Adultery Analysis

Since its inception, the law on adultery in India has been subject to controversy with regard to several fundamental issues. The legitimacy of these laws in India has been argued based on deep-rooted obsolete assumptions predominantly premised on gender discrimination and the wife's sexuality. The Apex Court has failed time and again to have a deeper insight into the gender-biased law of adultery.

K.I. Vibhute in his critical analysis of the constitutionality of adultery laws in India stated that that such gender-discriminatory and proprietary-oriented laws of "adultery” contradicts the very essence of equality of status guaranteed under the Constitution of India. He criticizes the general judicial perception that only a man can be "an outsider",

Vibhute, further deduces in his article, "Adultery" in the Indian Penal Code: Need for a Gender Equality Perspective’ that such judicial reasoning, in ultimate analysis, unfortunately endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband! He argues that the penal law of adultery in India is premised on the one-and-a-half century old caste-based stratified "social setting" in the context of the traditional conservative property-oriented familial ideology and sexual mores.

Dr. Ashutosh Bairagi Snr. in his research paper Inherent Gender Bias in Adultery Law in India: A Critical Evaluation rightly questions how the law is unable to explain that for the same wrongful act, the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman.

The basic rationale behind criminalizing adultery is to protect the sanctity of the sacred institution of marriage. But unlike other countries, the law in India is inexplicably biased against men, so much so that a woman cannot even be prosecuted for adultery even when she is responsible for initiating the act; she is not tried even as an

Mukesh Yadav and Dr. Vinita Kushwaha in their paper Adultery: meanings and interpretations As professional misconduct, civil and criminal offence in India elucidate the various Indian case laws that have highlighted the prejudiced aspect of adultery laws in India; they refer to a case in which the accused was charged and convicted for committing rape under section 376 IPC by trial Court, however in appeal to the High Court, the Court held that accused had sexual intercourse with free consent of the woman, but without her husband’s consent or connivance. Hence, the conviction under section 376 IPC was quashed and accused / appellant was held guilty of the offence of adultery and convicted under Section 497 IPC. Scholars of law and jurisprudence very much question the inherent legality of such a judgment in the light of Section 198 Cr PC. The protection of the rights of one party should not be secured at the cost of sacrificing the rights of the