In what scenarios, is adultery not punishable?

Question

According to below post, Hindu (& even other religious) texts condemn Adultery:
Clarification regarding adultery, extra-marital relations

From wiki article, however Hinduism has diverse views:

Ancient texts of Hinduism offer different views on adultery. For example, Wendy Doniger notes Rigveda verse 4.5 as declaring adultery is evil.[92] A more nuanced view is expressed in some smritis. Richard W. Lariviere notes[93] that verse 13.60-61 of Nāradasmṛti qualifies when adultery is not a punishable crime; for example, if a woman comes to a man's house on her own volition and has consensual sex with him even though she is not married to him, then it is not adultery. Further, sex with a married woman was not a punishable crime provided the woman initiates the sex of her own volition, and she has been abandoned by her husband or if her husband is eunuch or her husband does not care. Another text, Manusmriti, declares adultery by husband or wife to be wrong, as well as includes a discussion about sex outside marriage after both the husband and wife consent.

Now the bold text above, is similar to what I read few year back, in a news addition by Swami Sacchidananda, where he suggested something similar for widows [mostly without scriptural basis].

Are there such texts, which suggest scenarios when adultery [may be wrong, but] is Not punishable?

Answer 1

The following verse from Manu Smriti gives the impression that a woman can perform adultery when her husband is unwilling.

Manu Smriti 8.317. The killer of a learned Brahmana throws his guilt on him who eats his food, an adulterous wife on her (negligent) husband, a (sinning) pupil or sacrificer on (their negligent) teacher (or priest), a thief on the king (who pardons him).

And, there are also the following verses from Atri Smriti, which too give the impression that a woman can commit adultery without accruing any sin.

A woman is not rendered guilty by her connection with her paramour, »or a Brahmana by his performance of non-Vedic rites, nor a (river) water, by urine and excreta ; nor fire, by burning impure articles. (194). Women were first enjoyed by the Celestials ; then, by the moon, the Gandharvas and the Fires. Afterwards came men to enjoy them. They are never affected by any sin." (195)

But, that impression is not correct. When women commit adultery but do not conceive, then they get rid of such a sin during their flow of menses. So, that sin is not a big issue. No special punishments are necessary as purification happens naturally.

But if conception happens, then penances are prescribed, because abortion can not be performed (as it is the most heinous crime) and if the progeny is born then that just adds to the confusion of castes. So, then it becomes a big issue and punishable offence.

See the following verse from Yajnvalkya:

II.—The purification from unchastity is at the season ; in case of conception her abandonment is ordained. So also in case of causing abortion or killing a husband or committing a heinous crime, and the rest, --72.

Yajnavalkya Smriti

So, the import is, if it's simply a case of adultery (minus conception, abortion) then that sin is automatically atoned for a woman. No other punishments are being required or prescribed.

In his commentary on the Yajnavalkya Smriti, Mitakshara, quotes from various scriptures to prove this point (that women committing adultery is never allowed by scriptures).

mitAksarA.

"The unholiness that arises from unrevealed mental chastity, I.e., from enjoying another man in imagination, is purified at the *' season," i.e., menstruation. When conception is produced by (adulterous intercourse) with a friend, she should be abandoned. CHAPTER III—MARRIAgE, v. LXXIL 139

As it has been said in Vasista-smriti (XXI. 12):-—" The wives of Bralimanas, Ksatriyas, and Vaifiyas who commit adultery with a Sudra may be purified by a penance in case no conception has taken place (from their adulterous intercourse), not otherwise." So also in "causing abortion," in '* killing the husband," and in " committing a heinous crime," such as killing a Brahmana and in having adulterous intercourse with a pupil, &c., (this being implied by the use of the word *' and the rest " in the text) she should be abandoned. As it has been ordained by VYASA (Vasistha XXI. 10.) "But these four wives must be abandoned, viz.^ one who yields herself to her husband's pupil, or to his Guru, and especially one who attempts the life of her lord, and who commits adultery with a man of a degraded caste (Junghita)." The Junghitas (outcastes) are the descendants of Pratilomas, such as leather-tanners &c. The abandonment should be by not having any carnal connection with her, and by not allowing her to join in any religious ceremonies and does not mean that she should be driven out of the house, because of the rule " she should be kept confined to one apartment " (Manu XL 176 or 177).

" If (a wife) has been mentally unfaithful to her husband, she shall live on barley or rice boiled in milk during three days, and sleep on the bare ground. After the three days (have expired), the (husband) shall offer eight hundred burnt oblations, (reciting) the Savitr (and the Mantra called) Siras, while she is immersed in water. It is declared in the Veda that she becomes pure (thereby),

*' If (a wife) has held an (improper) conversation (with another man), she must perform the same penance during a month. After (the expiration of) the month, (the husband) shall offer four times eight hundred burnt-oblations, (reciting) the Savitri (and the Mantra called) Siras, while she is immersed in water. It is declared in the Veda that she becomes pure (thereby)." The meaning of the word " Aprajata " in the above verse of Vasistha is, " when no conception has taken place" (and it does not mean, " when no child is born,"

balambhatta' gloss.

In the case of revealed mental unfaithfulness, the rule of three days' fast &c., as laid down in Vasistha (as given in the above note) should be observed. In case of unrevealed mental unfaithfulness, there is no open penance, and so Vijnanesvara says " unrevealed," t.e., not known to any second person (not even to her husband, that she has been mentally unchaste). This mental unchastity consists in thinking to have intercourse with another person. Therefore Vijnanesvara uses the milder term, " unholiess," and not the harsher term, " sin." The wives may be abandoned in the four cases mentioned by VYaSA, also in some other cases mentioned by Vasistha.

So also Devala and Narada (XII. 90-94) ;— *• When husband and wife leave one another, from mutual dislike, it is a sin, except when a woman, who is kept under supervision, commits adultery. *' When a married woman commits adultery, her hair shall be shaved, she shall have to lie on a low couch, receive bad food and bad clothing, and the removal of the sweepings shall be assigned to her as her occupation. One who wastes the entire property of her husband under the pretence that it is (her own) Stri-dhana, or who procures abortion, or who makes an attempt on her husband's life, he shall banish from the town. One who always shows malice to him, or who makes unkind speeches, or eats before her husband, he shall quickly expel her from his house. *' Let not a husband show love to a barren womatt, or to one who gives birth to female children only, or whose conduct is blamable, or who constantly contradicts him ; if he does (have conjugal intercourse with her), he becomes liable to censure (himself)."

So also Yama :— '* A wife who does not approach her husband in season, and thus kills the embryo, should be exiled, after proclaiming her through the village. She who owing to hating her husband does not approach him in season must be proclaimed to the kinsmen, and exiled since she is a killer of the foetus."

So also Baudhayana :—" Wise men quickly abandon that wife who is illtongued, undutiful, barren or unchaste, and hating her husband. A wife, who does not give birth to a child, should be renounced in her tenth year of marriage, and in her twelfth year, if she gives birth to female children only, and in her fifteenth year, if she gives birth to dead children only, but a wife must be renounced at once» if she is unpleasant-speeched."

So also Harita :— " Let him abandon the wife who kills the embryo, or commits adultery with a person of low caste, or with a pupil, or with one related to her as a son, or who is addicted to drink and other vices, or who wastes wealth and property."

So also Yama :—" The abandonment of that wife is enjoined, who is independent in her movement. A woman should never be killed, nor deformed by mutiliation. Manu-Vaivasvata has enjoined the renouncement of the wife, who is independent and adulterous. He has also ordained that a woman should never be killed, nor deformed."

Answer 2

Yes, there are circumstances under which adultery is not punishable. One can refer to Yayati-Devyani-Sarmishtha story in Sambhava Parva.

Sarmishtha answered, 'O monarch, one may look upon her friend's husband as her own. One's friend's marriage is the same as one's own. Thou hast been chosen by my friend as her husband. Thou art as much my husband, therefore.' Yayati then said, 'It is, indeed my vow always to grant what one asketh. As thou askest me, tell me then what I am to do.' Sarmishtha then said, 'Absolve me, O king, from sin. Protect my virtue. Becoming a mother by thee, let me practise the highest virtue in this world. It is said, O king, that a wife, a slave, and a son can never earn wealth for themselves. What they earn always belongeth to him who owneth them. I am, indeed, the slave of Devayani. Thou art Devayani's master and lord. Thou art, therefore, O king, my master and lord as much as Devayani's! I solicit thee! O, fulfil my wishes!'

To provide a quick background, Sarmishtha was Danava king Vrishaparvan's daughter. Devyani was Shukracharya's daughter, and Yayati ofcourse a king. Sarmishtha was Devyani's "maid in waiting" and also companion. She accompanied Devyani after the later's marriage to Yayati. In the above paragraph, she was explaining when it is ok to commit adultery. And it seems that both from a friend and slave perspective, Yayati could sleep with her because she was asking to be conceived which is the highest virtue.

Ofcourse Shukracharya still ended up throwing the decrepitude curse on Yayati because Yayati had promised Shukracharya that he won't sleep with Sarmishtha without his permission. He was not cursed because of adultery.