It may seem a little bizarre but it’s true that women in India can’t be prosecuted for an offence of adultery. I’ll try to answer this with the help of the discussions, suggestions and recommendations on record. Now first let’s look at the exact definition of Adultery under Section 497 of the India Penal Code:-
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 the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the 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.
For a complete understanding of the offence of adultery, a reading of Section 198(2) of the Code of Criminal Procedure, 1973 is also important, which reads as under:-
198. Prosecution for offences against marriage:
(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that— …
(2) For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
On a careful reading of the above provisions, you can see that Section 497 of the Indian Penal Code perceives a “consensual” sexual intercourse between a man, married or unmarried, and a married woman without the consent or connivance of her husband as an offence of “adultery”. Which also means that the offence of adultery is committed only by a man who has sexual intercourse with the wife of another man, without his consent or connivance, and that the wife is not punishable for being an “adulteress”, or even as an abettor of the offence for which the man can be sent to jail for 5 years.
On a slightly deeper level, it also means that a sexual intercourse between a married or unmarried man, and an unmarried woman or a divorcee or a widow, does not come within the ambit of “adultery”. Continue reading