Adultery and Divorce in India: Legal Implications

What is Adultery? 

Adultery is having sexual intercourse or maintaining intimate relations with someone other than the spouse. 

The act of adultery was an offence in the eyes of the Indian Penal Code before 27th September 2018. In the matter of Joseph Shine v. Union of India ((Joseph Shine v. Union of India, (2019) 3 SCC 39, AIR 2018 SC 4898)), the apex court decriminalized the offence of Adultery mentioned under Section 497 of the Indian Penal Code. As the provision exempted women from its ambit. And sexual intercourse between a married man and an unmarried woman was not covered by the provision. The 5 judges’ bench unanimously struck down the provision.  

Nevertheless, the act of adultery breaks the trust of a spouse which incurs mental agony. The law gives importance to the fact that no matter if the spouse is providing all the amenities to the other spouse this conduct cannot sustain a marital bond. The lawmaker considers it an aggravated form of cruelty which cannot be forgiven through any apology. Hence, it is mentioned as a remedy to dissolve the marriage.  

How to Prove the Commission of Adultery? 

1. The other spouse can prove the commission of adultery by proving the circumstantial evidence, for example, the other spouse and his adultery partner are living or lived in close contact.
2. The husband can prove his non-access to the wife if she is pregnant.
3. If the spouse has developed any venereal disease.
4. The wife can prove the visits of her husband to brothels or contact with prostitution.
5. Witnesses can also be presented to state the circumstantial evidence or corroborate with the circumstantial evidence.
6. DNA test reports of a child can be submitted to the court to enquire about the legitimacy of a child.

Essential Ingredients of Adultery 

• Legitimate Marital Relation
• The marriage must be commenced through personal law or special marriage law.
• Sexual intercourse with someone else other than the spouse.
• The intercourse must be voluntary.

Adultery Under Several Personal Laws 

Hindu Law 

The Hindu Marriage Act, 1955 covers the act of adultery as a ground for judicial separation under Section 10 of the Act whereas it is termed as an important ground for divorce under Section 13(1)(a) of the Act.  

Adultery as a ground for divorce under Hindu law was added in the year 1976 through The Marriage Law (Amendment), Act, 1976.  

Muslim Law 

The Muslim law is based on the belief shown by the Quran. Quran considers the act of Adultery as heinous conduct as is punishable by death. The Constitution of India does not permit such punishment. Muslim law gives a right to the husband to ask for divorce for his wife’s adulterous conduct. Nevertheless, if the wife can prove him wrong, she can ask for a divorce from the husband. The latter situation annuls if the husband withdraws his case and submits an apology before the wife in the manner prescribed by law.  

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”. 

Christian Law 

Section 22 of the Indian Divorce Act, 1869 does not particularly deals with adultery as a ground for divorce but as a ground for judicial separation.  

For Christians in India, in the matter of Pragati Varghese v. Cyril Georg, the Bombay High Court opined adultery is unfair towards the wife as proving other grounds along with adultery puts unreasonable pressure on her. The court permitted the act of adultery as independent grounds for seeking a divorce.  

In the matter of Ammini E.J. v. Union of India ((Ammini E. J. v. Union of India, AIR 1995 Ker 252)) the Kerala High Court stated 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”. 

Special Marriage Act, 1954 

The act of having sexual intercourse with someone other than his/her partner is a ground for getting a decree of divorce under Section 27 of the Special Marriage Act, 1954.  

While stating the duty of the court to pass a decree, Section 34(b) of the act states that “[where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein], or, where the ground of the petition is cruelty”. 

However, if the adultery of the petitioner gets proven, the respondent will be entitled to file a counterclaim under section 35, and he/she will be entitled to get relief as if he/she had presented the petition seeking that relief.  

Conclusion 

The act of adultery is an essential ground for divorce in various personal laws. The concept is based on the principle of maintaining an equitable relationship with the partner. It was conjectured that the act must be proved beyond a reasonable doubt to get the relief. However, at the time the Supreme Court opined that there is no need to prove it beyond reasonable doubt as the trust has already been tilted. Also, proving something beyond a reasonable doubt is a concept of criminal law and not civil law.