Define Adultery. Can a woman be charged with Adultery? Can she be an abettor?

Question: Define “Adultery”. Can a woman be charged with Adultery? Can she be an abettor? [M.P.C.J. 1979, 2014]

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Answer

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, Section 497 IPC made adultery a criminal offence and prescribed punishment of imprisonment up to five years and a fine. The offence of adultery under Section 497 was very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence was committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife was not punishable for being an adulteress, or even as an abettor of the offence.

Section 497 made Adultery punishable and reads as under:

“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 a case, the wife shall not be punishable as an abettor.”

Section 198 (2) of the Criminal Procedure Code explains who can move the court against adultery. “For the purposes of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by an offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

Sub-section (1) of the CrPC Section 198 says the court cannot take cognizance of an offence under Chapter XX of the I.P.C unless the complaint is filed by some person aggrieved by the offence.

However, in Joseph Shine v. Union Of India, decided on 27 September 2018, the Supreme Court held section 497 of the Indian Penal Code, read with section 198(2) to be unconstitutional. Thus, adultery is no longer recognized as a criminal offence.

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