Adultery: A Ground for Divorce in India

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.

The key ingredients of adultery are:

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

Adultery is defined under Section 13(1) of the Hindu Marriage Act, 1955, is a ground for divorce in India. According to it, adultery is an act of voluntarily indulging into sexual intercourse out of marriage, i.e. any person who is not the spouse of the respondent. Thus, it becomes necessary for the petitioner to prove that he/she is married to the respondent, and the respondent made voluntary sexual intercourse with another person. Any of the spouse filing a divorce petition have to prove the statement with pieces of evidence. With time and significant cases, Indian courts have emphasized that the act of adultery have to be proved beyond a reasonable doubt. However, over the years Honourable Supreme Court's in such cases seems to differ, stating that proving beyond reasonable doubts is a compulsion for criminal cases, not civil cases. In a similar case Dastane vs Dastane, the Supreme Court stated that the presence of proof beyond a reasonable doubt is not a necessity, when such crucial personal relationships are involved, like a husband and his wife. Kerala High Court in the case of Ammini E.J. vs Union of India stated that between the spouses, the husband is in an advantageous condition when it comes to adultery being a ground for divorce because along with the wife proving adultery, will face uncomfortable situations. Therefore, it will be discriminatory towards the wife. In the case, the court also ruled that the wife can also file a divorce petition against her husband on the grounds of only adultery, without any other offence such as desertion or cruelty.

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. The above cases prove the fact that decisions of such cases are bases on the facts and nature. There need not be similarity, as the decision is on a merit basis.

Muslim Laws on Adultery

According to Quran, the act of adultery is a severely punishable offence, and it is to be punished by stoning to death. However, due to humane treatment to the citizens under a democratic constitution, it is not possible. Under Muslim law, a husband has a right to divorce his wife if he has enough evidence to prove the wife's adulterous relationship. However, only in the circumstances of false evidence, a wife can ask to withdraw the accusations or can divorce him. But, in case the husband withdraws the claims and apologizes in the particular manner prescribed by the law, the claim of the wife gets subsists. Allahabad High Court sated in the case of Tufail Ahmad vs Jamila Khatun that this may be used as a ground for divorce to such wives who are not guilty of the act of adultery.

Dissolution of Muslim Marriages Act, 1939

Section 2(viii)(b)of the Dissolution of Muslim Marriage Act,1939, states that if a man leads an ill-famed life or associates himself with any woman of evil repute, his wife can sue the man on charges of cruelty. This concept of Muslim law is close to the concept of adultery. In the Zaffar Hussain v. Ummat-ur-Rahma, 1919at Allahabad High Court, the wife accused her husband of stating before people that she had illicit intercourse with her brother. In its judgment, the court ruled that if a woman is falsely accused of adultery, she can claim divorce for the same. On the other hand, the wife is not liable to claim a divorce if the accusations of adultery are true.

Christian Laws on Adultery

The Indian Divorce and Act, 1869 and Indian Christian Marriages Act, 1872 deals with the divorce and judicial separation laws for Christians in India. The Indian Divorce Act, 1869, Section 22, bars divorce with mensa et toro (legal separation). But, it has made a provision for judicial separation 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.

Adultery under Special Marriage Act, 1954

The act of adultery is recognized by the Special Marriage Act, 1954 as it is a valid ground for divorce if the respondent had have voluntary sexual intercourse with a person who is not his/her spouse, after solemnization of the marriage. Under the act adultery is a separate offence, and it does not need to be presented with any other offence in order to file a petition for divorce or judicial separation. Calcutta High Court in the case of Sari v. Kalyan, 198, mentioned that though adultery does not have the burden of preponderance, it is a serious matter, and it needs to be proved beyond any kind of reasonable doubt. This is because when it comes to adultery, there may not exist prima facia evidence, but the circumstantial evidence needs to be sufficed.

Conclusion

Adultery has always been demoralized in our country. In fact, in India, the discouragement has been grown with time. In our country, till the year 1976 adultery was a ground for divorce only if the spouse was living in adultery, but now, a petition of divorce or judicial separation can be filed even if there is one single instance of voluntary sexual intercourse with a person other than the spouse. In India, the judiciary has taken a serious view on the concept of adultery. It has taken the various social conditions, circumstances of the party applied for divorce and the presence of children in consideration. The cases when filing the petition has been delayed when there are children are taken lightly. However, there is no compulsion to use this rule in all adultery related cases. It is the complete discretion of the concerned court to decide each case in its own merits and demerits. The merits and demerits can be the economic status, children (if any), family condition and society.