To prove infidelity what all admissible evidence to gather?
My husband is having an affair and I am sure about it. To prove infidelity in the court as a ground for divorce, what all are the evidences / proofs that I can get that are admissible in the court?
When it comes to adultery, the charge of adultery requires strict proof. While the courts acknowledge that adultery by its very nature is generally a secret act where direct evidence is almost impossible.
Madras High Court has observed that "It is unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. So, circumstantial evidence is all that can be normally forthcoming regarding adultery. The circumstantial evidence thus produced must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery."
The Orissa High Court endorses this view of the Madras High Court by stating "To prove factum of adultery direct evidence is not necessary, it can be proved by oral documentary of circumstantial evidence from which the Court can draw inference beyond reasonable doubt that the opposite party had adulterous relationship with the third person."
The charge of adultery, in absence of any direct evidence, can be generally proved by producing presumptive evidence like:
(a) circumstantial evidence;
(b) evidence of non-access and birth of children;
(c) contracting venereal diseases and
(d) confessions and admissions
For taking divorce on the ground of adultery under Section 13(1)(i), what is required to be proved by the petitioner is voluntary sexual intercourse with someone else than her spouse by the respondent.
A strong presumption of sexual intercourse would be established if there exist evidence of both spending time together alone in a room locked from inside, person witness to both spending time together in isolation, what actually happens between both may not be recorded or witnessed but court will presume it as sexual intercourse happening in isolation corroborating with other acts.
Child born out of this particular sexual intercourse, any medical complication resulted out of the act to the respondent that can be identified of the sexual intercourse outside her marriage, video and audio recording of the event of sexual intercourse between the parties are few more instances where the court will allow divorce.
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