Adultery as defined under Section 497 of the Indian Penal Code, 1860, is whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another 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.” Personal laws all over the world censure the act of adultery, and it is contemplated as a ground for divorce or separation. Moreover, the Hindu law that has no concept of separating or divorcing once married also condemns the act of adultery unambiguously. In the current scenario, adultery is a ground for divorce or separation. An act of sexual intercourse outside marriage The intercourse should be voluntary Adultery is a crucial matter, and it has always been a matter of disparity in the related judgments of the courts. The primary reason is to decide which circumstantial evidence can be considered as proof of adultery. For example, Odisha High Court in the case of Banchanidde vs Kamladas said that only irresistible conclusion could be adultery, as circumstances should be so compelling. However, in the case of Subbarma vs Saraswathi, Madras High Court said that if an unrelated person is found with the wife after midnight, it may be considered as an adulterous act. In another case Maclenna vs Maclenna, Outer House, Court of Session, Scotland, the court faces a dilemma when the question raised that whether a wife using Artificial Insemination Donor (AID) without her husband’s consent can be considered as adultery or not. However, the court stated that AID could not be considered as adultery and rule in favour of the wife. Nevertheless, it is noteworthy that the burden of proof that whether the act of adultery took place or not lies on the petitioner only. Hindu Laws On Adultery As A Ground For Divorce Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove that she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her. The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The Indian Courts time and again had stressed that adultery has to be proven beyond reasonable doubt. However, in the recent years, the Supreme Court is seen to be deviating away from such notions stating that proving beyond reasonable doubt is essential in criminal cases and not in civil cases. In the case of Dastane v. Dastane, the apex court held that there certainly is no necessity of the presence of proof beyond reasonable doubt where personal relationships are involved especially those between a husband and wife. In the case of Ammini E.J. v. Union of India, the Kerala High Court held that the husband is in a favorable position with respect to it being a ground for divorce because the wife has to prove adultery along with some other aggravating circumstances and hence it is discriminatory towards the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery, without any other qualifying offence such as cruelty or desertion. Before the enactment of the Marriage Laws, 1976, adultery was treated as a conduct of grave immorality. It was a thing of grave shame irrespective of the gender, however it wasn’t a ground for divorce. After the 1976 Amendment, the grounds for judicial separation and divorce are the same and it is a mark of great development in the Hindu Personal Laws. Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage being solemnized after or before the commencement of this act. In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, both Section 10 and Section 13 of the Hindu Marriage Act. According to the husband, she used to visit the house of the co-respondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in the favor of the petitioner on merit of the evidence provided, and judicial separation was granted. The above cases are mainly testament to the fact that cases such as these are indeed taken on a case to case basis, and decided on the merits of that particular case. The Marriage Laws (Amendment) Act, 1976 The Marriage Laws (Amendment) Act, 1976 passed and made the ground for divorce and judicial separation common. Under the amendment, any aggrieved party can file a petition for divorce or judicial separation by choice. Prior to this, enactment was considered as the conduct of immorality. Though adultery was a matter of grave shame, still it was not a ground for divorce. This amendment made the grounds for divorce and judicial separation same, and it was marked as a significant development in the category of Hindu Personal law. Adultery Under Hindu Marriage Act, 1955 Section 10 of the Hindu Marriage Act, 1955, says adultery is defined as a ground for judicial separation. The section states that the parties can file a decree for judicial separation or divorce because they are mentioned under Section 13(1) of the act. However, it is irrespective of the fact that before or after the commencement of adultery marriage being solemnized. In the case of Sulekha Bairagi vs Prof. Kamala Kanta Bairagi, Calcutta High Court, the matter was that according to the husband, his wife used to visit the co-respondent and was caught in a compromising position. The wife was also accused of neglecting her marital duties.