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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, the 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, ifatall,intercoursewithawomanwhomhehas married and she not being the wife of another man, he is not guilty of adultery as defined by Indian Penal Code.

6. The question is not res intergra. This High Court had to consider, at the end of the last 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 Genatapalli Appalamma v. Gantapalli Yellayya (I.L.R. 20 Madras 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 latter. 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.

8. In Gomes v. Gomes, , a Special Bench of the Calcutta High Court held that the definition of 'adultery' found in Section 497 of the Indian Penal Code has no application to a proceeding for divorce under Section 10 of the Indian Divorce Act. The Bench has pointed out that the word 'Adultery' has been used in a wider sense in Section 10 of the Indian Divorce Act than the definition contained in the Penal Code. The Bench has relied on the definition given in latter on divorce and Murray's Oxford Dictionary as the true meaning of the word 'adultery', which has been used in Section 10 of the Indian Divorce Act. The Bench placed reliance on the Full Bench Judgment of this Court Gantapalli Appallamma's case (I.L.R. 20 Madras 470).

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 on judicial separation of 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."