SAGA OF ADULTERY LAW IN INDIA
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Abstract
Indian Penal Code has a provision on Adultery. According to the same Adultery is defined as, “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.” In laymen terms adultery is an offence involving sexual intercourse with a man’s wife without his consent. Law of Adultery in itself is archaic. The roots of such laws can be found in Ur-Nammu which is the oldest code and recognized concepts of law for the very first time. It is named after a Sumerian King Nammu who is credited with establishing the third dynasty of Ur. According to the code, “If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male” and “If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.” However in Indian Penal Code there was no punishment for wife, according to the code of Ur- Nammu it is a capital offence and if wife turns out to be adulterous then punishment is to be death penalty. Ingredients of Adultery are that there needs to be sexual intercourse between parties. Proving sexual intercourse between parties is locus classicus to section 497 of Indian Penal Code. It there was no sexual intercourse and the act was just at preparatory stage then provisions in relation to adultery are not attracted. The adulterer must have the knowledge or sufficient grounds to believe that adulterous woman is a lawful wife of another man. Marriage between aggrieved man and his wife should be valid in the eyes of law and lastly consent of the man was not to be obtained prior to such intercourse.
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