women never are punished by her husband.

• Adultery has been a ubiquitous issue and the whole world seems fighting to it. Adultery interferes in the institution of marriage and tries its best to break the marriage i.e. divorce.  Adultery means that a person indulges in the act of illegitimate sexual intercourse other than his or her spouse.
• Adultery destroys or it affects the person mentally, physically, and spiritually not only the person but also the people around them. No one can make assumptions or can identify, why such a heinous crime is committed, some cases in the past year reveal that either the person has not got what they ought to get or otherwise they must have an addiction.
• An offence of adultery is caused when there is no love and affection in the relationship and to grab that kind of concern and care the person seems to tilt to the other person and create an extramarital affair.
• In India, the offense of adultery is punishable under Section 497 of the IPC.our penal laws are designed in such a way which only punishes a man for adultery. No woman can be held liable for adultery under section 497. The report of the mallmath committee on criminal justice Reforms & the 42nd report of the Law Commission of India recommended amending the section to make the women liable also.

Acts and sections related to it

Provisions related to enticing or taking away or detaining with criminal intent of a married woman

• • Sec 498. 2 Enticing or taking away or detaining with criminal intent a married  woman —Whoever takes or entices away any woman who is and whom he knows or has  reason to believe to be the wife of any other man, from that man, or from any  person having the care of her on behalf of that man, with intent that she may have  illicit intercourse with any person, or conceals or detains with that intent any such  woman, shall be punished with imprisonment of either description for a term which  may extend to two years, or with fine, or with both.”  

• Sec 198 of Code of Criminal Procedure, 1973 says that only husband of that wife who got indulge with another man can file a complaint case and not anyone else.

• Section 13 of the Hindu Marriage Act, 1955 and Section 27 of the Special Marriage Act 1954, stated the grounds and reasons for divorce which are as follows:

(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) Has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

Adultery is the act of indulging in sexual intercourse outside marriage which is termed as adultery. Adultery is counted as a criminal offense and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Special Marriage Act, 1954 – Restitution of conjugal rights and judicial separation.

Sec22. Restitution of conjugal rights- when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal; ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Adultery under Muslim Law?

• According to the Islam “adultery is a sexual intercourse which has been done by the person to other than his or her spouse .it is considered as a sin. Zina is an Arabic locution used to describe premarital sex or an extramarital affair.
• The act of Zina is considered the most odious type of crime and a most unforgivable offense because of its dreadful consequences which not only affect the other partner but also the family and society. This adulterous act attracts a savage and barbaric kind of a punishment which is given to any man or woman. Married man sleeping with unmarried women can not come under this crime.
• Divorce under Muslim law on the grounds of adultery is been referred as a Lian. In this, a man traduces false charges of an affair against his wife then this result in the deception of her character and then the wife has got the right to ask for a divorce.
• This mode of divorce is called Lian. Even if the husband has out of any aggressive nature or anger assassinated her of false charges then also she can file a case for divorce.

According to the dissolution of Muslim Marriage Act 1939, a woman married under this act can obtain a divorce against his husband if he indulges in the sexual intercourse with other women.

Christian Law

According to this law, the parties can take divorce under the Divorce Act 1939, section 10 (1)(a) of the act says,

“Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.”

Under Section 11 of the Act, it is requisite that the adulterer must be impleaded as a co-respondent in the suit, unless:

• That the respondent is living in adultery and the petitioner has no whereabouts with whom the adultery has been committed.
• The petitioner doesn’t know the name of the adulterer in spite of investing efforts
• The adulterer is dead.

The Code of Criminal Procedure, 1973 (CrPc)

There have been provisions laid down which tells about the extramarital affair.

A wife is not entitled to get maintenance from the husband if she lives in adultery. If an order has been passed to pay maintenance and later a proof is presented of her living in adultery, such order shall be cancelled by the magistrate.

If a person commits house-breaking by day with the intent to commit adultery and commits in the house so entered adultery with your wife he may be separately charged with and convicted of offences under sections 454 and 497 of the Indian penal code.

If a person entices your wife away from you, with an intent to commit adultery with her and then commits adultery with her, he may be separately charged with and convicted of offences under sections 498 and 497 of the Indian penal code.

What legal actions can I take if my spouse is engaged in sexual relationships with someone outside the marriage?

Judicial Separation

Hindu law

• If you are not willing to take a divorce then you can file a petition in the court to obtain a decree of judicial separation on the ground of adultery either by husband or wife. After obtaining the degree you no longer have to cohabit with your spouse.
• This will give you time to think over the situation and decide whether or not you want a divorce. If you fail to cohabit with your spouse for one year then either of the spouses can file for dissolution of marriage.

Christian law

You may file a petition for judicial separation under the sec. 22 of the Divorce Act on the ground of adultery.

Special Marriage Act, 1954

Judicial separation –

A petition for judicial separation may be presented to the district court either by the husband or the wife-

(a) On any of the grounds specified in sub- section (1) and sub-section (1-a) on which a petition for divorce might have been presented or

(b) On the grounds of failure to comply with a decree for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted may decree judicial separation.

Where the court grants a decree of judicial separation, it will be no longer obligatory for the petitioner to cohabit with the respondent but the court may on the application by petition of either party and on being satisfied with the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so.

Why Are Women Not Punished Under The Offence of Adultery?

• In the most part of the world, women are punished for this offense but exceptions are always there and the exception to it is that in India the women are not held liable.
• The laws were made by the British rulers’ in 1860 and at that time the social condition of women was equal to animals and they were treated like them.
• They were under the control of men and probably live their life in confinement. There was no education and no independence. The provision at the time it was enacted, the polygamy was at the peak and to abolish the practice of polygamy and this was believed that men’s firstly make sexual intercourse and then they marry to those women.
• There comes a case of K.M Nanavati vs. the State of Maharastra[5], there was a naval officer, who was charged with the murder of his wife’s lover. The facts go like that the naval officer Nanavati was married to Sylvia, his wife. Thereafter due to his (Nanavati) job he and his family migrated from one place to another. But finally, they shifted to Bombay. And then through a common friend, they met Ahuja, who was having a large automobile business in Bombay itself. The twist, in this case, comes when Nanavati has to go for his duty. Meanwhile, Sylvia and Ahuja became good friends and then they became intimate in their relationship. Now later she confessed the relationship about her and Ahuja. Unable to tolerate the deception, annoyed Nanavati decided to have a word with Ahuja. But before going to Ahuja’s house, he went to store of his ship to take the licensed revolver. When he reached there, he saw his servant but he directly went to Ahuja room and there he asked Ahuja to marry his wife and also take care of the children but he firmly refuses. After having a heated argument, accidentally in the fight, two bullets of Nanavati’s revolver strikes the Ahuja’s chest and in the consequence, he died. And then he was charged with the murder. But a woman was set free.
• There is the case of Yusuf Abdul Aziz vs. The state of Bombay [8] In this case, the appellant was charged with adultery and file the case in the high court of the Bombay to govern the constitutional pungency between the article 14 of the constitution and the sec 497 of the IPC. But the court dismissed his petition. Sadly he moves to the Supreme Court and their S.C establishes the relation between Article 15(3) and 497 of IPC.

The constitutionality of sec 497 was challenged before the court in the case of Sowmithri Vishnu vs. Revathi that it is the policy of the law that not to punish the woman and policies are not questioned.

Conclusion

• The question is about the legality of the act. After seeing the holistic views and ideas, this can be concluded that it is an illegal act and there are punishments given in the provisions. The state recognized the adultery as a criminal act or offense.
• Yes, this can be a gender biased law but we cannot see light at the end of the tunnel. The act was made i.e. penal laws at the time of colonial period and at that time women were treated as the mere possession of the husbands and they treat them like a slave.
• But the present world and society demands an amendment in the act and make women also punishable which is to some extent is valid and reasonable.

References

Sec 497 Indian Penal Code, 1860

Indian Penal Code, 1860

Code of Criminal Procedure, 1973

Hindu Marriage Act, 1955

1962 AIR 605 1962 SCR Supl. (1)567

http://www.prsindia. org/upload/media criminal law 2013

Barton JL, the Story of Marital Rape Law Q Rew 1992.

1954 AIR 321, 1954 SCR 930