The word “adultery” is derived from the French word “avoutre”, which evolved from the Latin verb “adulterium”, which means “corruption”. The dictionary of adultery means that a married man commits adultery if he has sex with an unmarried woman. According to Indian law, Article 497 of the IPC criminalizes adultery and imprisonment and fines of up to five years. Compared with the misconduct of adultery as understood in divorce proceedings, the scope of the crime of adultery under Article 497 is very limited. The crime was committed only by a man who had sex with another man’s wife without the consent or connivance of the other man.
The wife will not be punished for adultery or (even for being an accessory to a crime) treats the woman’s husband as the victim of a crime committed under article 497 of the IPC and, in the absence of the husband, someone who cared for the woman on her behalf when committing those crimes, judicial leave. He does not consider the wife of an adulterer to be an aggrieved person. Article 497 of the IPC and Article 198 (2) of the CrPC together constitute a legislative package dealing with the crimes of adultery, which has been dealt with by the Supreme Court in Joseph Shine v. Alliance of India, 2018 SCC Online SC 1676.
Section 497. Adultery. – The person who has sexual relations with someone they know or have reason to believe is the wife of another man without the consent or collusion of the man. Said sexual relationship does not constitute a crime of rape, that is, it commits the following crimes: Adultery will be punished with any form of imprisonment that can extend up to a maximum of five years, or a fine, or both. In this case, the wife should not be punished as an accomplice. Article 198.
Prosecute crimes against marriage. – (1) No court will find an offense punishable under Chapter 20 of the Indian Penal Code (No. 45 of 1860) unless a person files a complaint for that offense. (2) For the purposes of subsection (1), except in the case of the wife’s husband, no one shall be considered injured as a result of any crime punishable in articles 497 or 498 of the aforementioned Code: the premise is that, in the absence of the husband, certain people who take care of the women are. He can, with the court’s permission, file complaints on your behalf when such crimes occur.
The crime of adultery is unrecognizable (a situation in which the police cannot arrest the accused without an arrest warrant). In addition, it is a crime subject to bail. The crime of adultery is aggravated by the husband of an adulterous woman. Aggravated crime means that the court can reach a compromise between the parties and drop the charges against the defendant. [Section 320 CrPC]. The purpose of section 497 is to maintain the sanctity of marriage. Society hates infidelity in marriage. However, this goal was not favored by the Supreme Court. In the case of Joseph Shine, the court noted. According to further observations, sexual relations between married men and unmarried women or widows who have not been approved by the legislature can completely destroy the sanctity of marriage.
In addition, if the husband agrees or agrees to constitute an adulterous sexual relationship, it does not constitute a crime, which shows that it is not the sanctity of marriage that is sought to protect and maintain, but the husband’s property rights. .Article 497 is a pre-constitutional law promulgated in 1860. At that time, women had no right to be independent from their husbands and were considered movable property or “property” of the husband. Therefore, the crime of adultery is considered harm to the husband because it is considered a “theft” of his property, for which he can sue the perpetrator. The first draft of the IPC issued by the Indian Law Commission in 1837 did not list “adultery” as a crime. Lord Macaulay believes that adultery or marital infidelity is a private error on both sides, not a crime.
However, Lord Macaulay’s views were adopted by other members of the Legal Committee, Joseph Shine v. Federation of India, and 2018 SCC Online SC 1676. To constitute adultery, the following conditions must be established:-(i) The sexual relationship between a married woman and a man who is not the husband; (ii) A man who has sex with a married woman must know or have reason to believe that she is another The wife of a man (iii) Sexual relations must occur with her consent, that is, it must not constitute rape; (iv) Sexual relations with a married woman must be without the consent or connivance of her husband.
After exposing the above elements, Joseph Shine’s Supreme Court continued to discuss the unconstitutionality inherent in the crime of adultery, as seen today. Only the husband of a woman who has committed adultery is considered aggrieved, and only he can lodge a complaint. However, in the absence of the husband, if permitted by the court, someone else who took care of the woman on her behalf at the time of the crime can lodge a complaint on behalf of the husband. [Section 198 (2) CrPC] In Joseph Shine, this was considered arbitrary and violated the constitution.
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