- That the accused had sexual intercourse with the woman in question;
- That she was the lawful married wife of another man;
- That the accused knew or had reason to believe that she was the lawfully married wife of another man;
- That the husband of the woman did not consent to or connive at such intercourse;
- That the sexual intercourse so had did not amount to rape.
Adultery is not an offence under the English Law, and some of the most celebrated English Lawyer have considered its omissions from the English Law to be a serious defect.
The cognizance of this offence is limited to a adultery committed with a married woman, and the male offender alone had been made liable to punishment. Thus, under the Indian Penal Code, adultery an offence committed by a third person against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried woman, or with a widow, or divorced woman or even with a married woman whose husband consents to it.
It must be noted that wife can be punishable as an abettor. It is now felt that , with the advance of civilization, it would be more consonant with Indian ideals, if the woman also is punished for adultery.
Defences available to accused:- The following defences are available to the accused of adultery-
- There was not sexual intercourse.
- The accused did not know the woman to be the wife of another;
- The husband of the woman consented to or connived at the act of intercourse; or
- The complainant was neither the husband of the woman nor any other person permitted to prefer such complaint under Cr.P.C.
The punishment for adultery is the imprisonment for five years, or fine or both.
Burden of Proof:- It is very difficult to produce direct evidence to prove an act of adultery. Adultery is a matrimonial offence as well as a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. Thus the offence of adultery may be proved by:
- Circumstantial evidence
- By evidence as to non-access and birth of a child
- By evidence of visits to brothels
- By contracting venereal diseases
- Confession and admission to parties
- Preponderance of probability