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Adultery as a ground for divorce

Adultery

Adultery is defined by Black's Law Dictionary as “voluntary sexual intercourse of a married person with a person other than the offender's husband or wife.” Adultery committed by two persons each of whom is married to another as distinguished from “single” adultery, where one of the participants is unmarried. 

In a recent judgment declared on 27th September, 2018, the Supreme Court of India in the case of Joseph Shine v. Union of India non criminalized adultery. Yet it remains as a ground for divorce. Prior to the present judgment, adultery was a criminal offence under sections 497 of the Indian Penal Code. Via this judgment a progressive step has been taken by the judiciary which has furthered element of gender equality and through this the practice of propertisation of women has been done away with.

Adultery, within the ambit of matrimonial relationships, has always been a ground for divorce. A divorce petition can be filed by either spouse, in a court of law, to obtain a decree of divorce on the grounds of adultery.

HINDU LAW on Adultery

Hindu Marriage Act, 1955 as amended in 1976, provides Adultery as a ground for divorce as well as judicial separation. Section 13 (1)(i) of the said act states-

13 Divorce.

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

 

Thus, according to the statute, adultery is defined as an act of sexual intercourse outside marriage. However, the term sexual intercourse is not defined within the act. In an older case of Subbarama Reddiar v. Saraswathi Ammal (1966) 2 MLJ 263, the Madras High court stated the following:

“..the unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unrelated person is found alone with a young wife after midnight, in her bedroom, in an actual physical juxtaposition unless there is some explanation forthcoming for this which is compatible with an innocent interpretation, the only interpretation that a Court of law can draw must be that the two were committing an act of adultery together.

 

MUSLIM LAW on Adultery

Under Muslim law, the Dissolution of Muslim Marriage Act, 1939, under section 2(vii)(b), if a man associates with women of evil repute or leads an infamous life, it amounts to cruelty to the wife, and he can sue her. This can be equated with adultery. However, according to the present section such cruelty would only amount to mental cruelty and not physical cruelty. In Kalim Uz Zafar Shaikh Hasan v Razia Kalim Shaikh, court widened the ambit of cruelty to include physical cruelty as well.

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 LAW on Adultery

Under Christian Law, Section 10(1)(i) of The Divorce Act of 1869 (as amended in 2001) reads,  “Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.” Thus, for a christian woman to be able to file for divorce on the ground for adultery, the same needs to be coupled with other grounds such as that of desertion or cruelty.

A mere reading the present provision, thus, shows that the same is violative of Articles 14,15 and 21 of the Indian Constitution. This issue was raised in the case of Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors. before the Kerala High Court. The special bench of Kerala held in  this case that the impugned provision of the act were more favourable towards the husband and were discriminatory purely on the basis of sex. It was read via this judgment that the words “Coupled with” are several and liable, it should be struck down as it is ultra vires the constitution.

 

PARSI LAW on Adultery

Section 32(d) of the Parsi Marriage and Divorce Act, 1936 allows any married person to sue for divorce if the spouse has committed adultery, fornication, bigamy, rape or any unnatural offence.

Unlike other personal laws, under Parsi law above mentioned section connotes a  limitation period of two years since the petitioner becomes aware of such an adulterous relationship. In the words of the section, when a married person has sexual intercourse with a person outside the

JEWSIH LAW on Adultery

In the absence of a specific legislation applicable to Jewish relationships, their customary code is applied while deciding such cases. On one hand, the ancient laws do not recognise infidelity by a male as a cognizable offence, treating only women’s infidelity as a crime, on the other hand, modern law treats both as essentially on the same foot.

In the case of Mozzelle robin v Lt. Col. Rj Solomon 1979(81)BOMLR578, the Bombay High Court held the following:

“ the right to matrimonial reliefs including those of restitution of conjugal rights and judicial separation flow very much from the same complaint, namely, the breach by the defendant of the one or the other of the matrimonial obligations to be performed by him. It may also be noted that the Madras case was a case of a Hindu marriage which is a sacrament, while the Madhya Pradesh case was a case of a Mohammedan marriage which is a civil contract. I am, therefore, fortified in the conclusion I have reached that whether a Jewish marriage be a civil contract or a religious sacrament, the right of a spouse in such a marriage to seek relief on the ground of a matrimonial wrong committed by the other spouse arises from the breach of the matrimonial obligations flowing from the fact that a valid marriage between the parties has taken place and marriage would, therefore, be not only a part but a material part of the cause of action in such a suit. I therefore hold that the leave under Clause XII of the Letters Patent was rightly granted and this Court has jurisdiction to entertain this suit.”

The same Court in another ruling had held that a Jew marrying for the second time will constitute of adultery.

SPECIAL MARRIAGE ACT, 1954

Section 27(1) of the Special Marriage Act, 1954,

Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent-

(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;”

 

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.

In the case of MacLennan v. MacLennan a question came before the English court, whether artificial insemination constituted adultery? It was held by Lord Wheatley in this case that adultery requires involvement of two parties, physically present and engaging in sexual acts and that adultery does not require any interaction between the sperm and the ovum.

Adultery as an act is an offence to the marriage and thus it should have taken place during the subsistence of the marriage. Also, the act of intercourse must have been consensual i.e. it should not amount to rape. Other instances when adultery amounts to rape are when the married person is intoxicated, under the influence of any drug, unconscious or if the adulterer is under the belief that he or she is having sexual intercourse with their spouse. Further, mere attempt of sexual intercourse also does not amount to adultery.

 

Proving adultery

1.      Circumstantial evidence where the spouse and adulterer have spent time together in closed confines

2.      Through evidence of non-access to spouse, the wife in this case, who has given birth to a child or who is pregnant

3.      Spouse contracting a venereal disease

4.      Evidence of spouse visiting brothel

5.      Recording of admission and testimonials of witnesses along with circumstantial evidences including compromising emails, messages, letter, etc.

 Section 112 of the Indian Evidence Act states that there is a presumption that every child born during the subsistence of the marriage is  legitimate child. Conversely, in the case of K Suganda v. K Vijaylakshmi, the Telangana High Court, held that section 112 of the Indian Evidence Act does create and impediment in a case concerning adultery, wherein the father wishes to get a DNA test conducted on the child.

The burden of proof in such cases lies on the spouse who alleges adultery.

In the case of Mrs. Anil Singh v. Dr. Narender Singh the law on burden of proof in cases of alleged adultery was dealt by the Delhi High Court in the following manner:

“ For adultery to be proven, cogent and substantive evidence has to be brought on record by the parties alleging so. In the present case, no such evidence was brought on record by the wife...The Trial Court concluded that there was lack of evidence from the wife in proving an allegation of adultery against the husband. Allegations of adultery have a consequence of damaging one’s reputation, taking away the dignity of that person in the eyes of his family, friends and the society. The burden of proving adultery is placed on the individual who makes such an allegation. In the absence of any proof in this regard, the Trial Court rightly concluded that the charge of adultery against the husband was not proven.”

However, there exists a difference of opinion under the English and Indian laws regarding the proof of adultery. Unlike English law, Indian law does not require actual penetration to be proven.

It was held in the case of Neelam Tiwari v. Sumit Tiwari, 2009 MP 225, that proof without reasonable doubt may not available in cases involving human relationships and therefore, circumstantial evidence may be relied upon by the courts.

 

In the case of R v. J, it was held by the Delhi High Court that false allegation of adultery amount to cruelty on the spouse. 

“...writing letters to the authorities making slanderous allegations against the appellant, repeating the same not only in her own statement but also suggesting them to the appellant during the course of his cross-examination lends credence to the fact that the wife was persisting them to humiliate and wounding the feelings of the husband which have made impossible for him to live in the matrimonial home with the wife. These allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial life causing profound and lasting disruption driving the husband to feel deeply hurt and reasonably apprehend that it was impossible for him to live with the respondent....This Court agrees with the learned Trial Court that the respondent has treated the petitioner with cruelty and the petitioner has neither condoned the acts of cruelty nor cohabited with the respondent. The petitioner has not taken advantage of any wrong as alleged by the respondent. This Court is of the view that the petitioner is entitled to a decree of divorce on the ground of cruelty”

Similar view was taken by the Delhi High court earlier in the case of Mrs. Anil Singh v. Dr. Narender Singh  by holding that -

“...wherever adultery is alleged by one spouse against the other and the allegation remains unproven, it constitutes cruelty against the accused spouse, since the allegation was a concerted and deliberate action which had the capacity to tarnish the reputation and lower the dignity of the other spouse. It would also cause immense mental trauma and stress to the accused party.”



One of the most devastating challenges to any marriage is the challenge of adultery, either by a man or a woman. The feeling of anger, distrust, shame and inadequacy makes it an unbearable concoction. Though some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot and may end up in courts.

 


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Disclaimer: These articles are providing only general information regarding Indian Laws and should not be construed as legal advice on any subject matter. Please speak to an Advocate to discuss your specific case.