ADULTERY- A GROUND FOR DIVORCE IN INDIA

If an unrelated person is found along with a young wife, after midnight in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that, which is compatible with an innocent interpretation, the interference, that a court of law can draw is that the two must be committing an act of adultery together. [1]

ADULTERY UNDER HINDU MARRIAGE ACT, 1955

Section 13(1)(i) in the Hindu Marriage Act, 1955 consists of a provision that if any party to the marriage after the marriage has voluntary sexual intercourse with any person other than the aggrieved party, then, a divorce petition can be filed before the Court on the ground of adultery. When a male and a female get married according to the provisions of Hindu law and have a voluntary sexual relationship with some third party outside the lawful wedlock, then it is considered a ground for judicial separation and divorce. Earlier in India, Adultery was a criminal offence but in a recent Supreme Court judgment[2], it was decriminalized. A five-judge bench has struck down Section 497 of IPC because it completely violates Articles 14, 25 and 21 of the Indian Constitution. It was considered discriminatory because it was a consensual act and it should not be a criminal offence.  However, the term Adultery has been defined under Section 497 of the Indian Penal Code.[3]

Though it is not a criminal offence, it can still be considered as a valid ground for divorce which can also be a part of civil law involving penalties. Every personal law in the country including Hindu law condemns Adultery and one single act of adultery will entitle the party to seek divorce under this ground. It is generally assumed that husband committing adultery is comparatively larger portraying them as a seducer and women the victims, whereas if any already married women commit adultery, then the husband has the right to seek divorce. Also when a woman has an illegal adulterous relationship during her entire marriage; she loses the right to claim maintenance from her husband under Hindu law. The husband can refuse to give maintenance to his wife under Section 125(4) of criminal procedure code[4] if she has committed Adultery. Previously,[5] if the husband is keeping a concubine in the same house or living with a concubine separately, the wife is entitled to live separately and claim maintenance from her husband. At the same time merely knowing the address and having the number of the prostitutes will not be taken as a piece of evidence.

However, the act of Adultery has to be proved as matter of fact with substantial evidence for it to make the ground stronger. A mere attempt to have sexual intercourse cannot be decided as adultery and when it comes to adultery the circumstantial evidence needs to be sufficed. Calcutta High Court in a case held that adultery is a serious matter even if does not have the burden of preponderance, and it needs to be proved beyond any kind of reasonable doubt.[6]

EXTRA-MARITAL AFFAIR

Adultery being a voluntary act of having sexual intercourse, it can be termed as an Extra-marital affair. Apart from ruining the marriage and damaging one’s social reputation, Adultery will impact the affected party both physically and mentally. It also affects the mental health of the party who commits the act.  The fear of getting caught, constant fear mixed with complicated emotions makes a person feel extremely exhausted. The burden of proving the affair lies on the petitioner and the petitioner can file a defamation case against the one having an extramarital affair committing adultery.

When a man remarries for the second time when the marriage still exists by continuing his relations with the first wife then he is living in adultery within the meaning of Section 13(1)(i) and here even the second wife can obtain a decree of divorce. A man who does not confine to one mistress but goes to different brothels is also referred to be living in adultery. Therefore, an Extra-marital affair is one of the issues that are considered to be morally, socially and legally wrong.

It can be proved by

  • The birth of an illegitimate child
  • Eyewitnesses and through Photographs, Videos etc
  • DNA test report of the father and the illegitimate child
  • Any kind of sexually transmitted disease.

In a case of an extramarital affair, direct evidence is hard to obtain and hence circumstantial evidence is itself a sufficient one.

INGREDIENTS OF ADULTERY

  • The act of sexual intercourse should be outside the wedlock
  • Such intercourse should be voluntary
  • Sexual intercourse should not amount to rape
  • The petitioner should have the reason to believe that the respondent has committed the act

The first two ingredients are considered to be very important elements. This act should have taken place with a person outside the lawful marriage. The main ingredient for adultery is sexual intercourse and that should have taken place with the free will of the parties involved. A voluntary activity without any force or coercion should take place. Even when the intercourse takes place with any element of fraud, it cannot constitute Adultery. It also becomes essential on the part of the petitioner to prove the marriage with the respondent and that the respondent has done some illegal activity with a person other than him/her. Also, only the mere statement of the petitioner is not enough it must be corroborated with some other evidence.[7]

In an English case, a question was raised regarding whether Artificial Insemination Donor (AID) being used by the wife without taking the consent of the husband can be ruled as adultery and it was ruled in favour of the wife stating that AID cannot amount to adultery on the part of the wife.[8]Also being a victim of rape, or having pre-marital sex cannot be referred to as an adulterous act.

ADULTERY WITHIN THE SCOPE OF MATRIMONIAL LAW

It is one of the serious matrimonial offences affecting the principles of fidelity and loyalty within marriages. It is considered as a breach of trust and faith committed by one party by breaking the terms of a marriage. Only a man was made guilty under the criminal law before decriminalization but under matrimonial law, both husband and wife can be made guilty after committing the offence. Hence Adultery in matrimonial law is different from criminal law. Adultery has been recognized in marital laws as one of the important grounds for divorce since the marital vows are breached by committing the act of Infidelity.  By making this act a ground for divorce, it gives an appropriate civil remedy having wider scope in matrimonial cases. Therefore, the National Commission for women also recommends that civil remedies must be assured to parties committing the act of adultery. Also, the divorce cannot be granted under the ground of Adultery when the couples had lived together even after knowing about the infidelity. 

In few circumstances, the alleged adulterer can be added as a co-respondent by the petitioner. The petition can be filed to claim damages against the co-respondent if he is alive[9]. This provision is available under Section 34 of the Indian Divorce Act[10]

DISMISSION OF PETITION

By taking into consideration all the above-mentioned facts, it is the final burden of the court to prove the matrimonial offence. The court shall not be entitled to pronounce the order in such cases where there is an unreasonable delay on the part of the petitioner to file the petition or when the petitioner himself/herself has committed adultery during marriage. Divorce under this ground cannot be granted if the petitioner has willfully withdrawn from the marriage before the adulterous act was committed by the respondent.

The court cannot enforce orders when the evidence for adultery has not been proven and in cases where the petitioner during the marriage was aware that the defendant was already living an adulterous life. Adultery of any of the parties may be condoned by the other i.e the petitioner can condone the complaint against the respondent who was accused of the act of committing adultery. In all the above circumstances, the court cannot grant a divorce and adultery cannot be made as a ground for divorce resulting in the dismissal of the petition.

Looking into the reality, our future life has to face way more challenges with urbanization and the development of technologies. Although our Indian constitution has amended a lot of provisions in law providing equal rights to women, with changing circumstances and conditions in everyday life, it is also necessary to look after few necessary lacunae and loopholes in the Hindu marriage act by inserting suitable amendments to relevant sections.


[1] Subbarama Reddiar vs Saraswathi Ammal(1966) 2 MLJ 263

[2] Joseph Shine v. Union of India (2018)

[3] https://indiankanoon.org/doc/1833006/

[4] https://indiankanoon.org/doc/1439306/

[5] Rajathi v Gamesan, 1999SC 2374

[6] Sari v Kalyan, AIR 1980 Cal 374

[7] Sulekha v Kamlakant, AIR 1980 Cal 370.

[8] Maclennan v. Maclennan, 1958 S.C. 105; 1958 S.L.T. 12

[9] Parimilla Rajalingam vs Akuthota Lingayya And Anr AIR 1964 AP 308

[10] https://indiankanoon.org/doc/100956743/

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