Adultery as a Ground for Divorce

Sanchit Gupta, a 3rd Year Law Student at Chandigarh University has written this article explaining Adultery as a ground for divorce

Introduction to the Concept of Marriage

Marriage, as defined, is a holy matrimony between a man and a woman. It is based on trust and respect towards your other half of this sacred tie and the last of the sacraments, meaning a lasting commitment of a man and a woman to a lifelong partnership, established for the good of each other and the procreation of their children. Characteristics of the sacramental nature of marriage are:

• Marriage between two people is considered eternal, that is, it lasts several lives a person will live, which according to the Hindu Vedas is a union of seven lives.
• Once tied under this holy union, it cannot be untied as it is considered to be bound together by the god or in the presence of the god.
• Whether it is Hinduism, Christianity, Islam, etc., marriage is called only after performing the respective religious ceremonies.

Until the late 20^th century, marriage was rarely a matter of free choice. In India, parents used to look out for a suitable spouse for their Child. Moreover, fix the matrimony for them without the choice of their children. However, which has been changing its course with time, as of now people find their own suitor, termed their “soul mates”. In societies in which individuals choose their own mates, dating is the most typical way for people to meet and become acquainted with prospective partners. Successful dating may result in courtship, which usually leads to marriage.

Introduction to Adultery

Adultery is a serious matrimonial lapse. Even the most liberal of societies view it as extremely damaging to a harmonious marital relationship, which, as defined under Section 497 of the Indian Penal Code, 1860, is a person having sexual intercourse with a person other than their legal spouse without their knowledge and with the consent of the other person outside marriage, not amounting to the offense of rape, is considered guilty of the offense of adultery. Sometimes when unlawful intercourse between two married persons is called double adultery, making it a ground for divorce or separation.

Furthermore, the Hindu Marriage Act of 1955, which had no concept of separating or divorcing once married, also condemned the act of adultery. While before the marriage laws were passed in 1976, adultery was just considered a matter of shame and no judicial action was being enacted, now, after the amendment of 1976, it is also being treated as grounds for filing for divorce.

Sulekha Bairagi v.Prof. Kamala Kanta Bairagi, 1980

In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, 1980, according to the husband, the wife frequently visited the house of the co-respondent, where she was often found in a compromising situation with him and even used to neglect her duties. Thus, the decision was taken in favor of the petitioner on the basis of the evidence provided, due to which judicial separation was granted.

Subbarma v. Saraswathi, 1966,

In the case of Subbarma v. Saraswathi, 1966, the Madras Court held that where an unrelated person is found with the wife after midnight, the same may be inferred to be an adulterous act.

Some of the exceptions where the decision is quicker than the others because not much of the evidence needs to be proven before the court are:

• If the husband, just after a short span of his marriage, gets involved with some other woman without the knowledge of his legal wife
• If the woman gets pregnant by the child of another person, with whom she is accused of being in a sexual relationship
• Adultery by desertion (living separately for 2 years continuously without the will of their spouse) or doing cruelty to the wife
• Intercourse performed by the husband with his sister-in-law or the maid.

Whereas, on the other hand, if the petitioner has settled the marriage even after knowing that their spouse was in an adulterous relationship, then the petition stands null and void.

Hindu Laws on Adultery as a Ground for Divorce

Under Section 13(1) of the Hindu Marriage Act, 1955, adultery is considered having a sexual relationship with a person of another gender while in a legal marriage with the consent of their own and the third party, which, after proving with proper evidence, the other person in the marriage can file for judicial separation specifically for Hindus, Buddhists, Jains, or Sikhs, but for the essential part, it becomes necessary to prove that the petitioner was actually married to the said person and the respondent had voluntary sexual intercourse with the third party. However, another act called the Special Marriage Act, 1954, is applicable to all marriages registered under the act, regardless of religion.

In the case of Chetan Dass v. Kamla Devi (2001), the appellant and respondent were married to each other according to Hindu ceremonies. After marriage, the appellant had an extramarital affair with one of the nurses in the hospital. Where he was working, and so his wife left him. He appealed, claiming that the allegations were made by the respondent. Moreover, her act of deserting him without any reasonable cause amounted to mental torture. The Supreme Court observed that a man cannot take advantage of his own wrong. However, the decree for divorce was not passed because the wife or respondent in this case, was ready to continue her marriage. Agreed to live with him only on the condition that he must leave the other woman and end his adulterous relationship.

Muslim Laws on Adultery as a Ground for Divorce

As considered by the Quran, adultery is an act that should be dealt with by death. But since we live in a democracy that shall not be executed and should proceed with proper procedure. So, under the Muslim Marriage Act, of 1939, the husband, if he has proper evidence that his wife is guilty of being involved in an adulterous act, and if asked by the husband, accusing his wife of the offense fails to prove that the wife is guilty, the wife under this can file for divorce, but if asked by husband to revoke his accusations and he does so, the wife’s claim subsists. Furthermore, in the Dissolution of Muslim Marriages Act, 1939, Section 2(viii)(b) states that when the husband accuses his wife of adultery in order to defame her in society, the wife can sue him on the basis of cruelty.

In the case of Zaffar Hussain v. Ummat-ur-Rahman, 1919, the wife claimed that her husband accused her of being in a sexual relationship with her brother. The court held that if a Muslim woman is falsely accused of adultery, she can claim divorce or sue her husband if he tries to defame her for that. However, in this case, the court dismissed the accusation of the wife as it was just an act of the wife’s family.

In the case of Tufail Ahmad v. Jamila Khatun, 1962, the bickering between the husband and wife led to the wife leaving the house of her husband and moving into her brother’s house. After almost a year, the husband filed for adultery against his wife but later retracted it. But then the wife filed a case against the husband on false allegations and thus got the divorce.

Christian Laws on Adultery as a Ground for Divorce

The law regarding adultery for Christian couples is mentioned under the Indian Divorce Act, 1869, and the Indian Christian Marriages Act, 1872. Contained in Section 22 of the Indian Divorce Act, 1869, barring the Christian couple from getting a divorce under any circumstances, the exception being if proven guilty of adultery. The procedure is that the couple first needs to get their marriage declared null and void by the court, and then they may approach the court. Under this law, the men only have to prove the wife guilty of adultery, while on the other hand, the wife, including the offense of adultery, had to prove cruelty, insanity, change of religion, etc.

The Bombay High Court in the case of Pragati Varghese vs. Cyril George Varghese, 1997, commented upon this, stating that this puts unnecessary pressure on the wife, is blatantly unfair, and allowed adultery as an independent ground.

In the case of Ammini E.J. v. Union of India, 1995, the Kerala High Court held that a Christian woman having to prove the offense of cruelty or desertion coupled with adultery is violative of Section 21 of the Constitution of India, which states that No person shall be deprived of his life or personal liberty except according to a procedure established by law. Thus, Article 21 secures two rights: the right to life and the right to personal liberty.

Evidence and Proof

The burden of proving adultery always lies with the one accusing, and providing such evidence that is beyond proof is a very challenging task. Adultery may be proved either by circumstantial evidence, direct evidence leading to an inference of the act, or by confession. However, by the very nature of the act, it is extremely rare to produce direct evidence or eyewitnesses who have seen parties in a compromising state. The conduct of parties, association, illicit affection, and guilty attachments like letters are some of the instances that create an inference upon which the court acts. Mere presumptions and medical evidence do not lead to an inference of adultery, as this could have been done before marriage too, and the law only acts upon adultery done after the marriage.

The situations where the court upheld adultery:

• A person having no personal gain who witnesses the person having a sexual affair with some third party in the night is sufficient to prove adultery.
• Finding some letters in which the person accused in some way has confessed to being in an adulterous relationship
• An unknown person found in a wife’s bed after midnight in a compromising situation, or starts to distance herself from her family and is found in the company of a complete stranger to her husband and the family, or even a single act of sexual intercourse with another person, is enough proof of adultery.
• The wife stays at her parent’s house for a very long period of time for whatever reasons but gets pregnant, and her husband claims that she was in an adulterous relationship since he had no access to her. Also, the wife is not able to provide proper evidence for her claim that her husband used to visit and stay overnight at her parent’s house.
• The child born beyond twelve months of temporary separation of husband and wife and having no marital consortium, meaning getting no benefits a spouse is entitled to, including emotional, physical, etc. types of benefits.

Cases where the plea of adultery was rejected by the court:

• No one is guilty if the wife is found going in a vehicle with some other man or just having a normal conversation with him, like at a family function or on a normal occasion.
• The wife gets pregnant, but the husband’s claim of him getting a vasectomy cannot be proven by him.
• If a husband files a petition for divorce under adultery 8 years or so after he comes to know that his wife has committed adultery, he also cannot explain why there was a delay.
• There was no support or evidence by anyone present in the house, say the husband’s parents and children, while she was alone in her bedroom with some other male.

Section 125 of the Code of Criminal Procedure, 1973 Vs. Section 13 (1) (i) of the Hindu Marriage Act, 1955

Section 125 of the Code of Criminal Procedure, 1973, acts as an assistance to Section 13 (1) (i) of the Hindu Marriage Act, 1955, in the form of financial aid. As stated under Section 125(4) of the Code of Criminal Procedure, 1973, the wife will not be entitled to any sort of maintenance of expenses of the proceeding, as the case may be that she refuses to live with her husband for no proper reason or that her husband fills the case of her being involved in the offense of adultery and not a mere single lapse. Lapse, also called infidelity, is an act of not being faithful to your spouse, not just on the grounds of an illegal sexual relationship but also of any other sort of cheating.

Section 125 claims that not proving the maintenance to the wife is adulterous. But that does not affect the couple’s child in any sort, the child continues to get the maintenance from the father but also from the wife, if earning, and also the custody of the child goes to the father, the exception being that if the child is of a certain age and needs to be by their mother’s side, etc., then in this case custody resides with the mother for that time period. A recent decision of the Gujarat High Court has confirmed that it refused the claim of the adulterous wife of getting the maintenance from the husband. But it did not strip away the right of the child of getting the maintenance.

Conclusion

Since the beginning, adultery has always been discouraged. Moreover, according to any of the religions in the world, it is considered a sin to be unfaithful. Not just to your spouse but also to God. In India, until 1976, only adultery cases could be filed if the person was living in adultery. But now, a petition for 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.

Under both laws, namely Hindu law, marriage is considered a sacrament, whereas, under Muslim law, it is a contract. The court evaluates each case depending on its merits and demerits, including factors like children, financial status, family, etc. It has been seen that where children are involved, there has been a delay in the judgment. As a suggestion, adultery should be considered more cautiously, and to set some standards. Muslim cases must be more gender-neutral, giving more rights to women. As before women were not given the benefit of getting a decree of divorce. Compared to the husbands, who are in a far better position as they can marry more than twice and still be protected under the law.

In the recent case of Joseph Shine vs. Union of India, 2018, nine adulteries were turned down for being unconstitutional under Section 497 of the IPC. As they were against the constitutional structure, which was not even gender-neutral. This sort of discrimination must be removed and should be made more gender-neutral. Furthermore, for Christians, men only had to prove adultery. Whereas women had to prove cruelty, insanity, and a change of religion, though this completely changed over time.

References:

• Bare Act: Adultery as a Ground for Divorce
• https://indiankanoon.org/doc/946025/
• http://www.legalserviceindia.com/articles/hmcp_adopt.htm: Adultery as a Ground for Divorce
• https://blog.ipleaders.in/hindu-adoption-maintenance/: Adultery as a Ground for Divorce
• https://www.indiafilings.com/learn/hindu-adoptions-and-maintenance-act/: Adultery as a Ground for Divorce
• https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/hindu-adoptions-and-maintenance-act-1956