To prove infidelity what all admissible evidence to gather?

316 votes

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.

LawRato LawRato

729 votes

Adultery is recognized as a ground for divorce under the Hindu Marriage Act, 1955, and other personal laws applicable to different religions. To prove adultery in court, it typically requires presenting sufficient evidence. Following are some examples of proof of adultery for divorce in India:

Direct evidence: Direct evidence refers to proof that directly demonstrates the occurrence of adultery. This can include photographs, videos, or eyewitness testimony that provide clear and undeniable proof of the spouse's extramarital relationship.

Circumstantial evidence: Circumstantial evidence is evidence that indirectly suggests the occurrence of adultery based on surrounding circumstances. It can include things like hotel receipts, text messages, emails, or other forms of communication that imply an intimate relationship between the spouse and the alleged third party.

Private detective reports: Hiring a private investigator to gather evidence of adultery is a common approach. Their reports, photographs, and surveillance footage can potentially be used as evidence in court, provided they were obtained legally.

Confessions or admissions: If the spouse has admitted to the affair either in writing or verbally, their confession can serve as evidence of adultery.

Advocate Siddhant Sharma LawRato

422 votes

To prove adultery, you need to provide evidence of a physical relationship between the wife and her husband outside the marriage. This evidence can come in the form audio/video recordings and circumstantial evidence like both their signatures on a Hotel Register when they booked a room or spent the night.

Advocate Chikirsha Mohanty LawRato