Article 14 of the Indian Constitution provides for equality before law and equal protection of laws. The first phrase translates as a positive right conferred upon the people by the virtue of which every person will be subject to the same judicial system without any privileges or any discrimination whether positive or negative. Whereas, the second part of Article 14 implies that every person will have the right to be protected equally, and this is derived from the principle of treating equals equally and unequals unequally. Article 14 mandates not a blanket equality, but proportionate equality. Owing to this, many archaic Indian laws have since time immemorial been operating in our country under the veil and protection of the latter part of the Article.
The law on adultery is one of the above. Section 497 of the Indian Penal Code, 1860 states that “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.” Even on apparent examination, we find that this law is discriminatory towards men, the men being the only ones liable to be held guilty of the criminal offence. The woman party to adultery has no criminal liability. She is only treated as a victim in the case. One may very well justify this discrimination by basing their arguments on the principle of positive discrimination that flows from Article 14 of the constitution itself, but they fail to explain why only the husband of the wife who is engaged in an adulterous relationship can file a complaint against the adulterer, whereas the wife of the husband who is an adulterer has no say in the matter. Therefore, section 497, cannot be justified as being protective of women and their dignity, as it takes away from them the legal remedy and the power to lodge a complaint when their husbands engage in extra-marital affairs with other married women. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India has also speculated on the given matter and has presented its opinion to amend or repeal the law.
However, these things aside, another problem or rather difficulty that the law brings along with itself is the way the offence has to be proven in courts. Not only is it a mammoth task in itself, different courts across the country have presented different views with respect to the evidences that can and cannot be adduced in order to successfully prove adultery. But before we get into the nitty gritty of proving adultery, we first need to understand what constitutes adultery.
WHAT CONSTITUTES ADULTERY?
The meaning attributed to the term adultery varies from different country to country. It also varies across religion, culture and context. However, the underlying meaning of adultery as enunciated in section 497 IPC refers to the act of men having sexual intercourse with the wives of other men without the consent of their husbands.
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. This law draws a clear line of distinction between the consent given by a woman and the consent given by a man. It does not take into consideration the cases where a married man has sexual intercourse with an unmarried woman. It only seeks to prosecute the men in cases where the married women have sexual intercourse with the respective men, whether married or unmarried without taking the permission or consent of the husbands of the women. Since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. Hence the question of the constitutional validity of the section comes into the forefront.
HOW TO PROVE ADULTERY IN COURT?
The offence under section 497 is non-cognizable, bailable and compoundable, and is triable by magistrate of the first class. In order to prove the offence of adultery, circumstantial evidence plays the main role. Though proof of sexual intercourse is essential for the offence of adultery, it can rarely be proved by direct evidence. It has to be inferred from the facts and circumstances of a case. However, the circumstances must be of such a nature that they fairly infer that sexual intercourse took place.Evidence of opportunities sought for and obtained and of undue familiarities, which point strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse. The entire background and context of the case needs to be taken into consideration for ascertaining sexual intercourse.
In cases where the consent or connivance or even acquiescence of the husband can be proven in the act of adultery, there lies no case against the adulterer. However, he absence or presence of consent or connivance can be inferred from the circumstances of the case. Strict proof of the same is not necessary.
In cases of adultery, it is very difficult to produce direct evidence. Adultery is both a matrimonial offence and a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. The offence of adultery may be proved by:
By evidence as to non-access and birth of a child
By evidence of visits to brothels
By contracting venereal diseases
Confession and admission to parties
Preponderance of probability
In the case of Pattayee Ammal v. Manickam Gounder and Anr. , the High Court had occasion to consider the standard of proof necessary in the case where adultery is pleaded. It was held thus:
“Adultery, from its nature, is a secret act. Direct evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour, as it is highly improbable that any person can be a witness to such acts, as such acts are generally performed with utmost secrecy.”
In Fairman v. Fairman, the lodger gave evidence that he committed adultery with the wife of the petitioner but the wife denied the same. As the lodger’s evidence was not corroborated it could not be held that adultery had been proved.
In the case of England v. England, admittedly the wife spent one night with another gentleman. It was even assumed that there was an inclination and opportunity yet the Court accepted the verbal testimony of the respondent. It was held that there was no rule of law that evidence of conjunction of inclination and opportunity must raise presumption that adultery has been committed. The sworn testimony of the wife and other gentlemen were accepted by the Court.
In Barker v. Barker, a Full Bench decision of the Madhya Bharat High Court where also it was observed that direct evidence regarding the act of adultery cannot be expected.
In the case of Earnest John White Vs Mrs. Kathleen Olive White and Others, the husband filed dissolution of marriage on the ground of her adultery. Trial Court had granted the divorce and High Court had reversed the decree of divorce. Appeal before Supreme Court and Supreme Court held that: The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. As adultery has been proved the court allowed this appeal.
In the case of Bharatlal Deolal Lodhi vs Top Singh Somaru Lodhi, the husband and wife were married for 10 years and had a child of 7 years. In 1980, he returned to his house did not find his wife there. Then he waited for sometime and made enquiry in the village but could not get any clue. He then came to know that his wife had gone to village Tikarwada along with accused Top Singh, who was working as Peon in the Panchayat Office in that village. Complainant Bharatlal thereafter went to that village and enquired from Top Singh about his wife. At this, Top Singh told him that his wife is living with him and he has kept her as his wife and there is no question of sending her with him. He thereafter returned back and went to the police station to lodge a report. Such circumstances were held to be valid proof of adultery and Top Singh was convicted.
Different courts across the country have held a variety of cases to be adultery. Some of the circumstances that constitute the commission of adultery are:
Wife had been absenting herself from her house for some times and seen in the company of a stranger to the family of her husband without reasonable explanation or any explanation.
Unrelated person found alone with wife after midnight in her bedroom in actual physical juxtaposition.
Child born beyond the period of twelve months after the cessation of marital consortium between the spouses.
Evidence on post-suit adultery is admissible to prove and explain other evidencegiven in the case and to show the character and quality of the previous acts.
Paramour’s letters indicating facts of illicit relationship.
Admission of adultery by wife through letters.
Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
A solitary instance of voluntary sexual intercourse by wife with other person is enough.
Wife left her husband and was living at her parent’s house. The allegation by husband that she became pregnant there without his access to wife. Statement by wife that husband used to visit her parents house and stayed overnights and cohabitated with her. Wife failed to examine her parents or any other witness in support of her statement. There was no interference with the decree of divorce granted against the wife.
Certain cases were not held to be adultery by the courts. Examples are as follows:
The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
No conclusion of adultery where the wife was found going on the scooter of some other person or talking with someone other than her husband.
No corroboration to prove adultery of wife when she remains in a room with door though shut but unbolted at 10 p.m. with another person when the mother of the husband and five grown-up children were present in the house.
Mere fact that some male relation writes letters to a married woman does no necessarily prove that there was illicit relationship between the writer and recipient of the letters.
Wife becoming pregnant after husband had undergone vasectomy operation without proving that the operation was successful, no illicit relationship of wife can be presumed.
Serious doubts may be raised as to the allegation of adultery of wife when the husband makes no such allegation in the notice for divorce prior to the filing of the suit.
Where the husband files the petition for divorce 8 years after he came to know that his wife has committed adultery and has not explained the reason for the inordinate delay alone.
Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an adulterous act.
Masturbation of co-respondent by wife is not adultery.
Allegations of the husband that he saw his wife talking with other persons on three occasions in daytime without any physical contact are not sufficient.
Apart from pressing criminal charges, the other remedy available to the aggrieved party is to seek divorce under section 13(1)(i) of the Hindu Marriage Act, 1955. In a suit for divorce, it is easier to prove adultery and the element of mens rea that is intention is not necessary to establish. The husband can seek divorce from his wife on the pretext of adultery, and the necessary ingredients to prove adultery in this case is similar to the criminal trial.
 Kashuri v Ramaswamy (1979) Cr LJ 741 (Mad).
 WJ Phillips v Emperor AIR 1935 Oudh 506.
 Vedavalli v MC Ramaswamy AIR 1964 Mys 280.
 AS Puri v KC Ahuja AIR 1970 Del 214.
 State of Rajasthan v Bhanwaria AIR 1965 Raj 191.
 AIR 1967 Mad 254.
 (1949) 1 All ER 938.
(1952) 2 All ER 784.
 AIR 1955 MB 103 (FB).
 AIR 1958 SC 0441.
 1995 (0) MPLJ 1050