Does Indian law permit extra-marital affairs? – All you need to know

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This article has been written by Mansi Deore from University of Mumbai Law Academy, Mumbai and has been curated by Yashasvi Kanodia from NMIMS’ Kirit P. Mehta School of Law, Mumbai.

The term “adultery” refers to voluntary sexual relationship or intercourse of a married person with a person who is not their spouse. The actual legal definition of adultery varies from country to country and statute to statute. In many places, adultery is when a married woman has sexual intercourse or voluntary sexual intercourse with another person except her husband while in other places, adultery is when a woman has voluntary sexual intercourse with a third person without the consent of her husband. 

Now let us address what exactly is a conjugal relationship; a conjugal relationship is a relationship wherein two people live within a marriage or remain in marriage but never live together. It may also refer to a situation wherein two people remain in a marriage-like relationship but are not married and have not lived together for a minimum of a year. 

Section 497 of the Indian Penal Code, 1860 says that if a man has sexual intercourse with another man’s wife without the consent of her husband, then he is guilty or punishable by the laws. In many cultures, adultery is equivalent to crime. According to Jewish, Islamic, Christian and Hindu traditions, adultery has been categorized as a crime. In India, the adultery offence is punishable under Section 497 of the Indian Penal Code, 1860. In this section, only men can be punished if they engage in intercourse with the wife of another man without his consent. What is noteworthy and astounding here is the fact that men are punishable under this section; women are not punishable even as abettors.

Many cases in history bear witness to women being treated as an abettor. In the case of Yusuf Abdul Aziz v. The State of Bombay (1954), it was held that the woman was treated as an abettor, and that the woman was handed over to the hands of the other person by her own husband. Here, it is clearly evident that the woman has been totally objectified by her own husband. In this case, the woman is not punishable even as an abettor. The Court held that this provision is saved under the clause (3) of Article 15 under the Indian Constitution which provides special provisions for the woman and child. A person engaging in sexual relations with the wife of another man cannot be charged as adultery if the husband of the wife so involved had given his consent for the same.

In another case of Sowmithri Vishnu v. Union of India, the three grounds of challenges were presented in front of the Court. First, it was argued that Section 497 gives the right to the husband to bring an action upon the adulterer but does not give a right to the wife to prosecute the woman with whom her husband has committed adultery. Second, the Section does not give the wife whose husband has committed adultery the right to prosecute him and third, it is narrow in scope and does not cover cases in which the husband has been having sexual relationships with an unmarried woman.

In twenty-nine foreign countries, the sexual or sex-marriage is officially legal, the names of some of the countries being Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Portugal, Iceland, Denmark, Brazil, New Zealand, etc. There are several other countries where adultery has been allowed officially as well as legally. 

A woman always  stays focused on her own husband or keeps out an eye on extra-marital relations of her husband. Here, the women are treated as they are abettors; they are treated as victims of the offence of adultery as they were in love and affection with their husbands. Their husbands easily give them away to other people who offer them consideration or even offer to offer it. Subsequently, a provision was made that men should be restricted from having sexual relations with the wife(s) of another person(s). It was also pointed out that the provision restricts their extra-marital relations to unmarried women.

Men are restricted from adultery because they take advantage of the love and affection of their wives. A woman, however, is not safe around her own husband, as she needs protection by law in case he tries to take advantage of her love and affection. Men always do not think about their wives and treat them as abettors which is indeed shameful. The woman who should be respected according to Hindu culture is getting raped today; she is getting offered to another man who is not her husband and who does not deserve her. 

There was a case a few years ago wherein a newly married girl was offered drinks by her husband which contained some toxic substances; the effect of which made her unconscious.  She consumed it under the love and affection of her husband, and her husband allowed his friends to have sexual intercourse with his wife thereafter. To decode the judgment, the court has only decriminalised adultery. The Britishers saddled us with this colonial relic while enacting the Indian Penal Code in 1860 whereas they themselves had discarded adultery as a criminal offence in the year 1857 itself. Majority of the countries worldwide treat adultery only as ground for civil issues including divorce and it continues to be so in India too.

 

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