Adultery under the
Indian Law
The
word adultery derived its meaning from the Latin verb adulterium that means -
to corrupt. According to the dictionary meaning, a married man commits adultery
if he has intercourse with a married woman with whom he has not entered into
wedlock. However, with an increase in the means of communication and media, it
is no longer forbidden to speak about it in the present scenario, especially in
the metropolitan towns where adulterous relationships are at an increasing due
to which marriages are breaking. The relationship of marriage is sacred in all
senses. If someone commits adultery, that person renounces the marriage vows
and breaches the trust and love on which is the base of a marriage.
Introduction
Adultery
means a predetermined sexual contact between two people of the opposite gender
who are unmarried under the law. In other words, it is a physical relationship
with someone outside marriage and the dishonesty by a married person to their
spouse. It is also known as lust, vulgarity, infidelity, unchastity of thought,
or an act for someone else’s spouse.
It
is different from rape in the context that adultery is voluntary. Whereas, in
rape, there is no consent of both the individuals for a physical or intimate
relationship. But it is a must in the
case of adultery. The term adultery was, however, associated with the married
woman only who got involved in an adulterous act with someone who wasn’t her
husband.
Adultery
categorized into two types: -
1.
Single- If the relationship is between a married person and an unmarried
person.
2.
Double- If both the partners involved are married to someone else.
Adultery
is an indecent act that affects the loyalty of people and causes a lot of
hardship for the sufferers. Thus, people who violate their marital vows and
commit adultery must be punished under the law. Even if, the legal system or
the constitutions of all the countries explains adultery differently, the
primary motif is physical intimacy outside the marriage with the person who is
not the spouse. Some countries also consider alienation
of affection or desertion by one partner for a third person as a form of
adultery.
Landmark
judgement
In
the case of Joseph Shine v Union of India 2018, the Supreme Court held
its historic decision on September 27, 2018, by striking off the 158-year old
law on adultery from the criminal statute book (Section 497 of the Indian Penal
Code that punished adultery) since it became obsolete.
The
law was challenged by Joseph Shine, an Indian who settled abroad. He found the
law to be obsolete, prejudiced, and irrational. He stated that the choice to
prosecute their deceiving spouse should be given to both husband and wife since
the objective of the law is to protect the faith of marriage. Whereas the
initial provision permitted only the husband to file a case of adultery against
the other man with whom his wife was having an extramarital affair. He further
pointed out that provision worked on the concept of husband’s consent as no
case under this section was filed if a husband consented to his wife for having
an illegitimate relationship with a stranger, inconsiderate of the woman’s
consent.
Highlights of the argument that provoked the
Judgement
The
law does not make it an offence for a married man to engage in the act of
sexual intercourse with a single woman and the wife is restrained from
prosecuting her husband for being involved in an adulterous relationship.
It
is only an adulterous man who can be prosecuted for committing adultery, not an
adulterous woman regardless of the relationship is consensual. Thus, an
adulterous woman is not treated as an abettor to the offence and is immune from
criminal liability.
It
was evident from reading section 497 of IPC that women were treated subordinate
to men since it laid down that if there was a consent of the man, then there
was no offence of adultery by the woman. Therefore, this treated the woman as
totally inferior to the will of the master, which gave an impression of the
social dominance that was prevailing when the penal provision was drafted.
Section
497 does not treat men and women equally since women are not subject to
prosecution for adultery and cannot prosecute their husbands for adultery as
well. Additionally, if there was consent or connivance of the husband of a
woman who has committed adultery, no offence can be established. The section
lacks an adequately determining principle to criminalize consensual sexual
activity and is therefore violative of Article 14.
According
to section 198(2) of CrPC, wife of an adulterer is not considered as an
aggrieved person. The principle of the provision suffers from an absence of
logicality of approach. Therefore, it undergoes the vice of Article 14 of the
Constitution remarkably being arbitrary.
Article
15(1) prohibits the State from discriminating on the grounds of sex. Still, the
husband is considered an aggrieved party by the law if his wife engages in
sexual intercourse with another man, but it is not same with the wife if her
husband does the same. Therefore, the offence of adultery distinguishes a
married man from a married woman on the ground of sex. Thus, the provision is
discriminatory and violative of Article 15(1).
Violation
of dignity of woman and Article 21 [Right to life]-Section 497
diminishes the fundamental dignity which a woman is entitled to have by
creating distinctions based on gender stereotypes which creates an indentation
in the individual dignity of women. Therefore, the same offends, Article 21.
Adultery
continues to be a ground for divorce- There can be no shadow of a doubt
that adultery can be a ground for any kind of civil wrong, including
dissolution of marriage.
Adultery
as a ground for Divorce
Marriage
is regarded as a sacrament as well as a civil contract; hence adultery is considereda
sin. Personal laws all around the world denounce adultery, and it is treated as
a ground for divorce or judicial separation. However, couples cannot use
adultery as a ground for divorce if they lived together for six months after
knowing about the act of adultery.
Adultery
as a ground for divorce under Hindu Law
Adultery
as a ground for divorce in India has been defined under Section 13(1) of the
Hindu Marriage Act, 1955, as an act of having voluntary sexual intercourse with
a person who is not the spouse of that person. Hence, it becomes essential for
the petitioner to establish that the marriage took place between them and that
the respondent had voluntary sexual intercourse with another person.
Adultery
was treated as an immoral act before the enactment of the Marriage Laws, 1976,
and was subjected to shame as well as irrespective of gender. However, it was
not a ground for divorce. Adultery was considered as the grounds for judicial
separation and divorce after the 1976 amendment, which marked a great
development in the Hindu Personal Laws.
Section
10 of the Hindu Marriage Act, 1995 declares adultery as a ground for judicial
separation. The provision states that the parties to a marriage may file a case
of judicial separation under any grounds specified in Section 13(1) regardless
of the marriage being solemnized after or before the commencement of this act.
In
the case of Sulekha Bairagi v. Prof.
Kamala Kanta Bairagi, 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 favour of the petitioner on the basis of evidence provided due to
which judicial separation was granted.
Adultery
as a ground for divorce under Muslim Law
According
to the Quran, adultery is a severe offence which must be dealt with punishment
to death which is not the case in most democracies since the constitutions call
for the humane treatment of its citizens. The husband has a complete right to
divorce his wife if he is competent to prove that his wife had an adulterous
relationship, but it is not the same for the wife. She may only in
circumstances of false accusations can either ask her husband to repudiate the
accusations or divorce him under lien. However, if the husband repudiates the
claims and withdraws from the act of adultery, the wife’s claims is thus
cancelled.
In
the case of Tufail Ahmad v. Jamila Khatun, the Allahabad Court held that only
such wives who are not guilty of adultery may use this as a ground for divorce
or judicial separation.
The
Dissolution
of Muslim Marriages Act, 1939 defines little in Section
2(viii)(b) that where a husband falsely accuses his wife of adultery with an
intention to create her evil reputation, she can sue him on the ground of
cruelty.
In
the case of Zaffar Hussain v. Ummat-ur-Rahman, the plaintiff’s wife alleged
that her husband declared before several persons that she had an adulterous
relationship with her brother. Thus, the court held that if a Muslim woman is
falsely accused of adultery and she can plead for divorce on that ground. But
the wife cannot file a divorce if the allegation of adultery is true.
Adultery as a ground for divorce under Christian Law
The
law regarding divorce and judicial separation among Christians in India is
contained in the Indian Divorce Act, 1869 and the Indian Christian Marriages
Act, 1872. Section 22 of the Indian Divorce Act bars divorce mensa et toro,
however, it makes provisions for a decree of judicial separation on the grounds
of adultery.
The
procedure for divorce in India
under the Indian Christian Marriage Act is dual in nature. Firstly, the couple
has to obtain an annulment from the Church and then they may approach the court
for a decree of divorce. However, under the Act, the wife had to prove the
presence of other grounds along with adultery such as such as, cruelty, change
in religion, insanity, etc., whereas the husband only had to prove that his
wife had indulged in an adulterous Act. Section 11 of the Act, however,
provides that the adulterer has to be pleaded as co-respondent.
The
Bombay High Court in the case of Pragati Varghese vs. Cyril George Varghese,
commented upon this bystating that this puts unnecessary pressure on the wife
and is blatantly unfair, and allowed adultery as an independent ground. In the
case of Ammini E.J. v. Union of India, the Kerala High Court held that a
Christian woman having to prove the offence of cruelty or desertion coupled
with adultery is violative of Section 21 of the Constitution of India.
The
provisions for Judicial separation under the Indian Divorce Actallows Christian
women to file judicial separation on the grounds of adultery. Section 22 of the
Indian Divorce Act bars a decree of divorce, but states that a judicial
separation may be obtained by both the husband and the wife on the grounds of
adultery.
The Special Marriage Act, 1954
The Special Marriage Act
recognizes adultery and states that if the respondent has after the
solemnization of the marriage, had voluntary sexual intercourse with any person
other than his/her spouse, and it is a valid ground for divorce.
The
Act has recognized adultery itself as an offence, and no additional offence has
to be proved in order to obtain a decree of divorce or judicial separation. The
present position on the concept of burden of proof has also been relaxed under
the Special Marriages Act, 1954.
In
the case of Sari v. Kalyan, it was stated that adultery may be proven by
a preponderance of evidence and need not be proved beyond reasonable doubt as
prima facie evidence as to the act of adultery may not be present and
circumstantial evidence will have to suffice.
Court Precedents
Earnest John White vs Mrs. Kathleen Olive White and
Others (AIR 1958 SC 441):
In
this case, the husband filed a decree of divorce on the grounds of adultery. The
trial court granted the divorce decree, but the high court reversed the
judgement of the high court. The case went on appeal to the Supreme Court. The
question before the Supreme Court, in this case, was whether just an
inclination to have sexual intercourse and thereby leading to adultery would
arise in this case or not by living in one room as the respondent and the
appellant wife stayed in one room for a night. The court held that her conduct
as shown by the evidence clearly justifies that she has committed adultery and
therefore Supreme Court reversed the order of the high court and thereby
granting the decree of divorce to the husband.
Hirachand Srinivas
Managaonkar Vs Sunanda (AIR 2001 SC 1285):
In
this case, the respondent that is the wife filed a petition for divorce seeking
judicial separation against her husband. Accordingly, the high court of
Karnataka granted a decree for judicial separation and ordered the husband to
give maintenance charges to his wife and daughter. But the husband after two
years filed a petition for divorce under section 13(1-A) (a)of the Hindu
marriage act, 1955 on the ground that there has been no resumption of
cohabitation between the parties for more than one year after passing the
decree of judicial separation. Hence the question before the Supreme Court was
that whether this can be taken as a ground of divorce even after the husband
and the wife as in this case are living under the same roof even after the
passing of the decree of judicial separation. The court held that husband who
continued to live in adultery even after the passing of the decree of judicial
separation with his wife will not succeed for a petition of divorce under
section 13(1-A) (a).
Condonation
of Adultery- The fact that the husband cohabited with the wife even after the
knowledge that she had been guilty of cohabiting with another person would be
sufficient to constitute condonation. The husband's condonation of adultery
disentitles him to the decree of divorce, even if such condonation is for the
sake of the dignity of the family.
Evidence
required by the court to prove Adultery as a ground of divorce
Adultery
is one of the major reasons for getting a divorce and one can easily obtain a divorce
on the grounds of infidelity.
Not
statutory but still these presumptive grounds are accepted by the court to
prove adultery.
1.
Circumstantial evidence,
2.
Contracting venereal disease,
3.
Evidence of visit to houses of ill-repute,
4.
Admissions made in previous proceedings,
5.
Confessions and admissions of the parties.
Mere suspicion is not sufficient.
Customary
rules prescribe the types of evidence that can be offered to prove guilt or
innocence. There must be a showing by the prosecutor that the accused party and
another named party had sexual relations. Depending on state statutes, the
prosecutor must show that either one or both parties to the adultery were wed
to someone else at the time of their relationship.
Evidence
that the defendant had the chance to have sexual relations coupled with a
desire, or opportunity and inclination, might be sufficient to
prove guilt. Photographs or testimony of a witness who observed the couple
having sexual intercourse is not necessary. The fact that a married woman
accused of adultery became pregnant during a time when her husband was absent
might be admissible to demonstrate that someone other than her spouse had the opportunity
of engaging in illicit sex with her.
Letters
in which the accused parties have written about their amorous feelings or
clandestine encounters may be introduced in court to support the assertion that
the parties had the inclination to engage in sexual relations. Character
evidence indicating the good or bad reputation of each party may be brought
before the jury. Evidence of a woman's sexual relationships with men other than
the party to the adultery generally cannot be used; however, if her reputation
as a prostitute can be demonstrated, it may be offered as evidence.
Suspicious
activities and incriminating circumstances may be offered as Circumstantial Evidence.
In
India s. 112 of the Evidence Act 1872 lays down that if a person is born during
the continuance of a valid marriage between his mother and any man or within
two hundred and eighty days after its dissolution, the mother remaining
unmarried, it shall be the conclusive proof of his legitimacy as a son of that
man unless it is proved otherwise. The standard of proof for rebuttal of
legitimacy is beyond reasonable doubt and not merely the balance of
probability.
In Goutam Kundu v State of West Bengal, the
Supreme Court has laid down the propositions of law as to the permissibility of
blood test to prove paternity which is as follows:
1.
The courts in India cannot order blood test
as a matter of course.
2.
Whenever applications are made for such
prayer in order to have a roving inquiry, the prayer for blood test cannot be
entertained.
3.
There must be a strong prima facie case in
that the husband must establish non-access in order to dispel the presumption
arising under s. 112 of the Evidence Act.
4.
The Court must carefully examine as to what
would be the consequence of ordering the blood test, whether it will have the
effect of branding a child as a bastard and the mother as an unchaste woman.
5.
No one can be compelled to give a sample of
blood for analysis.
Different types of
Evidences
With
today’s heavy influence on technology, more and more people use text messages
and email their preferred methods of communication. During a contested divorce,
it is sometimes necessary to provide evidence that supports an individual case
for abuse or other negative actions. Under certain circumstances, it is
possible to use text messages as supporting evidence during the proceedings.In
order for a text message to be usable in a divorce case, it must be
authenticated. To authenticate a text message, the other party must readily
admit to the text, a witness must attest that he or she saw the message being
created, or reply authentication must be demonstrated. Hearsay is an issue that
must be addressed before a text message can be admitted to a divorce case. A
text message can only be used in court if it fits a hearsay exception.
Hotel
Cases- Where the adultery is alleged to have been committed in a hotel or a
boarding house with an unknown person, the court views such case with
suspicion. There is a need in some cases for the petitioner to prove the background
of an adulterous association. The court makes a finding of adultery where a hotel
bill is produced and a witness from the hotel is called to say that the
respondent and a person of the opposite sex were in the bedroom together.
Adultery
After Petition: Ante-Nuptial Intercourse- A petition for divorce on the ground
of adultery should be based on adultery committed prior to the presentation of
the petition. But evidence of acts of adultery subsequent to the filing of the
petition is admissible for the purpose of drawing inference by the court about
the course of conduct of the respondent. But there may be necessary to file a
supplementary petition incorporating those subsequent acts of adultery. The
general rule is that it is not permissible to plead ante-nuptial intercourse,
because it is said that marriage operates as oblivion to all that has passed.
But ante-nuptial intercourse may be pleaded where adultery is charged with the
same person with whom ante-nuptial intercourse took place. Cohabitation between
the spouses prior to the marriage is relevant in relation to ancillary relief.
This suggests that other relations prior to the marriage with other persons may
likewise be relevant to the facts of a particular case.
The
Supreme Court ruled that a DNA test can be ordered by courts as a legitimate
and scientifically perfect tool to establish adultery in divorce cases which
was a significant shift from the age-old legal convention that prioritized a
child's legitimacy in marriage over a divorce being sought on the ground of
infidelity by a partner,
The
DNA tests are now being often ordered by courts for determination of paternity
but allowing such scientific examinations for deciding upon the issue of
infidelity too tends to move away from legal precedents.
In
the case of Ravinder Yadav vs Padmini Payal, the High Court of Punjab
& Haryana while deciding a divorce petition under Section 13 of the Hindu
Marriage Act noted that to prove cogent adultery evidence is required and that
ordinary wear and tear in married life does not lead to divorce.
The
Court stated "…. As a matter of fact, adultery cannot be considered without impleading the alleged adulterer as
per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather
unsubstantiated and uncorroborated testimony associating the respondent with an
adulterer has caused mental cruelty to the respondent".
Private
detective agencies
Substantial
evidences are required to establish adultery at the time of filing for a
divorce on grounds of the same. The aggrieved party is required to gather
compelling evidence backing their case to prove adultery by the spouse. This
can be achieved with the help of a detective agency which may assemble
information and photographs that may help the aggrieved party to justify their
spouse’s adulterous act. The evidences must relate to places and dates where
the adulterous party and co-respondent may have privately met.
Private
Detective Agencies handles private investigations and inquiry in cases related
to divorce, insurance or criminal cases for the specific individual or group.
At present, it is not obligatory for them to be registered or have a license so
as to operate in India since there is no law till now to regulate the
activities of Private detective agencies as well as the private detectors hired
by them. However, bill to provide a system of licensing for such Agencies and
to regulate their conduct has been introduced as Private Detective Agencies
(Regulation) Bill, 2007 but is still pending in the parliament.
In
India, the Private Investigation agencies are Legal, but there is no law to
regulate the conduct of such agencies. Government hardly have any control over
these agencies. They are free to operate in India without any restrictions
because of the absence of any law to regulate them.
The
Private Detective Regulation Bill, 2007 is still pending in the Parliament. The
proposed bill seeks to bring the Private Detective Agencies within the scope of
Legal ambit in order to prevent the Agencies from getting involved in illegal activities
like terrorism, etc.
1.
The Private Detective Agency hiring such
Private Detectives must be having Licence to operate in India;
2.
The Evidence must have been legally obtained;
3.
Such Evidence has been obtained without
violating any procedure of Law.
4.
It Should not violate the people’s right to privacy.
P
v. Mrs P & Mr. - In this case, it was held
that a very high degree of probability of evidence is required to prove
adultery or cruelty. Therefore, while accepting the evidence of Private
Detective, due diligence and necessary care must be shown by Judges and the
parties.
Adultery
had been discouraged throughout the history of mankind. In India, till 1976, a
petition for divorce on the grounds of adultery could be filed only when the
spouse was “living in adultery”, but now a petition can be filed on the grounds
of adultery even when there has been only on the instance of voluntary sexual
intercourse outside the marriage.
The
Courts have taken a serious view of adultery and granted contested divorce in India
taking into consideration various social conditions and circumstances of the
party seeking a divorce, including the presence of children. Delay in filing of
the petition, especially when there are children involved is taken lightly.
There
is no steadfast rule that can be commonly used for all adultery-related cases.
The court has the discretion to treat each case on its own merits and demerits.
These might include children, society, and also the economic status of the parties.
The author of this blog/Article
is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling different legal matters. He
has prepared and got published Head Notes for more than 10,000 Judgments
of the Supreme Court and High Courts in
different Law Journals. From his
experience he wants to share this beneficial information for the individuals
having any issues with respect to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
No.74, 1st Floor, 6th
Cross,
Malleswaram,
Bengaluru-560003
Mob: 9686971935
www.kishanretiredjudge.com
.png "Legal Notice issued to CM Bhagwant Maan for defamation by Shri. Sardar Sukhbir Singh Badal")
