Legal Guide

Infidelity is an Offense Under the Laws of India

by Mansi Gehrana · 3 min read

Infidelity

Introduction

  • When one side of a couple unintentionally cheats on the other, it is called infidelity. This is not to say that it must only be physical. If a person tries to form romantic feelings for someone else outside of their existing relationship, that is also considered emotional infidelity. 
  • This indicates that there are affairs on both sides. It’s because even though one partner may not go any further than emotionally interacting with someone else, by allowing undesirable behaviors like this to continue for a longer period of time than necessary, he or she shatters the trust in your partnership. As a result, there are various definitions of infidelity.
  • Infidelity frequently leaves its victims feeling guilty and ashamed of their behavior. They might even use drink and drugs to cope with these emotions.
  • It is also known as “Adultery” under the law of the Indian Penal Code. Always take family legal advice in cases of infidelity. 

How is Infidelity treated under the Indian Penal Code?

The term Infidelity is known by the name of Adultery under the laws of India. In many countries, infidelity (adultery) is regarded as a crime. Most Muslim-majority nations and a few Sub-Saharan African nations with significant Christian populations have laws against adultery, but there are several notable exceptions to this rule, including the Philippines, Taiwan, and a few U.S. states. 

Section 497 of the Indian Penal Code, adultery was a crime in India. Section 497 of the Indian Penal Code, “Adultery/Infidelity –

Whoever has sexual relations with any 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 relations not amounting to the offense of rape, is guilty of the offense of adultery (infidelity) and shall be punished with imprisonment of either description for a term of five years”. 

The wife will not be punished for aiding and abetting in such a situation. Even though women were not punished for adultery, it was still a crime under the legislation since polygamy was still a widespread social practice at the time the rule was put into effect, and wives competed for their husbands’ attention through extramarital affairs.

Women were viewed as victims of the crime of adultery because they frequently went without love and affection from their husbands and were easily influenced by anyone who did or suggested they do so. Therefore, a clause was included to prevent males from having sex with the wives of other men while also limiting their extramarital relationships to just unmarried women.

Infidelity under the Criminal Procedure Code

Infidelity (adultery) is a non-cognizable offense (a case in which a police officer cannot arrest the accused without an arrest warrant). Additionally, it is an offense that is subject to bail.

The spouse of the woman who commits Infidelity (adultery) has the ability to make the offense more serious. Compoundable offenses are ones in which the accused can be cleared of all charges when the court records a settlement between the parties.

If the woman is indulged in Infidelity(adultery) with another man, then she is not eligible to receive a maintenance payment, interim maintenance, or even divorce-related costs.

Decriminalization of Infidelity (Adultery) in India

  • Marriage is a sacrament as well as a legal contract, and society has certain ideas about it. It is not, however, a typical form of contract. The terms of the contract should and can be decided by the spouses themselves. The parties shall have sole discretion as to whether to permit each other to engage in or continue to engage in sexual relations with third persons. 
  • According to the National Commission for Women, adultery should only be considered a civil wrong. The Supreme Court seems to agree that a husband and wife shouldn’t use the legal system to physically harm one another. It is inappropriate to include elements in the Penal Code that govern civil contracts, especially private and personal marriage contracts.
  • The punishment of the adulterer is not and cannot be a solution for the victim of Infidelity (adultery). The goal of an Infidelity (adultery) prosecution is rarely to put the offender in jail and is instead more frequently to negotiate a mercenary settlement with them. In actuality, it was for this reason that the crime of Infidelity (adultery) was left out of the first draft. In this respect, the circumstances are essentially unchanged even now. Section 497 doesn’t seem to have any impact on society. Given this, the majority of western nations have decriminalized adultery.

Can Infidelity be treated as a ground for divorce?

According to the Supreme Court of India, Infidelity (adultery) is not a criminal offense but may be grounds for divorce and subject to civil fines.

Section 13(1) of the Hindu Marriage Act of 1955 states that any willing sexual activity with a person who is not the spouse is cause for divorce. The Hindu Marriage Act of 1955, under Section 10, lists Infidelity (adultery) as a reason for judicial separation.

The provisions for judicial separation on the basis of Infidelity (adultery) are found in Section 22 of the Indian Divorce Act.

Conclusion

  • Decriminalizing adultery is a positive step towards a more progressive society since it eliminates the law that degrades women’s dignity. It is a deviant behavior that undermines the sacredness of the institution of marriage, which is considered a holy institution of society. It is also unethical and immoral.
  • However, we are just halfway there. To remove prejudice and promote gender equality, our nation still has a long way to go. I think society should get past the patriarchal mentality as well.
  • Everyone should be more cautious and attentive towards the institution of marriage and the family system as it is the essential unit of society to protect the sanctity of marriage, which in my opinion, is a requirement in every aspect, whether it be religious, legal, or spiritual. Always take the advice of legal experts in cases of Infidelity (adultery) to save the marriage.

Marriage is a social institution & Infidelity is that curse that breaks it. To know more about the process of filing divorce petitions, get online advice.

Mansi Gehrana

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Mansi Gehrana

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