Adultery in India

Only male can do it and female cannot By Arnab kumar banerjee Student 3 yr. LLB. Course Sarsuna law college Vidyasagar university

Adultery is an age old offence. It is a criminal offence and is dealt with Indian penal code (ipc). It is defined in ipc as follows: Section 497 Adultery: 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 consent and connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of 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. From the above definition the following things will come out: To be convicted as a guilty of adultery one: 1. Must have a sexual intercourse with another mans wife. 2. Such intercourse will be without consent of the husband of that wife. 3. Such intercourse should not be the offence of rape. 4. The wife will not be the abettor (guilty of insisting to commit offence). 5. The man must know that she is another mans wife. The above facts will be proved in order to convict somebody of guilty of adultery. Among them there is one element that may amount to injustice in certain cases. The practice of not holding wife guilty of adultery is a controversial element. Now if facts no. 1, 2, 3 and 5 are proved against a man then he cant be held has an adulterer, unless his intention to commit adultery is proved beyond reasonable doubt. But the question that who has an intention to commit adultery is answered

by the question that who ignites the flame? The initiator is the real guilty because the initiator has the intention to commit adultery. According to ipc, the intention is an essential element of a crime. If there is no intention, there is no crime. This is expressed by the maxim actus non facit reum,nisi mens sit rea i.e. the act by itself does not constitute guilt unless done with guilty intent. The mens rea or gulty mind is the real guit. So who started seducing a man to commit adultery is the main question in case of adultery. Now, by declaring arbitrarily women as not adulterer this law protects women without any reason. What made the lawmaker think that women cant have intention to commit adultery? Women cant seduce a man to do this act? This shows the lawmakers lack of wisdom and understanding about the character of women. By protecting women from the eyes of law without any reason, the law lacks equality of justice. In this article I am going to show a number of cases where women have the intention to commit adultery.

The case Golub v. Ganz entered the APPELLATE DIVISION of New York Supreme Court on October 20, 2005 and decided on that day.in this case the plaintiff (appalant) was marc ganz(ganz) and the defendant/ respondant was mona golub (golub). Ganz file a divorce suit against golub. The charge he brought against golub was cruel and inhuman treatment and ADULTERY. She committed adultery on or about June 30, 2002 and July 1, 2002. Here mona golub was ordered by the court to pay child support and she lost the custody of children. You can read the case detail here . In another case Sadhu Ram @ Dalip v The State (Govt. of NCT of Delhi)

Crl. Appeal No.836/2010, the appellant sadhu ram was sentenced to 10 year imprisonment and Rs. 10,000 fine for attempt to rape another woman(prosecutrix) in whose house sadhu was a milk vendor. The prosecutrix told her parents about the rape and threatening by sadhu and her parent file that case in session court. session court gives sadhu sentence of 10 yr. jail with fine. Sadhu appealed to high court where it is found that in a photograph sadhu stands in an intimate posture with the prosecutrix. According to sadhu this photo was taken earlier when both sadhu and the prosecutrix visited KK digital studio for getting photographed. The prosecutrix didnt deny the photograph. And the doctor who examined the prosecutrix, Dr. shruti ranjan didnt find any evidence of rape. These two evidences proved beyond reasonable doubt that rape has not been committed. Then it was implied from the photograph that the prosecutrix has an extramarital affair with sadhu. She has committed adultery. You can see the details of the case here . So, from above cases, we come to know that women can commit adultery as easily as men. But in Indian law they cant be held liable. Why? I cant find any reason behind this practice. Certainly the adultery law in india is GENDER-BIASED . we should not forget that justice should be impartial and law should not violate our constitutional right of equality. This practice of not holding women liable will certainly benefit some women who commit adultery and escape justice. These adulterous women cant be divorced on the ground of adultery because law did not recognize them as adulterous. In this way some crime continues without being ever caught. We must stop this practice and change law in such a way that both men and women will be held liable for adultery if proved.

In this way, we can correct the gender biasness of this law and make it impartial and just.

Bibliography; 1] http://www.lawyersclubindia.com/forum/Re-On-being-caught-ofExtra-Martial-Affair-wife-slapped-RAPE-24031.asp#114048 2] http://www.jdbar.com/Cases/golub-ganz.html 3] IPC