volenti non fit injuria

Sunita was married to Anant Sharma for ten years. She had two children from the blissful relationship. One day she discovered that her husband was involved with his colleague Sameera, who was fully aware of his marriage. Unfortunately the court can prosecute neither Anant nor Sameera for adultery according to the Indian Penal Code.

Section 497 of Indian Penal Code declares adultery as a crime. However to constitute the offence a man should have consensual intercourse with a married woman.  Sexual intercourse which is a must take place, is often established by circumstantial evidences. Under the Section 497, only a man can be prosecuted and woman cannot be termed as a abettor. The entire burden of crime rests on the man alone, for seducing the woman and interfering in her marital life.

It is necessary that the woman should be married and sexual intercourse between a widow, prostitute or unmarried woman and a married man would not attract any punishment under the present section.

The consent of the husband is taken as a defence in the cases of adultery. If a husband consents or does nothing to oppose the adulterous behaviour of his wife. The same. Wife’s lover cannot be charged of adultery. If the argument of volenti non fit injuria (what is voluntary cannot injure) is taken as a defence in such cases, then wife swapping cannot be deemed as a crime in the country. In wife swapping couples exchange their spouses for sexual intercourse. In cities like Bangalore, Delhi, Jaipur, Mumbai, Chennai, Chandigarh etc practice of wife swapping is gaining momentum.

Even Though the Section clearly states that the sexual intercourse must be consented and must not amount to rape (Section 365). The consent of woman and not that of husband is important. If the husband consents but the wife does not the accused would be prosecuted for rape under the section 375 of IPC.

The provision treats women as chattels and property of their husbands. Where on one hand it recognizes that woman can transgress their marital boundaries on the other hand it imposes no punishment on their husbands for the same acts. If a man has extra-marital affairs with a unmarried woman, widow or prostitute, the wife has no recourse against her husband or the other woman. Only the husband has the right to charge his partner for adultery, no such right is granted to wife.

In Yusuf Abdul Aziz vs State, Constitutional validity of the provision was challenged but the Supreme Court held otherwise. The Supreme Court observed that woman was a victim and not the seducer in the crime. It further stated that the law allows the spouses to make up and  gives them an opportunity to save their marriage.

Social deterrence is required to control offences such as adultery. Adultery is not only a crime against ones partner but its also effects the society at large. It shatters the beliefs and trust of one’s children, relatives and other acquaintances. It is a crime which can never be controlled solely by law. This deviant behaviour of adultery can be avoided by building better understanding between spouses. Morality and mutual trust comes from within and no external agency can impose it entirely. I believe that the victims must still be given some legal recourse in such cases. It would definitely deter such offences to some extend. The punishment (5 years) prescribed must be scaled down but provision of compensation to the victims must be added. The male spouses must maintain their wives in the same manner as before the institution of proceedings.

The law must impose uniform punishments on both the partners of crime. The irrational classification between man and woman, in limiting the class of offenders to men  it violates Articles 14, 15 & 21 of the constitution. The same punishment must be imposed on married men and their accomplice. Since wife swapping is becoming a prevalent practice these days, both the legislature and the courts must define “consent of the husband” more vividly. If the law is amended and adultery by both husbands and wives is punished then the word “consent or connivance” must be abrogated. It should be done because sometimes the wives due to numerous reasons are unable to oppose the deviant behaviour of their husbands. In these circumstances the husband must not be granted the defence of “volenti non fit injuria”.