When a person gets married, there are a lot of dreams. While everyone has a different story, no one wants to get married to one person and desire another. For, marriage means loyalty and commitment. While adultery is morally wrong, what is its status in the eyes of law? Is adultery a crime in marriage? Before jumping upon the answer to the initial question, it is important to understand what is a ‘crime’ and what is considered adultery.
So here, we are addressing the doubts related to adultery and the extent of criminality linked to it.
What is a Crime?
The term ‘crime’ has not been expressly defined under the penal laws in India, neither the former Indian Penal Code, nor the Bharatiya Nyaya Sanhita. However, a crime or an offence can be understood as an act or omission which has been declared against the law, and there is a specific punishment for the same. It may be noted that if murder was not expressly defined and punished as per the IPC or BNS, it might be difficult to prove why killing someone was illegal and punishable. This lays the background of how adultery can be a crime and how it no longer is.
What is considered adultery?
Since marriage is a sacred union, a very close relationship, one-on-one connected with procreation, the husband and wife are supposed to be loyal towards each other. When a person has sexual intercourse with anyone other than their own wife or husband, as the case may be, such an act is adultery. While this is how law defines it, there could be several kinds of acts which constitute adultery. To bring force to the aspect of preventing adultery, the same could only be done if morality could attain legality.
Is adultery a crime in marriage in India?
There was Section 497 under the Indian Penal Code, which punished adultery – the act of having sexual intercourse with another. Since the provision only punished men who had sexual intercourse with the wife of another, the Supreme Court in 2018 decriminalised adultery by striking down Section 497 of IPC due to violation of Article 14, 19 and 21.
Even with the new criminal laws in force, the answer to “Is adultery a crime?” remains the same, since the provision making adultery a crime has not been included in the Bharatiya Nyaya Sanhita. Hence, we can say that adultery ceased to be considered an offence in 2018 and is no longer a crime in India.
Is extramarital affair legal in India?
Coming to the other side of the law related to adultery being a crime in marriage, it should be noted that having sexual intercourse outside marriage is still not acceptable. The Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 does not make one spouse to suffer while the other commits adultery. While the criminal laws in India do not punish adultery, the marriage laws make adultery a ground for divorce. Thus, if one spouse engages into an extramarital affair, the other spouse can approach the Court to end such marriage without any baggage.
FAQs surrounding adultery being a crime
Q- My wife has committed adultery. What are my rights in India?
A- Couples governed by the Hindu Marriage Act or the Special Marriage Act can separate from their cheating spouse by applying for divorce. Being a husband, one may apply for divorce on the ground of adultery. Take note that the spouse approaching the Court for divorce on the ground of adultery will have to prove the same through digital or documentary evidence.
Q- What is the proof of adultery in divorce in India?
A- Since adultery or sexual intercourse is not done openly, but in close spaces, that too in a sneaky way. Thus, nobody expects the aggrieved person to have direct evidence to prove the same. The aggrieved spouse may collect circumstantial evidence like photographs with the adulterer at a secluded space, hotel records, chats, evidence of non-access to the pregnant spouse, etc.
Q- Can I divorce my wife if I committed adultery?
A- Adultery is a ground for divorce for the aggrieved spouse. Hence, the wrongdoer may not be able to take legal advantage of the situation they created. The adulterer spouse can convince the other spouse for a mutual divorce or go with a contested divorce with some other ground.
Q- Is kissing adultery in marriage?
A- The Hindu Marriage Act as well as the Special Marriage Act clearly specify adultery as ground for divorce when one spouse has had sexual intercourse with someone other than the person they are married to. Kissing in itself does not constitute sexual intercourse. Thus, one cannot conclude that kissing would constitute adultery for the purposes of divorce.
Q- Can a married man live with another woman legally?
A- While the law in India does not promote the fact of a married man living with a woman who is not his wife. However, a man cannot be legally forced to leave the other woman’s company to live with his wife. While the Court may not grant police protection to the couple living in adultery, the Court may pass orders like Restitution of Conjugal Rights. If the aggrieved wife in such case does not wish to continue the marriage, she can also apply for divorce on the ground of adultery.
