This article has been written by ELAVARASI. P from THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY

Table of Contents

INTRODUCTION:

Relationships are harder nowadays. Do you know why? One of the main reasons is communication. Due to modern technologies and people’s reliability in it, communication in person is being very less. People wouldn’t talk face to face but chat in online with unknown people as if they are well known and there are more number of married persons who develop feelings for them resulting in cheating. As we all know Marriage is a sacred relationship completely made up of “Trust”. “Adultery” is the breakage of that trust in the marital relationship. It is considered to be a social evil which destroys marital life. Another societal evil includes Rape. One is a civil wrong while other is a criminal offence. In this short article, let’s discuss about Adultery in detail and the difference between Adultery and Rape in detail.

ADULTERY:

Adultery not only ends the marriage but also the trust between the spouses. So what’s Adultery ? And what is considered to be an Adultery? Whoever considered to be a married person having a sexual intercourse with other person who is clearly not his/her spouse only with the voluntary consent which is not amounting to rape is considered to be an Adultery. Adultery is not a rape because it involves voluntary consent of both the parties involving in the sexual activity , but it is a breach of trust in a marital relationship which is considered to be punishable. It’s also called as Infidelity. In simple term it is a voluntary sexual intercourse outside the marriage.

Earlier adultery is considered to be a criminal offence but in case of Joseph shine v. union of India, It is declared that section 497 of Indian Penal Code and section 198(2) of CrPC is declared to be unconstitutional because it violates Article 14,15 and 21 and thus declared that adultery is not a criminal offense. At present, Adultery comes under civil laws and is now a ground for divorce.

SOCIETAL NORMS AND PERCEPTIONS ON ADULTERY:

What is the Societal View on adultery? Do they oppose it or support it? Adultery is an extra marital affair. In most of the cultures, sexual intercourse outside the marriage is considered to be Unacceptable and sometimes illegal. In some of the customs, it is ethically right if the spouses have a extra marital affair with another spouse with the consent of the spouse.

As for the premarital sex various cultural norms says that it is unethical to have a premarital sex, they call it as fornication. While some other cultures accept and allows it under their culture allows it. At present due to the influence of western culture few societies accepts premarital sex as normal.

In India, Bengaluru is considered to be the “country’s infidelity capital”, as it is the most adultery committed area. As per the survey conducted by various institutions, it is came to know that men are committing more adultery than women and the main reason for that is because of boredom, desire for sexual excitement and lack of sexual satisfaction. To commit Adultery the reason shall not be only having marital problems between spouse but also above said reason and more.

RELATED PROVISIONS:

Section 497 of IPC – Struck down by the court, court decriminalized this section. It defines Adultery and gives it’s punishment.
Section 198(2) of CrPC – Also Struck down by the court, deals with procedure for filing complaint of adultery.
Section 13(1) of Hindu Marriage Act 1955 – Adultery is a Ground for divorce.
Section 10 of Hindu Marriage Act 1955 – Adultery is one of a ground for Judicial Separation.
Section 27 of special Marriage Act 1954 – Adultery is an independent ground to get divorce.
Section 22 of Indian Divorce Act 1869 – Christians can file for Judicial separation based on Adultery as the ground.
Section 2(viii) (b) of Dissolution of Muslim Marriage Act 1939 – wife can sue husband on ground of cruelty when he leads a life with another women( this covers adultery in it).
Muslim law says Adultery as Lian and it deals with allegation of adultery. As per Dissolution of Muslim Marriage Act 1939, It says that if a husband falsely accuses wife on adultery and it is proved that it is a fake allegation then wife can get divorces on basis of false allegation on adultery.
Section 125(4) of criminal procedure code (CrPC) – It says that wife will not be allowed to have maintenance if proved to be in adultery.
Section 497 of IPC – If a man commits adultery then the women shall not be liable for the abetment of husband to commit adultery. She shall not real not be liable for abetment.

CASE LAWS:

In case of Smt. Sowmithri Vishnu v. Union of India (1985) the petitioner challenged the validity of Adultery laws in section 497 of IPC and section 198(2) of CrPC as these sections are violating Article 14 and 21. However the court declared that these provisions are valid and constitutional by considering the sanctity of marriage institution.
However in The landmark case of Joseph Shine v. Union of India (2018) the above said verdict was overthrown in this case. In this case the supreme Court decriminalized the provisions of section 497 of IPC and section 198(2) of CrPC as they are unconstitutional and violating Article 14 , 15 and 21. It also declared that Adultery is not a criminal offence but a civil wrong and are trailed under family courts for the purpose of acting as the ground for divorce.
In the case of Pragati Varghese v. Cyril Georg (1997) the High court of Bombay said that Adultery is considered to be an independent ground to get divorce by the women.
In the case of Sari v. Kalyan, 198, the High court of Calcutta said that adultery is a serious matter and it must be proved beyond resonable doubts. Even though the prima facia evidence does not exist the circumstantial evidence needs to be sufficed in Adultery.

RAPE:

Adultery is having a sexual intercourse with other person other than his/ her spouse with consent. what if the sexual intercourse is without consent? It is what we called a Rape.

Section 375 of Indian Penal Code 1870 defines Rape. It says mostly about penetration of penis into the mouth, vagina or any other parts of the female against her own will.
There are some aspects to be considered that the sexual intercourse taken place is rape.
It must be against the will of the women
it must be against the consent of the women
the woman shall give consent under fear or force.
Section 376 of Indian penal code says about punishment for Rape.

It is the most heinous and prevalent in India . There are also some exceptions to it like;

Medical treatment
Sexual intercourse by husband with his wife ( above 15 years).

CASE LAWS:

In the case of Mukesh & Anr v. State for NCT of Delhi & Ors. ,The highest penalty for Gang Rape was given , that is Death Penalty. This case made the people boil with anger as the girl Nirbhaya was cruelly gang raped and was murdered. The accused persons were put to death sentence to uphold justice.
In case of Rafik v state of UP the justice in this case said that murder is killing the body while raping a women is like killing her soul and those perpetrators who killed their soul must be given severe punishment so as to give justice to that women. For this section 375 of IPC plays a vital role.
In case of Dileep Singh v. State of Bihar the accused falsely Promised the victim that he would marry her and had a sexual intercourse with that girl. They continued to have a sexual relationship. When the girl become pregnant, the accused person refused to marry her and said that the sexual intercourse was done with the consent of that girl and this he is not liable for rape. But the court held that he is liable for rape because he fraudulently promised to marry her and had a sexual intercourse with her. The court also says that the consent obtained by fraud is considered to be no consent and he was liable for rape.
In case of Tulsidas Kanolkar v. The State of Goa, the victim in this case is a mentally impaired women. The accused person took advantage of her mental illness and had a sexual intercourse with her. The accused said that the woman submitted to him during the act and he considered it as a consent given by her so he is not liable. But the court held that the consent given by the person who is mentally impaired shall not be considered as a valid consent and the court also held that the submission of a woman does not mean that she give consent voluntarily. It shall also be given in case of duress , force or coercion. Thus the accused person is held liable for 10 years imprisonment and ₹10,000 fine.

DIFFERENCES BETWEEN ADULTERY AND RAPE:

Sections:

Rape: section 375 of IPC defines Rape. It says mostly about penetration of penis into the mouth, vagina or any other parts of the female against her own will. It must be against the will of the women or against the consent of the women or the woman shall give consent under fear or force or fraud.

Adultery: Section 497 of IPC defines Adultery. Whoever considered to be a married person having a sexual intercourse with other person who is clearly not his/her spouse only with the voluntary consent which is not amounting to rape is considered to be an Adultery.

Punishments:

Rape: section 376 of IPC talks about Punishment for Rape.

Adultery: section 497 of IPC talks about punishment for Adultery but was struck down. Its punishment shall extent to 5 years imprisonment or fine or both.

Consent:

Rape: It is against the will of the women and no consent of women is obtained during sexual intercourse

Adultery: There is a consent between the parties during sexual intercourse.

Who is the victim?

Rape: women are the victims of lustful and inhumane men.

Adultery: Either of the spouse shall be the victim of Adultery.

Is Marriage required?

Rape: No, it is even done to a complete stranger.

Adultery: yes, adultery shall be committed when there is a marital relationship.

Is it physical or mental cruelty?

Rape: During the non consent, forced sexual intercourse it is considered physical cruelty and in some cases the pain suffered by the women is travelled throughout her life time. The after effect of this act results in mental cruelty. Women suffers from a greater mental damage resulting in degrading of her body and mind.

Adultery: Either of the spouse shall suffer both mental and physical cruelty. The trust that’s kept on them is broken and are mentally weakened by this.

When it is not committed?

Rape: when the sexual intercourse is consented by the women each time.

Adultery: when the intercourse is between married partners or not yet married or is a widow or divorced spouse.

Rights:

Rape: there are 6 rights that can be obtained by the victim they are,

Right to Zero FIR
Free medical treatment in any private hospital
No two-finger test during the medical examination
Harassment free and time-bound police investigation
Trial with full dignity, speedy and protection
Right to compensation

Adultery: Here the affected party can get marital reliefs like Divorce, judicial separation and maintenance.

Other countries:

UK

Rape: Rape is an offence under common law of England. They give a maximum punishment of life imprisonment for the criminals.

Adultery: iIt has only a little value in obtaining divorce. The court also not penalize the person who committed adultery.

USA

Rape: USA follows federal law. Here the punishment for rape can range from a fine to life imprisonment. The severity of the punishment for Rape is based on the use of violence, the age of the victim, and whether drugs or intoxicants were used to override consent.

Adultery: Earlier most of the states in USA has laws against Fornication/ Adultery , but at present those laws were abolished and there are only rare cases of enforcement of criminals laws for Adultery. It remains a Class B crime that carries with it the maximum penalty of up to 3 months imprisonment and a $500 fine.

AUSTRALIA

Rape: Every state and territory of Australia has its own legislations that gives punishment for sexual offences. For example sexual offences include Rape in Tasmania (a state in Australia)is punishable maximum of 21 years of imprisonment.

Adultery: Adultery is not a crime in Australia. They consider having sexual intercourse voluntarily with others above 18 years ( even married) is their own private matters . They also repealed Adultery as a ground for divorce in 1975.

SUGGESTIONS:

CHEATING ON YOUR SPOUSE IS LIKE THROWING AWAY A DIAMOND FOR FOOLS GOLD. Its better to end a marriage through divorce than cheat on the spouse for their whole life. The trust and truth makes a harmonious marriage. It’s better not to be blinded by occasional joy.

INDIAN SOCIETY WOULD BE FREE WHEN IT’S RAPE FREE!. Everyone has right to equality and dignity. You will maintain your dignity by maintaining others dignity. The national pledge itself says about “All Indians are my brothers and sisters” , remember it, please. Women are weaker in strength, Men are stronger than women it’s to protect them not to harass them.

CONCLUSION:

In Conclusion, Adultery and Rape both are a clear cut features in the society. The main difference between them is the consent. In Adultery there is a voluntary consent between the parties while Rape is without consent or against the will of a woman during sexual intercourse. Both adultery and rape are morally and ethically wrong in the Indian society especially they are the evils of the society. From the ancient to modern era there are many victims of adultery and rape. Adultery is mainly due to the lust of other person which breaks the trust of marital life. Rape is one of a heinous social evil, it must be completely eradicated. Understanding their differences shall give immense knowledge in the field of legal studies.