Category Archives: Indian Laws Explained

Why Adultery Is Not An Offence For Women In India

It may seem a little bizarre but it’s true that women in India can’t be prosecuted for an offence of adultery. I’ll try to answer this with the help of the discussions, suggestions and recommendations on record. Now first let’s look at the exact definition of Adultery under Section 497 of the India Penal Code:-

Section 497. Adultery –

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.

For a complete understanding of the offence of adultery, a reading of Section 198(2) of the Code of Criminal Procedure, 1973 is also important, which reads as under:-

198. Prosecution for offences against marriage:

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that— …

(2) For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

On a careful reading of the above provisions, you can see that Section 497 of the Indian Penal Code perceives a “consensual” sexual intercourse between a man, married or unmarried, and a married woman without the consent or connivance of her husband as an offence of “adultery”. Which also means that the offence of adultery is committed only by a man who has sexual intercourse with the wife of another man, without his consent or connivance, and that the wife is not punishable for being an “adulteress”, or even as an abettor of the offence for which the man can be sent to jail for 5 years.

On a slightly deeper level, it also means that a sexual intercourse between a married or unmarried man, and an unmarried woman or a divorcee or a widow, does not come within the ambit of “adultery”. Continue reading →

Understanding Adultery – Grounds For Divorce In India

In a survey conducted by Ashley Madison, a global dating website, it was revealed that 76% of Indian women and 61% of Indian men don’t think that infidelity is a sin or immoral. People may not find infidelity a sin or immoral, but I would like to remind you that adultery is illegal as per Section 497 of the Indian Penal Code, 1860 which reads as under:

497. Adultery —

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.

Adultery is also one of the valid grounds for divorce in India under Section 13(1)(i) of the Hindu Marriage Act, 1955 which reads as under:

13 Divorce —
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party;
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

With the legal provisions out of the way, allow me to explain as to how exactly the concept of adultery is understood as a ground for obtaining divorce before Indian Courts. Continue reading →

Grounds for Divorce as per Hindu Marriage Act in India

The Hindu Marriage Act provides a lot of grounds for divorce, which a spouse can seek in order to obtain divorce in India. Although marriage, according to Hindu Law, is a holy sacrament and not a contract, and that the husband and wife are considered one in law. Despite that, problems and tensions may develop between husband and wife and may escalate to such an extent that separation by way of divorce may seem to be the only option left. Seeking a divorce is no doubt a big and bold step for either of them, but at times, it may be the only solution to a long term problem.

What is the Procedure for Divorce in Delhi?

Marriages solemnized under the Hindu Marriage Act, 1955 can also be brought to an end by following the conditions laid down under the same Act. You may wish to go through my earlier blog post on Applicability of Hindu Marriage Act, 1955 to determine whether the Act is applicable to you or not.

Procedure for seeking Hindu divorce as per Hindu Marriage Act, 1955 is provided under Section 13 of the Act, which states that any marriage solemnized whether before or after the commencement of the Act, may, on a divorce petition presented by either the husband or the wife, be dissolved by a decree of divorce. You may also wish to go through my earlier blog post on Conditions for a Valid Marriage under the Hindu Marriage Act, 1955 to determine whether your marriage is governed by the Act or not.

The procedure for legal contested divorce in Delhi starts by either the husband or wife engaging a Lawyer, who will draft a divorce petition as per the facts narrated by the person and on the basis of the grounds provided under Section 13 of the Hindu Marriage Act, 1955 before a Family Court Judge as per the territorial jurisdiction. Pursuant to the reply filed by the other side, trial will begin and both the parties would lead evidence in support of their claims and arguments. Finally, based on the arguments and evidence on record, the Judge will pass appropriate orders. Continue reading →

Conditions For A Valid Marriage Under The Hindu Marriage Act, 1955

There are certain conditions which must be adhered to for a valid marriage between two Hindus under the Hindu Marriage Act, 1955. Violation and non-adherence of any of these conditions would not constitute a valid marriage.

First of all, the groom should have completed the age of 21 years while the bride should have completed the age of 18 years at the time of their marriage. In case, either the groom or the bride was not of the requisite age at the time of marriage, then the same would be termed as a ‘Child Marriage‘. However, such a marriage would not be ‘void’ in the eyes law, but would only be a ‘voidable’ marriage and that under the Prohibition of Child Marriage Act, 2006 the aggrieved person can file a petition before the appropriate Court for getting the marriage annulled.

The next condition is that neither the groom nor the bride should have a living spouse or an existing valid marriage, at the time of his/her marriage. In case a marriage is solemnized while there is a living spouse or that the earlier marriage has also not been set aside by way of a decree of divorce/annulment, then such a marriage would be ‘null’ and ‘void’ from the very beginning and that a decree of nullity can be obtained by filing a petition under the Hindu Marriage Act, 1955. It is also important to note that in such a marriage, the person who had a living spouse or an existing marriage, would become liable for prosecution for adultery under the Indian Penal Code.

It is also an essential condition that both the bride and the groom should be capable of giving a valid consent for the marriage. The consent should not have been obtained by fraud, misrepresentation, intimidation or persuasion. It is also important that neither the groom or the bride should be suffering from unsoundness of mind or any kind of mental disorder so as to render the person incapable of giving a valid consent to the marriage or be mentally unfit to marry. Such a marriage would be a ‘voidable’ marriage and can be annulled by a decree of nullity under the Hindu Marriage Act, 1955.

Now one of the key factor for a valid marriage under the Hindu Marriage Act, 1955 is that the groom and the bride should not be ‘within the degrees of prohibited relationship‘ if they are related to each other and should also not be ‘sapinda‘ of each other. For simple understanding, a person cannot have a valid marriage with his/her mother, father, grandmother, grandfather, brother, sister, uncle, aunt, nephew, niece, first cousins and any other close relationship similar to these. The only exception would be if the personal custom and usage governing the persons permits just a marriage but these customs must not be unreasonable or opposed to public policy or abhorrent to decency.

If all the conditions mentioned above are satisfied, then a marriage between a groom and a bride would be considered as a valid marriage in the eyes of law under the Hindu Marriage Act, 1955.

Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.

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Applicability Of Hindu Marriage Act, 1955 In India

Getting married is one of the biggest life changing experience one goes through during lifetime. One may either opt for the traditional way of spouse hunting i.e., letting the parents and relatives decide, or if one is fortunate enough to be in a relationship which is strong enough, one may choose to break the news to family and hopefully come out of it alive. Whichever way one chooses to settle down, one has to do so within the limits of the laws governing marriages in India. Now this post is pertaining to Hindu Marriage Act, 1955 and although it is enacted as ‘Hindu Marriage Act‘ in India, it applies not merely to Hindus by religion, but also applies to Sikhs, Jainas and Buddhists. So basically, the Hindu Marriage Act, 1955 applies to:

Any person who is a Hindu by religion in any of its forms or developments.
Any person who is a Hindu including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
Any person who is a Buddhist, Jaina or Sikh by religion.
Any other person, excluding a Muslim, Christian, Parsi or Jew by religion, domiciled in the territories to which the Hindu Marriage Act, 1955 extends, unless it is proved that any such person would not have been governed by Hindu Law.

Now in further explanation of who is a Hindu, Buddhist, Jain or Sikh by religion for the purpose of applicability of the Hindu Marriage Act in India, it is provided that:

Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.
Any child, legitimate or illegitimate, one of whose parents are Hindu, Buddhist, Jain or Sikh by religion. In this case, the child must have been brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.
Any person, who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.

Shall be governed by the Hindu Marriage Act, 1955.

This was only a brief introduction pertaining to the applicability of the Hindu Marriage Act, 1955 in India. The legal procedure for getting married under the Act, and other complications arising out of such a marriage would be discussed in future posts.

Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.

Follow On:

If you like what I write, please spread the word by sharing it on your social networks as well. Thank you.