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. The court took the decision in favour of the petitioner, i.e. the husband on the merit of the provided evidence and thus granted the judicial separation.
Muslim Laws On Adultery As A Ground For Divorce
Adultery, according to the Quran, is a severely punishable offence and is prescribed to be dealt with by way of stoning to death. But this is not the case in most democracies where the constitutions call for humane treatment of its citizens. The husband has every right to divorce his wife if he is capable of proving that his wife had an adulterous relationship. But the wife may only in circumstances of false accusations can either ask her husband to retract the accusations or divorce him under lian. However, if the husband retracts the claims and apologizes for the same in a prescribed manner, the wife’s claims subsists. In the case of Tufail Ahmad v. Jamila Khatun, the Allahabad Court has further explained that only such wives who are not guilty of adultery may use this as a ground for divorce.
The Dissolution of Muslim Marriages Act, 1939 provides little reprise as it states in Section 2(viii)(b) that where a man leads an infamous life or associates himself with women of evil repute, she can sue him on grounds of cruelty. This is as close as the prevalent Muslim law goes to the concept of adultery.
In the case of Zaffar Hussain v. Ummat-ur-Rahman, the wife of the plaintiff alleged that her husband had stated before several persons that she had illicit intercourse with her brother. The court held that if a Muslim woman is falsely accused of adultery and she can claim divorce on that ground. But at the same time the wife cannot file a divorce under Islam if the allegation of adultery is true and suit can be filed in case of an irregular marriage.
Christian Laws On Adultery As A Ground For Divorce
The law regarding divorce and judicial separation among Christians in India is contained in the Indian Divorce Act, 1869 and the Indian Christian Marriages Act, 1872. Section 22 of the Indian Divorce Act bars divorce mensa et toro, however, it makes provisions for a decree of judicial separation on the grounds of adultery.
The procedure for divorce in India under the Indian Christian Marriage Act is dual in nature. Firstly, the couple has to obtain an annulment from the Church and then they may approach court for a decree of divorce. However, under the Act the wife had to prove the presence of other grounds along with adultery such as such as, cruelty, change in religion, insanity, etc., whereas the husband only had to prove that his wife had indulged in an adulterous Act. Section 11 of the Act, however, provides that the adulterer has to be pleaded as co-respondent.
The Bombay High Court in the case of Pragati Varghese vs. Cyril George Varghese, commented upon this and stating that this puts unnecessary pressure on the wife and is blatantly unfair, and allowed adultery as an independent ground. In the case of Ammini E.J. v. Union of India, the Kerala High Court held that a Christian woman having to prove the offence of cruelty or desertion coupled with adultery is violative of Section 21 of the Constitution of India.
The provisions for Judicial separation under the Indian Divorce Act allows Christian women to file judicial separation on the grounds of adultery. Section 22 of the Indian Divorce Act bars a decree of divorce, but states that a judicial separation may be obtained by both the husband and the wife on the grounds of adultery.
Procedure
There are dual procedures when it comes to granting a divorce in India under the Indian Christian Marriage Act, 1872.
Under the first one, the Christian couple has to obtain an annulment from the concerned Church where the marriage was performed, and then they may apply the courts for a divorce. It is noteworthy that under the act, the wife had to prove a few other grounds as well, along with adultery, such as cruelty, insanity, change in religion, etc. Whereas in the case of the husband, proving just the act of adultery of his wife is enough ground for divorce. However, Section 11 of the Christian Marriage Act, 1872 states that the adultery has to be pleaded and be present as a co-respondent.
- The Bombay High Court in 1997, in Pragati Varghese vs Cyril Georg, commented that proving other grounds along with adultery puts unreasonable pressure on the wife and is unfair towards her. The court allowed the act of adultery as an independent ground for seeking a divorce.
- The Kerala High Court in the case of Ammini E.J. vs Union of India ruled that it is violative to Article 21 of the Constitution of India for a Christian woman to prove other offences like cruelty or desertion along with adultery.
Under the second way, a Christian woman is allowed to file a petition for judicial separation on the grounds of adultery. Section 22 of the act, is not applicable for the decree of divorce buy allows both the husband and the wife, a judicial separation on the grounds of adultery.
Special Marriage Act
The Special Marriage Act, 1954 recognizes adultery and states that if the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his/her spouse, it is a valid ground for divorce.
The Act has recognized adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation. The present position on the concept of burden of proof has also been relaxed under the Special Marriages Act, 1954.
In the case of Sari v. Kalyan, it was stated that adultery may be proven by a preponderance of evidence and need not be proved beyond reasonable doubt as prima facie evidence as to the act of adultery may not be present and circumstantial evidence will have to suffice.
FAQs
Is adultery a ground for divorce in India?
Yes, adultery is a valid ground for divorce in India under various personal laws, including the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Indian Divorce Act, 1869.
What constitutes adultery in the context of Indian divorce laws?
Adultery involves voluntary sexual intercourse between a married person and someone other than their spouse. For a divorce on the ground of adultery, it must be proven that the act occurred.