The Madhya Pradesh High Court last month ruled that evidence of sexual intercourse was necessary to prove adultery as a ground for cancellation of maintenance. The ruling effectively restates the legal definition of adultery that has been accepted by the courts in civil proceedings. Adultery was decriminalised in 2018 after a Supreme Court decision. However, it remains in the statute books as a ground for relief in civil cases relating to maintenance and divorce, and as a ground for punishment in the armed forces. What is the definition of adultery? Section 497 of the Indian Penal Code, 1860 (IPC), recognised the crime of adultery and provides the accompanying punishment. It defined adultery as “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”. There are two key points to consider here. First, under Section 497 only a man could be prosecuted and punished for committing the crime of adultery. Second, for someone to be punished for adultery he must have had sexual intercourse with another man’s wife, without that man’s consent. It was punishable with up to five years imprisonment and a fine. The Bharatiya Nyaya Sanhita (BNS), which came into effect on July 1, 2024, does not mention adultery as it was decriminalised by the apex court. Why is adultery no longer a criminal offence? In 2018, a five-judge Constitution bench unanimously ruled that Section 497 was unconstitutional. The court held that the provision was discriminatory towards women and treated them as subordinate to their husbands “inasmuch as it lays down that when there is connivance or consent of the man, there is no offence”. As a result, the SC held that “this treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master”. For similar reasons, the SC also struck down Section 198 of the Criminal Procedure Code, 1973, which only allowed the aggrieved husband or “some person who had care of the woman on his behalf at the time” to file a complaint under Section 497. However, the SC clarified that adultery would remain a moral wrong and could be invoked as a ground in civil proceedings. Then Chief Justice of India Dipak Misra said, “There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage”. He explained that the outcome of adultery should be left to the individuals involved, stating “when the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation…It is absolutely a matter of privacy at its pinnacle”. How is adultery still legally relevant? As the SC clarified, adultery remains a ground for relief in civil cases such as divorce proceedings. Under both the Hindu Marriage Act, 1955 (HMA), and the Special Marriage Act, 1954 (SMA), one of the grounds for divorce is if the husband or wife “has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”. Though it is not explicitly called adultery under the provisions for divorce (Section 13 of the HMA and Section 27 of the SMA), it is referred to as adultery in later provisions. Both laws contain provisions empowering the other party to counter-sue in divorce proceedings on the grounds of “adultery”. Courts have also ruled that proof of sexual intercourse is necessary to invoke adultery as a ground for divorce. The Delhi HC for instance heard a divorce case in 1982 where the husband was allegedly found lying in bed naked with a minor girl. However, the court refused to grant a decree for divorce, finding that “there must at least be partial penetration for the act of adultery to be proved. The attempt to commit adultery must not be confused with the act itself, and if there is no penetration some lesser act of sexual gratification does not amount to adultery”. The court borrowed this from the book “Rayden on Divorce” — a reference book for family law students and practitioners — and referred to other cases which supported this definition. The requirement for sexual intercourse is necessary to prove adultery in maintenance cases as well. Under Section 125(4) of the CrPC, “No wife shall be entitled to receive (maintenance).from her husband under this section if she is living in adultery”. In the Madhya Pradesh HC case, however, though the husband had claimed his wife was engaged in a “love affair” with another person, the HC refused to interfere with the past order directing him to pay maintenance. The court found that there was no proof of his wife having sex with another person and held “adultery necessary means sexual intercourse. Even if a wife is having a love and affection towards somebody else without any physical relations, then that by itself cannot be sufficient to hold that the wife is living in adultery”. Are there exceptions to the SC’s judgment? In 2023, an application was filed in the Joseph Shine case seeking clarity on how the judgment would apply to the armed forces. The Centre argued that the Army, Navy, and Air Force were a “distinct class” under Article 33 of the Constitution, which allows Parliament to pass laws to determine “to what extent” fundamental rights will apply to members of the armed forces. The Centre argued that the armed forces should be governed by the relevant laws — the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950. These laws provide punishments with the possibility of imprisonment for “unbecoming conduct” and violations of “good order and discipline” which would include “promiscuous or adulterous acts”, according to the Centre. The SC allowed the Centre’s arguments, stating that the ruling was “not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us”. Effectively, adultery is still a punishable offence for members of the armed forces.
