Adultery and Related Provisions

The Madhya Pradesh High Court recently ruled that evidence of sexual intercourse is necessary to prove adultery for denying maintenance.

• While adultery is not a criminal offense anymore, it continues to be grounds for punishment in the armed forces.

About Adultery

• Definition: Adultery refers to a married person engaging in voluntary sexual relations with someone other than their spouse.
• Previous Legal Status: Under Section 497 of the IPC, adultery was a criminal offense punishable by up to five years of imprisonment.
• Gender Bias in Old Law: Only men could be prosecuted, and the offense was contingent on the husband’s consent.

Legal Provisions for Adultery Before Decriminalization

• Indian Penal Code (IPC) Section 497: Defined adultery as sexual relations between a man and a married woman without the husband’s consent.
• Criminal Procedure Code (CrPC) Section 198: Only an aggrieved husband could file a complaint.
• Decriminalisation: Adultery was decriminalized in 2018 by the Supreme Court (SC) but remains relevant in civil cases related to divorce and maintenance.

Supreme Court Cases Related to Adultery in India

• Yusuf Abdul Aziz vs. State of Bombay (1954) : The Supreme Court upheld Section 497 IPC, ruling that special provisions for women were justified under Article 15(3).
• Sowmithri Vishnu vs. Union of India (1985) : The Court upheld Section 497 IPC, stating that only the husband had the right to prosecute, reinforcing gender bias in adultery laws.
• V. Revathi vs. Union of India (1988): The Court upheld Section 497 IPC and Section 198(2) CrPC, arguing that the law aimed to preserve the sanctity of marriage rather than punish women.
• K.S. Puttaswamy vs. Union of India (2017): The judgment recognized the right to privacy as a fundamental right, strengthening the argument for decriminalizing adultery.
• Joseph Shine vs. Union of India (2018): The Supreme Court struck down Section 497 IPC as unconstitutional, affirming gender equality, privacy, and autonomy in marriage. It was struck down on the grounds that it violated Articles 14, 15 and 21 of the Constitution.

Provision for Adultery in Bharatiya Nyaya Sanhita (BNS)

• The Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in 2024, does not include adultery as a criminal offense.
• This aligns with the Supreme Court’s ruling that adultery is not a crime but remains relevant for civil relief.

Marriage and Divorce Laws in India

• Hindu Marriage Act, 1955 (HMA) and Special Marriage Act, 1954 (SMA) recognize adultery as a ground for divorce.
• Proof Requirement: Courts require evidence of sexual intercourse to establish adultery in divorce cases.
• Judicial Precedents: Courts have ruled that mere suspicion or intimacy without proof of intercourse is insufficient to prove adultery.

Provisions for Maintenance under Hindu Law

• Maintenance of Wife: A Hindu wife is entitled to maintenance from her husband throughout her lifetime.
• She can live separately without forfeiting maintenance if the husband:
  • Abandons or neglects her.
  • Treats her with cruelty.
  • Has another wife or keeps a concubine.
  • Converts to another religion.
• Maintenance of Widowed Daughter-in-Law: A widow can claim maintenance from her father-in-law if she lacks financial resources and cannot obtain support from her family or husband’s estate.
  • The father-in-law’s obligation ceases if he lacks financial means or she remarries.
• Maintenance of Children and Parents: A Hindu must maintain their legitimate/illegitimate children and aged/infirm parents.
  • Minor children and unmarried daughters can claim maintenance if they lack financial means.
• Maintenance of Dependents: Heirs inheriting a Hindu’s estate must maintain the deceased’s dependents.
  • The liability is proportionate to the share inherited.
• Determination and Modification of Maintenance: Courts decide the maintenance amount based on financial status, needs, and circumstances.
  • Maintenance can be modified if there is a significant change in circumstances.
• Conditions Affecting Maintenance Claims: 
  • A claimant must remain Hindu to seek maintenance.
  • Debts take priority over maintenance claims.
  • Maintenance rights may not be enforced against a transferee unless they had prior notice.
  • A wife living in adultery is not entitled to maintenance from her husband.

Adultery in the Armed Forces

• The Army, Navy, and Air Force Acts allow punishment for “unbecoming conduct” and violations of discipline, including adultery.
• The Supreme Court upheld the government’s argument that military personnel can still be punished for adultery under service laws.