Adultery may be defined as the act of a married person having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Personal laws all around the world condemn adultery and it is considered as a ground for divorce or separation. Even the Hindu Shastric laws which made no provisions for divorce, condemned adultery in unequivocal terms. Under the present Indian personal laws, adultery is laid down as one of the grounds for divorce or judicial separation.

The essential ingredients in an offence of adultery are that:

1. There should be an act of sexual intercourse outside the marriage, and
2. That such intercourse should be voluntary.

There has been a disparity between various judgments of the Courts regarding the extent to which circumstantial evidence can be termed as proof of adultery. Such that in the case of Banchanidde v Kamladas, the Odisha High Court held that the circumstances should be so compelling that the only irresistible conclusion can be adultery.

However, in the case of Subbarma v. Saraswathi, 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. The Courts were faced with a dilemma in the case of Maclenna v. Maclenna, where the question was raised as to whether Artificial Insemination Donor (AID) being used by the wife without taking the consent of the husband can be ruled as adultery.

The English Courts rightly ruled in favor of the wife stating that AID cannot amount to adultery on the part of the wife. The burden of proof, however, always lies on the petitioner to prove whether the act of adultery actual took place or not.

Hindu Laws On Adultery As A Ground For Divorce

Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove that she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her.

The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The Indian Courts time and again had stressed that adultery has to be proven beyond reasonable doubt. However, in the recent years, the Supreme Court is seen to be deviating away from such notions stating that proving beyond reasonable doubt is essential in criminal cases and not in civil cases. In the case of Dastane v. Dastane, the apex court held that there certainly is no necessity of the presence of proof beyond reasonable doubt where personal relationships are involved especially those between a husband and wife.

In the case of Ammini E.J. v. Union of India, the Kerala High Court held that the husband is in a favorable position with respect to it being a ground for divorce because the wife has to prove adultery along with some other aggravating circumstances and hence it is discriminatory towards the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery, without any other qualifying offence such as cruelty or desertion.

Before the enactment of the Marriage Laws, 1976, adultery was treated as a conduct of grave immorality. It was a thing of grave shame irrespective of the gender, however it wasn’t a ground for divorce. After the 1976 Amendment, the grounds for judicial separation and divorce are the same and it is a mark of great development in the Hindu Personal Laws.

Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage being solemnized after or before the commencement of this act.

In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, both Section 10 and Section 13 of the Hindu Marriage Act. According to the husband, she used to visit the house of the co-respondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in the favor of the petitioner on merit of the evidence provided, and judicial separation was granted. The above cases are mainly testament to the fact that cases such as these are indeed taken on a case to case basis, and decided on the merits of that particular case.

Muslim Laws On Adultery As A Ground For Divorce

Adultery, according to the Quran, is a severely punishable offence and is prescribed to be dealt with by way of stoning to death. But this is not the case in most democracies where the constitutions call for humane treatment of its citizens. The husband has every right to divorce his wife if he is capable of proving that his wife had an adulterous relationship. But the wife may only in circumstances of false accusations can either ask her husband to retract the accusations or divorce him under lian. However, if the husband retracts the claims and apologizes for the same in a prescribed manner, the wife’s claims subsists. In the case of Tufail Ahmad v. Jamila Khatun, the Allahabad Court has further explained that only such wives who are not guilty of adultery may use this as a ground for divorce.

The Dissolution of Muslim Marriages Act, 1939 provides little reprise as it states in Section 2(viii)(b) that where a man leads an infamous life or associates himself with women of evil repute, she can sue him on grounds of cruelty. This is as close as the prevalent Muslim law goes to the concept of adultery.

In the case of Zaffar Hussain v. Ummat-ur-Rahman, the wife of the plaintiff alleged that her husband had stated before several persons that she had illicit intercourse with her brother. The court held that if a Muslim woman is falsely accused of adultery and she can claim divorce on that ground. But at the same time the wife cannot file a divorce under Islam if the allegation of adultery is true and suit can be filed in case of an irregular marriage.

Christian Laws On Adultery As A Ground For Divorce

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 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 and stating 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 Act allows 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.

Special Marriage Act

The Special Marriage Act, 1954 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, 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.

Conclusion

Adultery has always 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 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 divorce including the presence of children. Delay in filing of 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, familial considerations and also the economic status of the parties.