Adultery
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This article is written by Gursimran Kaur Bakshi, a student at the National University of Study and Research in Law, Ranchi. This is in continuation with Part I of the article. The author in this article has explained all the legal recourse available to a wife against the husband who was found to be cheating on her. 

Introduction 

Cheating may have the same meaning for both spouses. However, in reality, there is a difference and that does come down to a lot of things. In a marriage, women are often dependent on the husband for financial needs. This is not to stereotype women but to state the actual reality. It is not because women cannot become financially independent; a lot of women are. However, marriage often brings a lot of limitations for women such as leaving the job to take care of the family.

Imagine a situation. You are a working woman but decided to leave the lucrative job to manage your household and children. Let’s say you were not forced to do this. Not all women are forced to; some choose it. And after leaving that job and dedicating your time to the growth and welfare of your family, you get to know that your husband is being unfaithful to you. You find him cheating on you with some other woman.  

Being someone who has made a lot of sacrifices, you feel humiliated. At the same time, you decide to not stay with him anymore. Now, what options do you have? Can you sue your husband for cheating on you? Let’s explore all the possible legal recourses you can take against your husband. 

What should you do when you find your husband cheating on you?

Cheating by a spouse has unfortunately become frequent these days. You might have heard of the story of how the Indian cricketer Mohammad Shami was found to be cheating on his wife with other women. This episode became nasty because the wife uploaded his personal chats with other women on social media. 

By large, cheating by a spouse is a matter of personal affair and it should remain the same. That is why it is not considered a crime in India. Marriage is a social institution that is based on mutual trust and understanding. When the spouse decides to cheat on the other, that trust is broken. But would that give the better half the right to sue the cheating spouse? 

The answer is probably no, and the answer will remain negative even if the husband is indulging in adultery. Let’s see why. 

Cheating means sharing affection, both emotional and sexual, with someone else other than your wife and without her consent. It depends on the circumstances. However, this general definition is not the same as the definition of cheating under Section 415 of the Indian Penal Code, 1860 (IPC). In a case where the husband is cheating on his wife with another woman, he requests the wife to hand over her jewellery which he will use to pay his debts. But instead gives the jewellery to the woman with whom he had an illicit affair. This would amount to cheating under Section 415. Hence, this Section will not have its application in matrimonial cases.

What evidences can be used to prove cheating?

  • Call records, emails, and texts could prove against cheating. But this should not be done at the cost of interfering with someone’s privacy. 
  • Photographs. 
  • Property papers. 
  • Bank transactions, if both spouses have a joint account.
  • Witnesses, if any. 

Should you hire a detective to find out about your husband’s extramarital relationship?

The answer to this is probably no. So, if you know about your husband’s affair and you have evidence for the same, a better approach is to confront him. Currently, there is no law in India that regulates the hiring of private detectives. Hence, the legitimacy of private detection agencies is unclear in India. The Private Detective (Regulation) Bill, 2007, which was supposed to govern the same has been withdrawn from the Parliament. 

Most importantly, hiring a detective will interfere with the fundamental right of the husband. The right to privacy, liberty and human dignity is protected under Article 21 of the Constitution of India. These rights will be jeopardised when a detective will try to gather the information through any means, illegitimate or not, by spying on that person, interfering in the private sphere and activities of the person. Right to privacy became a part of Article 21 in Justice KS Puttaswamy v. Union of India (2018)

Moreover, the detective can be punished under Section 66E of the Information Technology Act, 2000 for the violation of privacy and any kind of online anonymous conversation to gather any information is also punishable under Section 507 of the IPC for causing criminal intimidation. 

Should you sue your husband for adultery?

The answer to this is you cannot sue your husband for adultery. Adultery can be considered as the aggravated form of cheating wherein the male spouse engages in sexual intercourse with a woman who he knows to be the wife of someone else. Currently, adultery is not a crime in India. It was defined in Section 497 of the IPC as:

“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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor”.

Section 497 which penalised adultery has been held unconstitutional in Joseph Shine v. Union of India (2018) by the Supreme Court because:

  • Only the male was held liable. 
  • The woman had complete immunity.  
  • The provision is gender-biased. 
  • It did not punish the husband indulging in an extramarital affair with an unmarried woman. 

Hence, with or without the provision, the effective use of this provision would be limited. 

Does your husband’s cheating amounts to domestic violence?

The answer to this is probably yes. Let’s explore how. 

The Protection of Women Against Domestic Violence, 2005 is one of the most important legislation for the welfare of women who are in a married relationship or who are in a relationship similar to that of marriage (live-in relationship) under Section 2(f).

Under Section 3, the definition of domestic abuse includes:

  • Bodily harm, endangering the health or the well-being both mental and physical. 
  • Physical, verbal and emotional, sexual and economic abuse. 
  • Physical abuse means all those acts which cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the woman including assaults, criminal intimidation and criminal force. 
  • Verbal and emotional abuse can be understood as insults, humiliations, name-calling or ridiculing especially with regard to not having a child or a male child and repeated threats to cause physical abuse to any person who is related to the woman.
  • Sexual abuse means the conduct of a sexual nature that abuses, humiliates, degrades or violates the dignity of the woman. 
  • Economic abuse includes depriving of all/any economic or financial resources to which the woman is entitled under the law or custom or payable under the Court order. It shall also include the resources payable out of necessity including household necessities, maintenance, Stridhan, payment of rental related to the shared household. 
  • Further, it shall also include moveable and immovable property, shares, securities and bonds and everything else that the woman is entitled to by the virtue of the domestic relationship. 
  • Harassment, harm, injury with a view to coerce her to meet unlawful demands for any dowry, property, or valuable security. 

Since the above meaning of domestic abuse has a wider connotation, it is possible to include cheating committed by the husband within the ambit of different types of abuses provided that there is a link between cheating and inflicting cruelty and that link is established through substantive evidence. 

What to do when your husband is forcing you for dowry while he is cheating on you?

Cheating cannot be the sole reason to prosecute the husband under Section 498A of IPC as it per se does not amount to cruelty. This was held in K.V Prakash Babu v. State of Karnataka (2016). To make the husband liable under the abovementioned Section, there must be a direct causal link that cheating by the husband has resulted in mental cruelty which is the reason to drive the wife to commit suicide. Hence, there is a high degree of substantive proof associated with this. This was observed in Ghusabhai Raisangbhai Chorasiya v. State Of Gujarat (2015).

With the substantive proof, the accusation that the husband has indulged in an illicit relationship can go against the wife as this will amount to mental cruelty on the husband. In R v. J (2018), the Court observed that false accusation of extramarital relationship will be a ground for divorce. 

What to do if you do not want to divorce your husband?

Seek counselling 

This may be the most unconventional option, but partners can apply for couple counselling to pacify things between them. But this can only be pursued on a mutual consensus between the two. There are a lot of couples consulting agencies and therapists which can be opted by couples for either a short-term or a long-term. Apart from couple counselling, the partners can individually see a therapist if they are dealing with mental health issues because of the agony. 

Filing a petition for the restitution of conjugal rights 

If the wife thinks that the marital discord can still be solved but the husband is not willing to do so, she can file a petition for restitution of conjugal rights. This is a way through which the courts order the couples to cohabit together. 

Legislations

Hindu Marriage Act, 1955

Special Marriage Act, 1954

Parsi Marriage and Divorce Act, 1936

Divorce Act, 1869

Sections 

The wife can file a petition for the restitution of conjugal rights can be filed under Section 9 of the Hindu Marriage Act. But the husband cannot be forced to cohabit.

The wife has to file a petition as per the format mentioned here. This format is common but basic things may change as per the circumstances. 

The wife may consult a lawyer and then draft the petition to be filed before the district Court. 

Under Section 22 of the Special Marriage Act, a petition for restitution of conjugal rights can be filed by the wife before the district Court. 

Under Section 36 of the Parsi Marriage and Divorce Act, 1936, a petition for the restitution of conjugal rights can be filed by the wife. 

Under Section 32 of the Divorce Act, 1869, the Christain wife can file a petition for the restitution of conjugal rights. 

How to file a petition for divorce or separation against the husband?

Cheating is specifically not a ground of divorce. But the wife can divorce the husband on mutual consent, judicial separation, or through a divorce petition on the ground of adultery before the Court. Also, though adultery is not a criminal offence, civil remedies are still available against the same. 

Divorce under Hindu Law 

Legislations 

Adultery as a ground for divorce 

Divorce based on mutual consent 

Judicial Separation 

Hindu Marriage Act, 1955

Under Section 13(1)(i) a petition for divorce can be filed in a format mentioned here. This format can be used for filing divorce petitions in general. 

Under Section 13B, a mutual divorce petition can be filed by both parties in the format mentioned here

The format for judicial separation under Section 10 is mentioned here

Special Marriage Act, 1954

Under Section 27(1)(a), the wife can file a petition for divorce on the ground of adultery in a form mentioned here

Divorce based on mutual consent can be filed under Section 28 in a format mentioned here.

Section 23(1)(a)

Divorce under Muslim Law

Under customary laws 

  • Talaq-i-Tafweez and Lian are the different forms of talaq available to women under Muslim personal law. 
  • In Talaq-i-Tafweez, the right to pronounce talaq is delegated from the husband to the wife either temporarily or permanently. The wife thus pronounces talaq on behalf of the husband. 
  • In Lian, the woman is entitled to divorce her husband on the ground that he has alleged that the wife has indulged in adultery (Zina). The District Court has to first determine whether the allegations made by the husband were justified or not. 
  • Khula is a form of divorce at the instance of the wife. The wife can give divorce to the husband by returning the consideration/Mahr. To exercise the right to Khula, the woman can pronounce unilaterally and she does not have to go to Court. 
  • Mubarat is a form of divorce based on the mutual consent of both the husband and the wife.

Under Dissolution of Marriage Act, 1939

Under the Dissolution of Marriage Act, 1939, adultery is not a specific ground to obtain a decree of divorce. However, if the husband, because of his affair or otherwise also, inflicts cruelty on the wife, this will be a ground for divorce under Section 2(viii).

Divorce under Parsi Law

Legislation

Adultery as a ground for divorce 

Divorce on mutual consent 

Judicial separation 

Parsi Marriage and Divorce Act, 1936

Under Section 32(d), a divorce petition can be filed by the wife. 

Under Section 32B, both husband and wife will have to agree on a mutual divorce petition. 

Under Section 34, the wife can apply for judicial separation from the husband.

Divorce under Christian Law 

Legislation

Adultery as a ground for divorce 

Divorce on mutual consent 

Judicial separation on the ground of adultery 

Divorce Act, 1869 and Indian Divorce (Amendment) Act, 2001 

Section 10(1)(i) and Section 11.

The petitioner will have to make the adulterer a co-respondent in a petition for divorce under Section 11. The format for the same is mentioned here.

Under Section 10A, parties can file for mutual divorce in a format that can be referred to from here.

Under Section 22, the wife can apply for judicial separation on the ground of adultery. The format for the same can be present here

Divorce under Jewish Law

The personal laws of jews in India are unfortunately not codified. Thus, to seek a remedy under this would be difficult. 

What to do if the husband makes false counter allegations of cheating on the wife 

The Court in Vinita Saxena v. Pankaj Pandit (2006) defined mental cruelty as “wilful treatment of a party which causes suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouse harmful or injurious in that circumstance”.

Making false and scandalous allegations against the wife against her character and accusing her of unchastity is a ground for divorce based on mental cruelty. In Vijay Kumar Ramchandra Bhate v. Neelam Vijaykumar (2003), the husband had alleged that his wife was having an affair with her neighbour in the written statement. These accusations were indecent. The Court held that the quality, magnitude and consequence of the allegation has caused mental pain and suffering to the wife. This was a reasonable ground to seek divorce on the ground of mental cruelty.  

Can you claim maintenance from the husband? 

Types of maintenance 

Hindu Marriage Act, 1955

Hindu Adoption and Maintenance Act, 1956

Special Marriage Act, 1954

Parsi Marriage and Divorce Act, 1936

Divorce Act, 1869

Criminal Procedure Code, 1973

Pendente lite- maintenance can be claimed during ongoing legal proceedings for divorce or mutual separation. 

Under Section 24, the wife can file an application in this format, for maintenance during a divorce or judicial separation proceedings. Provided that she is unable to maintain herself during the same.

 

Section 36

Section 39

Section 36

 

Permanent- an application for permanent alimony is usually filed by the divorce petition or that on mutual separation or judicial separation has been decided by the Court. 

Under Section 25, an application for permanent alimony or maintenance can be filed in a format that can be referred to here

 

Section 37

Section 40

Section 37

 

Alimony and maintenance in the form of monthly allowance etc.

         

Section 125

This is a secular provision and married women of any religion can seek maintenance.

The format of the application is mentioned here.

Maintenance by husband if he resides with a concubine 

 

Section 18(2)(e).

The wife is entitled to maintenance even if she is living separately from her husband 

       

How to claim custody of the children? 

Usually, the custody of the minor child remains with the mother. However, if the child is with the father, the mother can do the following:

Legislations 

Sections 

Hindu Marriage Act, 1955

To get the physical custody of the child, a petition can be filed for the same to the District Court under Section 26.

Special Marriage Act, 1954 

The husband can apply under Section 38 through a petition to get custody of the child. 

Guardians and Wards Act, 1890

Another legislation that governs guardianship of a child is the Guardians and Wards Act, 1890. To get the guardianship of the child, an application can be made under Section 9 and Section 10 to the District Court.

Parsi Marriage and Divorce Act, 1936 

The Court, under Section 49 of the Parsi Marriage and Divorce Act, can make an interim order of custody and maintenance of the child on a suit, whereas, during the final order, a petition for the custody of the child can be filed before the Court.  

Divorce Act, 1869

In the case of judicial separation under Section 22, the Court can order interim custody to the wife under Section 41 before making a decree for the separation. The Court can also make an order for custody after making a decree for judicial separation under Section 42. 

Muslim law

In Muslim Law, it is a settled principle that the mother is entitled to the custody of the minor male child till the age of 7 years old and the minor female child till she attains puberty. The mother will be entitled to this right until and unless she decides to divorce her husband and remarry. This position of the law was highlighted in Unknown v. Sekh Jiayur Rahaman @Bakul (2016).

Conclusion 

There is no doubt that the law will protect women at every stage of their marital relationship. However, this can also not be denied that cheating and infidelity is a matter of personal affairs and the state cannot interfere and regulate the same. That is why the penalising provision on adultery was held unconstitutional. 

Thus, it is imperative that both spouses must discuss their differences before choosing a legal recourse. Other than this, the parties can opt for counsellors which will help them to solve their marital discord to an extent. Lastly, it is advisable that neither spouse should indulge in illegitimate means to seek revenge against each other. 

References


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