Adultery is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, being a mistreatment of the marriage relationship.
Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalising adultery.
However, even in jurisdictions that have decriminalised adultery, it may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model.
International organizations have called for the decriminalisation of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: “Adultery must not be classified as a criminal offence at all”. A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: “Adultery as a criminal offence violates women’s human rights”.
In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning.There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, and several U.S. states. In some jurisdictions, having sexual relations with the king’s wife or the wife of his eldest son constitutes treason.
Adultery was a criminal offence under Chapter XX of the Indian Penal Code until it was quashed by the Supreme Court of India on 27 September 2018 as unconstitutional. Under Section 497 of the Indian Penal Code, which was the section dealing with adultery, a man who had consensual sexual intercourse with the wife of another man without that husband’s consent could have been punished for this offence with up to five years imprisonment, a fine or both. When first enacted in 1860, the wife could also be punished as abetting the offence.
The Supreme Court called the law unconstitutional because it “treats a husband as the sole master.” However it is still a sufficient ground for divorce as ruled by the Supreme Court.
Classification of offence
The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.
The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].