“B” a boy has sexual relationship with “W” a woman who is the wife of “M” a man. B the flirt knows it or he has reason to believe that W is the wife of poor M. M has neither given his consent nor connivance to B for such sexual intercourse. Though such sexual intercourse by B will not amount to rape, but B shall be guilty to the offence of Adultery. B 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 W wife shall not be punished as an abettor.
Adultery is defined and made punishable under section 497 of the Indian Penal Code, 1860.
In order to constitute the offence of adultery, following ingredients are essential :
1.The accused ( B) had sexual intercourse with a woman (W); 2.The woman (W) concerned was wife of another man (M) having been lawfully married to him ; 3.The accused (B) knew or had reason to believe that the woman(W) was so married; 4.There was no consent or connivance on the part of the husband (M) of the victim woman.
Hon’ble Supreme Court in V. Revathi –Vs- Union of India AIR 1988 SC 835 made observation that this section deals with the offence committed by an outsider to the matrimonial unit. Sec 497 is so designed that a husband can not prosecute the wife for defiling the sanctity of matrimonial tie by committing adultery. The law permits neither the offending wife nor the disloyal husband to prosecute each other. It is the outsider who violates the sanctity of the matrimonial home, is punished.
Hon’ble Supreme Court in Soumithri Vishnu –Vs- Union of India AIR 1985 SC 1618 : 1985 Cr.L.J 1302 in a petition which challenged the constitutional validity of Sec 497 on the ground that this section makes an irrational classification between men and women because it :
1.Confers upon the husband, the right to prosecute the adulterer, but does not confer any corresponding right upon the wife to prosecute the...