Adultery and Divorce in India

Get understandable law guides to make complex topics like “Adultery and Divorce” and “Proof of Adultery in Divorce in India” in easy language at LawRato.

Get understandable law guides to make complex topics like “ Adultery and Divorce” and “ Proof of Adultery in Divorce in India” in easy language at LawRato.

Introduction

Adultery in India is a contentious issue that has long been debated and discussed in legal circles. In a country where marriage is considered sacred and divorce is frowned upon, adultery is viewed as a serious breach of trust that can lead to the breakdown of a marriage. In this article, we will delve into the legal framework around adultery in India, its impact on divorce, how it is dealt with under various Personal Laws, examine instances where courts have ruled on cases of adultery, and outline the steps that one can take to legally address adultery committed by their spouse. If you have common questions like “ Is it possible for spouses to remarry after Divorce?” and “ When can an individual file for divorce?” Visit LawRato's page on FAQs: How to File Divorce Types, Cost and Procedure Involved | Divorce Law Guide (lawrato.com) and know it all.

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Adultery And Divorce in India

Marriage is an exclusive relationship that requires trust and commitment. Except under Muslim law where limited polygamy is permitted for men, it is perceived as a one-man, one-woman relationship. Sex outside wedlock in all personal laws is perceived as a grave matrimonial offence that breaches the trust and faithfulness towards each other. Thus, all laws provide voluntary sex outside marriage as a ground for dissolution of marriage by way of divorce or hiatus in marriage by way of judicial separation.

The term used under Hindu Marriage Act, 1955 and Special Marriage Act, 1954, is not adultery but, that the respondent has had & lsquo voluntary sexual intercourse with a person other than the spouse.'

For an act to amount to adultery it must essentially comprise the following ingredients:

1. There should be an act of sexual intercourse outside the marriage, and

2. That such intercourse should be voluntary.

Is Adultery a Crime and Ground for Divorce in India?

The legal status of adultery in India has undergone significant changes in recent years. Until September 2018, adultery was considered a criminal offence under Section 497 of the Indian Penal Code, 1860 which stated that a man could be punished with imprisonment for up to five years for having sexual intercourse with a married woman without her husband's consent or connivance. However, in a landmark five-judge bench judgment, Joseph Shine v. Union of India (2018), the Supreme Court of India struck down Section 497 as unconstitutional, stating that it violated the fundamental rights of equality and privacy. The court held that adultery is a private matter between consenting adults and should not be treated as a criminal offence. However, despite its decriminalisation, an act of adultery is still recognised as a ground for divorce under various Religious Personal Laws.

Adultery under Hindu Law

Under Section 13(1)(i) of the Hindu Marriage Act, 1955 , (HMA) adultery is considered a ground for divorce. Adultery is defined as voluntary sexual intercourse by a person who is married to someone who is not their spouse. If a spouse commits adultery, the aggrieved spouse can file for divorce on this basis. The HMA treats even a single act of sexual intercourse outside wedlock as a ground for divorce and it is not necessary to prove a continuous conduct of adulterous nature. Secondly, it is the act of sexual intercourse and not mere intimacy, familiarity or flirtatious conduct which is sufficient. It is the actual physical act of sexual intercourse that gives rise to a cause of action. The term voluntary also indicates that the act of sexual intercourse must be with the free consent of the guilty party. Therefore, if a woman is a victim of rape, her husband cannot proceed for divorce against her on this ground. Unlike the offence of adultery (as was originally conceptualised in the IPC before its decriminalisation in 2018) where only a husband could initiate criminal proceedings against the adulterer, the act of adultery, as a ground for divorce (as is conceptualised under the Hindu Marriage Act, 1955) is available to both the husband and the wife in a marriage. If the court is satisfied that adultery has taken place, it may grant a decree of divorce. The court will also take into consideration any other factors that may have contributed to the breakdown of the marriage, such as cruelty, desertion, or mental illness. If the court finds that the aggrieved spouse has also committed adultery, the court may deny the divorce. Additionally, if the aggrieved has in any manner been accessory to or connived at or condoned the act of adultery, or has presented the petition in collusion with the respondent, the Court shall not decree the relief of divorce. Speaking of condonation, it is worthwhile to note that where a matrimonial misconduct of adultery is condoned by the aggrieved spouse the same cannot be made by him/ her the basis of a petition for divorce at a later point in time. Mere forgiveness of the matrimonial offence of adultery is not sufficient to conclude condonation. Condonation implies a complete reconciliation in the sense of reinstating the offender to conjugal cohabitation. But it cannot be implied, if the relations, after the commission of adultery by the wife, become bitter and strained and the husband pursues divorce proceedings. There is no absolute rule that can be commonly used for all adultery-related cases. The court would treat each case on its own facts and pieces of evidence. These might include children, society, familial considerations and also the economic status of the parties. Adultery is a ground for judicial separation or divorce only when it is committed post-marriage. Where a party was sexually active prior to the marriage leading to either pre-marital pregnancy or the man fathering a child, it may be a ground for annulment of marriage but not ground for either judicial separation or divorce. It is important to note that under Hindu law, the maintenance order for a wife or a husband in judicial separation from each other, who has committed adultery while in such separation, may be rescinded or modified upon an application of the other party. However, the court may still order the adulterous spouse to provide financial support to their children.

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Adultery under Muslim Law

In Islam, adultery or sexual relation out of wedlock is a major sin or Zina. Adultery is a serious immorality against the spouse. Traditionally, a person was stoned to death for committing adultery.

Under Muslim law, the husband has unlimited and unilateral powers to pronounce talaq on his wife and he does not need the assistance of an enactment nor the stipulation of the grounds for seeking divorce. Therefore, a Muslim husband has the discretion to divorce his wife if she commits adultery. Strangely, for a Muslim wife under the Dissolution of Muslim Marriage Act, 1939, adultery committed by the husband is not a ground for seeking divorce, and it is doubtful whether his indulgence in casual sex outside marriage would give rise to a cause of action justifying the petition of the wife in claiming divorce.

The Dissolution of Muslim Marriage Act, 1939, provides certain grounds on which a woman married under Muslim law would be entitled to obtain a decree for the dissolution of her marriage. The provisions laid down in the above Act which directly or indirectly relate to the matrimonial offence of adultery are -

1. Section 2 (viii)(b) states that a woman shall be entitled to obtain a divorce from her husband on the ground that he treats her with cruelty by associating with women of evil repute or leads an infamous life. These are indications nevertheless of a continuous course of sexual indiscretions, more so with women of ill repute being treated seriously as amounting to a matrimonial offence of cruelty. Thus, the remedy available to a Muslim wife is under the term & lsquo cruelty' and not & lsquo adultery' simpliciter.

2. Section 2 (ix) states that a woman shall be entitled to obtain a divorce from her husband on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law. This ground is a residuary clause that empowers a woman to proceed to dissolve her marriage on any ground that is recognised under classical Muslim law. Lian is one such instance that would enable the woman to proceed under this section.

   Lian means a false accusation of adultery. It is a very serious charge in relation to matrimony. If the husband accuses the wife of committing adultery and the charge is false, the wife has a reason to seek divorce. She can do so by filing a suit in court for the dissolution of her marriage. The husband would be called upon to prove that the charge is true. If he is unable to do so, the court would pronounce a decree of divorce. Under Muslim personal law, the husband can retract the charges as well but not before the evidence in a court is complete. The essentials of dissolution of marriage on grounds of Lian are:

• the husband accuses the wife of committing adultery

• the charge is false

• the husband does not retract the charges despite being given the opportunity

• the wife files a suit in the court for dissolution of marriage.

?Since the offence of adultery may be committed in private and it may be difficult to prove it by direct evidence, the parties are to make their respective statements and assertions on oath and can lead secondary evidence to prove or disprove the charges.

Adultery under Christian Law

In Christianity, adultery is considered a sin and a breach of marital vows. In the Catholic Church, adultery is considered a mortal sin, and a person who commits adultery is not allowed to receive communion unless they confess their sin and receive absolution. Indian Christians are governed by the Divorce Act, 1869 in matters of marriage and divorce. As per Section 10 of the Act adultery is considered a ground for divorce, and a spouse upon a petition presented to the District Court can seek a divorce if their partner has committed adultery. As per Section 14 of the Act, the court is empowered to issue, upon such petition, a decree dissolving the petitioner's marriage with the respondent on the ground of the respondent's adultery. It must be proved by the petitioner to the satisfaction of the court that he/ she had no role to play in the respondent's act of adultery by way of aiding, conniving or colluding with the respondent or his/ her paramour so as to obtain a divorce decree. However, the court may not grant such decree if the petitioner has committed adultery during the marriage or has unreasonably delayed in the presentation of a petition for divorce or treated the other party with cruelty, deserted them without a valid excuse, or otherwise contributed to the adultery by neglect or misconduct. The adultery will not be considered condoned unless the couple has resumed or continued conjugal cohabitation. Section 11 of the Divorce Act, 1869 requires that whenever a spouse prays to the court for a decree of divorce on the grounds of adultery committed by another spouse, the naming of the person with whom adultery is committed and making him/ her a co-respondent is mandatory, failing which the case would be dismissed, unless the case is covered under the exception, i.e., if the wife was leading the life of a prostitute and the petitioner knows no person with whom adultery is committed, or that the name of the alleged adulterer is unknown to the petitioner although he has made the efforts to discover it or if the alleged adulterer is dead. Unless the identity of the adulterer is not known, his/her impleadment is necessary, as the matrimonial offense of adultery needs to be proved properly. If the identity is known and his name emerges in records, his impleadment would also enable him to clear his name. The standard of proof of adultery in divorce India in such cases is not as strong as in a criminal case and proof beyond a reasonable doubt is not required in a petition for divorce, though adverse inference could very well be drawn against the party. If a decree of divorce is granted on the wife's adultery, upon her failure to refute the allegations of adultery, even an appeal by her would be dismissed.

Adultery under the Special Marriage Act, 1954

The Special Marriage Act, 1954, is a secular law that governs marriages of people from different religions, castes, and regions.

Under this Act, adultery is considered a ground for divorce. The Act defines adultery as voluntary sexual intercourse of a married person with a person other than their spouse.

Under Section 27 of the Act, a spouse can upon presenting a petition to the district court file for divorce if their partner has committed adultery. However, as per Section 29 of the Act, such a petition can only be presented to the district court after the completion of one year since the date of entering the certificate of marriage in the Marriage Certificate Book.

In order to prove adultery as a ground for divorce, the petitioner must provide substantial evidence to the court. Merely accusing the spouse of adultery without any evidence is insufficient to obtain a decree of divorce. The evidence presented must establish that the respondent willingly had sexual relations with another person, and the petitioner did not condone the act or connive with the adulterous party.

Evidence for proving Adultery

Adultery as a matrimonial offence is extremely difficult to prove by direct evidence due to its very clandestine nature and hence circumstantial evidence is accepted to establish it. It should be more than a mere allegation of intimacy, or even unwillingness to cohabit with husband, and should indicate a high probability of its commission. A mere suspicion of the husband is not enough to prove adultery especially if he had not seen the wife in the company of any male member nor could he name anyone. Evidence that can be presented in court to prove adultery includes:

• Circumstantial evidence such as photographs, messages, hotel receipts, or eyewitness accounts.

• Evidence indicating that the husband was not able to have access to the wife during the time when the child was likely conceived, followed by the birth of a child.

• Evidence of visits to houses of prostitution.

• Contracting a sexually transmitted disease.

• Admissions made during previous legal proceedings.

If the husband denies the paternity of the child, citing the wife's adultery, he can prove either non-access to her at the time of the child's possible conception or can even seek a DNA test to be performed on the child, whose paternity he denies. In such cases, the refusal of the wife to undergo the test herself or to have it performed on the child may go against her as the court may draw an adverse inference, but if to counter the allegations of the husband she offers to undergo a DNA test, allegations of adultery would be baseless. The courts are very cautious in ordering for a DNA test if, it may adversely affect the child but may do so if the man is successful in proving a prima facie case. In vague allegations of denial of paternity, no DNA tests would be ordered, but in case the interest of the child and the mother to prevent them from stigma, if a man denies paternity, it can be ordered. In order to prove adultery, it is crucial to bring on board circumstances that suggest the possibility of adultery, such as a clear association between the parties. However, the burden of proof is upon the party alleging the adulterous act to provide evidence to the court to prove the matrimonial offence and seek termination of the marriage. In Dastane v. Dastane, the Supreme Court held that proof beyond a reasonable doubt is not always necessary, especially in personal relationships such as those between spouses.

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Instances of Adultery - Plea of Adultery has been rejected by Courts

Divorce petitions on the ground of adultery are indeed taken on a case-to-case basis and decided on the merits of a particular case.

Despite adultery being a ground for divorce, courts in India have rejected pleas of adultery in several cases.

Under Hindu law, in Rajesh Kumar Singh v. Rekha Singh, a man filed a petition praying for a decree of divorce, as against his wife on the ground that the wife was a victim of gang rape. In Indian society he contended, it was not possible for him to move with dignity with a gang rape victim, entitling him to divorce. The husband was in the defence services, posted at a non-family station, and the wife used to frequent both the parental as well as the matrimonial home. She was found unconscious near the railway track after a gang rape. The court expressed its deep shock at the submission of the husband and dismissed his divorce petition.

Under Muslim law, in Khatijabibi Umarsaheb v. Umarsaheb Ansersaheb, the wife filed a suit in the court against her husband praying for a decree of divorce on the ground of his false accusation of committing adultery and also claimed her unpaid Mahr amount. The husband was able to prove his charges as true before the court, and the suit for divorce was dismissed. In an appeal to the Bombay High Court, the parties were asked to be deposed under special oath. The court observed, that an innocent wife who proves that her husband falsely charged her with adultery is alone entitled to a divorce, and not, as in the present case, the wife who is proved to be guilty.

Instances of Adultery - Plea of Adultery has been upheld by Courts

Divorce petitions on the ground of adultery are indeed taken on a case-to-case basis and decided on the merits of a particular case.

There have also been cases where courts have upheld pleas of adultery as grounds for divorce.

Under Hindu law, in the case of Neelam Tiwari v. Sunil Tiwari, the wife accompanied by a person other than her husband, stayed in a Hotel with him with an opportunity to commit sexual intercourse in the natural course of things. Then, she went missing from her matrimonial home and was recovered from the house of the alleged adulterer. It was held that her conduct can lead to a presumption of commission of sexual intercourse with him and divorce would be granted.

Similarly, in Maya Devi v. Pargat Singh, the parties post-marriage lived together and were blessed with three children. The husband was a labourer and worked in Dubai. During his absence, his cousin chanced upon an incident in which he saw the wife and a co-villager in a compromising position and informed the husband about it. The wife denied all the allegations completely when confronted by him and threatened to implicate him in false dowry cases. However, harbouring genuine doubts and determined to know the truth, the husband secretly, installed a closed-circuit CCTV camera in the bedroom. In three clippings, he saw his wife and the co-villager in illicit compromising positions. With the help of the clippings of the video, that were duly proved in the court, both the trial court and the high court held that adultery committed by the wife was established and he was granted divorce.

Under Muslim law, in Rahima Bibi v. Fazil the wife presented a suit for divorce against her husband on the ground that he had falsely accused her of committing adultery. After three months of marriage, he accused her of committing adultery first with an unnamed person and then with a known relative and further accused her of becoming pregnant due to such an illicit connection. He then called her relatives, charged her with adultery in their presence and asked them to take her away as he did not want to do anything with her. The wife was taken back to her natal place, and suffered deep trauma and humiliation in the society because of these false accusations. Before the court the husband stated on oath the charges, but was unable to substantiate them consequently, her petition was admitted and she was granted a divorce.

Similarly, in Zafar Husain v. Ummat-ur-Rahman, a Muslim wife filed a suit in court praying for dissolution of her marriage, on the ground that the husband had accused her falsely of adultery. The charge she said was very painful as he had accused her of committing adultery with her own brother. On the appreciation of evidence, it held that the charge was false and dissolved the marriage.

Steps to follow to take Legal Action against the Spouse if they commit Adultery

If a spouse commits adultery, the other spouse can take legal action against them. Here are the steps that can be followed to do so:

1. Gather Evidence: To prove adultery in court, the aggrieved spouse must provide evidence of the affair. This can be determined by the birth of a child more than 12 months after the cessation of marital relations or admission of adultery by the offending spouse. One can consider hiring a private investigator to gather evidence that can be presented in court. Please take note of the evidences discussed in the preceding segment of this article.

2. Hire a Lawyer: It is advisable to hire a lawyer who has experience in handling adultery cases in order to understand the legalities of the case and the admissibility of evidence in court.

3. ??File for Divorce: Adultery is considered a ground for divorce under most laws, and the aggrieved spouse can file for divorce on this basis. If both parties mutually agree to divorce, they should file for divorce before the District Court and provide reasons why they can't live together. The court will inspect the documents and then grant a date for hearing the parties. After the hearing, the court may pass a decree of divorce. If the divorce is contested, the spouse should file a petition before the family court and both parties will have to face court proceedings. In some cases, the court may require the parties to attend mediation to try and resolve the matter amicably. If the parties are unable to reach an agreement, the case will proceed to trial. Weighing in the facts and pieces of evidence tendered by both parties, the Court may grant a divorce in the case.

?It is important to note that under Hindu law, a divorced wife is entitled to maintenance from her former husband only if she is unable to maintain herself. Adultery committed by the wife does not automatically disqualify her from receiving maintenance, but it may be considered a factor in determining the amount of maintenance.

Additionally, Section 125(4) of the Code of Criminal Procedure, 1973 provides that a wife who is living in adultery, or who refuses to live with her husband without sufficient reason, is not entitled to receive maintenance.

Why do you need a Lawyer for a Divorce Process in India?

Divorce is a stressful time for everyone involved. Getting a Contested Divorce especially can feel like a battle, thus hiring a Divorce lawyer is recommended. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A Divorce Lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he/she can avoid delay and get the divorce completed as quickly as possible.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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