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1. The wife is the petitioner. She has sought divorce on the ground that the husband is guilty of bigamy with adultery. The husband remained ex parte. The wife has given evidence deposing that the husband has married another woman. The learned District Judge, on the basis of the evidence adduced by the wife, granted a decree for divorce. The said decree has come up before us for confirmation.

2. The amicus curiae, appointed for the respondent, has raised a contention that there is no allegation in the original petition or proof in the evidence of any adultery on the part of the husband. According to him, the evidence makes out only bigamy and not bigamy with adultery. For this purpose, he places reliance on the definition of adultery in Section 497 of the Indian Penal Code. Under that section, necessary ingredient is that the woman concerned is the wife of another man. According to learned Counsel, in this case, the husband is only having, if at all, intercourse with a woman, whom he has married and she not being the wife of another woman he is not guilty of adultery as defined by Indian Penal Code.

The question is not res integra. This High Court had to consider, at the end of the fast century, as to whether the definition contained in the Indian Penal Code of the word 'adultery' would apply to a proceeding under Section 488 of the Code of Criminal Procedure for maintenance filed by the wife. In Gantapalli Appalamma v. Gantapalli Yellayya I.L.R. 20 Mad. 470, the Magistrate was satisfied that the husband was living in adultery and granted maintenance. On the facts, it was found that the husband in one case was living with a widow and in another case with a concubine. The Sessions Judge made a reference to the High Court on the ground that adultery alleged in those cases was not within the definition of the said offence in the Indian Penal Code. Section 4 of the Code of Criminal Procedure, which prevailed at that time, provided that all the words and expressions used therein and not defined but defined in the Indian Penal Code, will have the meanings respectively assigned to them in the later. Referring to that provision, the Full Bench of this Court held that the word 'adultery' used in Section 488 of the then Code of Criminal Procedure should not be interpreted in the narrow manner indicated in Section 497 of the Indian Penal Code. It was said that with reference to the provision under Section 4 of the Code of Criminal Procedure, if a different intention appears from the subject or context, the meaning given to the said expression in the Indian Penal Code would not apply and in the context of Section 488, Code of Criminal Procedure, the strict definition of Section 497, Indian Penal Code would not apply.
Voluntary sexual intercourse of married person with one of opposite sex married (double adultery) or not (single adultery).
No doubt, under Section 497, I.P.C. in order that a man can be guilty of adultery, the actual definition of the offence runs thus : 'Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of an other 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'.
Only one form of adultery has been made punishable by that section. It will be noted that under that provision a married woman is not guilty of adultery even as an abettor. If there is consent or connivance of the husband, then there will be no offence of adultery. There is no reason why this specialised definition of adultery should be extended to the interpretation of Section 32 of the Indian Divorce Act. It may be noted that under that section, the husband may obtain a decree of Judicial separation on the ground of adultery committed by the wife, though as we have seen, under Section 497, I.P.C. the wife will not be guilty of the offence of adultery under Section 497, I.P.C. This itself shows that the narrow definition of adultery in Section 497, I.P.C., cannot be applied to the interpretation of the terms of Section 22 of the Indian Divorce Act, 1869. Further, the principle underlying the relief of judicial separation on the ground of adultery of the spouse, namely, violation of the marriage bed, makes it immaterial whether the woman with whom the husband has sexual relationship is a married woman or not. The offence under Section 497, I.P.C. is against the husband with whose wife another man has committed adultery. But wider considerations apply when a husband or wife seeks judicial separation or dissolution of the marriage on the ground of adultery. In the latter case, it is the violation of the marriage tie which is relevant.