Adultery
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This article is written by Abanti Bose and further updated by Pujari Dharani, a B.A.LL.B. student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. This article discusses and explains the offence of adultery and the procedures for taking legal action against it.

Introduction

An institution like marriage heavily relies on the commitment, loyalty and faithfulness of partners. Among all the religions and all the countries; marriage has been given a pious and sacred position. Therefore, if either of the spouses commits adultery, they are not only breaking the promises that were made to each other but also ruining the sanctity of the marriage. The offence of adultery previously held the man who committed the act of adultery guilty and stated that the married woman was a helpless victim of adultery and she was free from “criminal responsibility”. It can be stated that the man committing the offence of adultery, a sexual liaison, was unfaithful and disloyal towards his wife. However, after Joseph Shine, a non-resident Keralite, filed a Public Interest Litigation under Article 32 of the Constitution of India challenging the constitutionality of the offence of adultery, the apex court struck down the offence of adultery as it violates the basic dignity of women and treats women as the personal property of the husband. 

Though the act of adultery is no longer a criminal offence it is still a ground for divorce in both Hindu and Muslim personal law and therefore, the objective of this article is to legally educate the spouse about the legal remedies that are available to him or her and the availability of legal procedures in India which could be taken against his or her spouse if they commit the offence of adultery. 

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Meaning of adultery 

The word adultery is derived from the Latin word ‘Adulterium’ which is termed as the extramarital sex and is considered objectional on social, religious, moral, or legal grounds. Merriam-Webster dictionary defines adultery as “voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.” Under Section 497 of the Indian Penal Code, 1860 the act of committing adultery is criminalized, it states that any person who has sexual intercourse with a married woman without the consent or connivance of her spouse, such act amounts to the offence of adultery. The punishment for committing adultery may extend up to imprisonment for five years, or with a fine, or both. 

Other stipulations provided by this provision for constituting the offence of adultery are as follows:

  1. The man committing the offence of adultery must have knowledge that the person with whom he is having sexual intercourse is a married woman, or, at least, he has a reason to believe the same.
  2. The actions of the said man must not amount to the crime of rape. That means the woman has to willfully consent to the act.
  3. It is not an offence of adultery if a married man has sexual intercourse with an unmarried woman, divorced woman, or widow. The cases in which the spouse of the woman consented are also excluded from the ambit of adultery.

Besides this, adultery is also known as an “extra-marital affair”. It is a moral crime in Indian society because almost all religions in India consider it a sin.

Decriminalisation of adultery

In Joseph Shine v. Union of India, Joseph Shine a non-resident Keralite, filed a Public Interest Litigation under Article 32 of the Constitution of India challenging the constitutionality of the offence of adultery under section 497 of the Indian Penal Code, along with Section 198(2) of Criminal Procedure Code which dealt with prosecution for offences against marriages. 

On 27th July 2018, a five-judge bench of the Supreme Court unanimously struck down Section 497 of IPC and Section 198 (2) of the Criminal Procedure Code as being violative of Articles 14, 15 and 21 of the Constitution of India. 

The bench held in the judgement that the Section is violative of Article 14, which deals with the right to equality and it only penalizes men and not women. Article 15(1) of the Constitution prohibits the State from discriminating on the grounds of sex. The offence only considers the husband as the aggrieved party if his wife commits the offence of adultery but the law does not consider the wife as an aggrieved party if her husband commits sexual intercourse with another woman. Also, it is violative of Article 21 of the Constitution which deals with the protection of life and personal liberty, and section 497 of IPC treats women as the personal property of the husband and goes against the basic dignity of women. 

The bench further stated that: “Treating adultery an offence would be tantamount to the State entering into a real private realm. The act, i.e., adultery does not fit into the concept of crime. If it is treated as a crime, there would be an immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.” Therefore, at present, adultery is not a criminal offence, but a civil wrong as it causes a breakdown of marriage, especially when there are pre-existing marital issues between spouses.

Reasonable ground for divorce in case of adultery in marriage

Even if the offence of adultery is decriminalized under Section 497 of the Indian Penal Code, it constitutes a reasonable ground for divorce, i.e. if either the husband or wife commits adultery, the other person can file for divorce solely based on this reason. Marriage is a pious bond and involves, Marriage is a pious bond and involves loyalty from both parties, therefore if either party is violating the sanctity of the bond, then the law allows the other person to file for divorce on the ground that his or her wife committed the act of adultery. 

Under Hindu personal law

Both Smritis and Dharmasutras, among other Vedic texts, prohibit illegal sexual relations between a man and a woman and award punishment for both wrongdoers. Based on this, the Hindu Marriage Act, 1955, recognised the offence of adultery as grounds for divorce.

Under Section 13(1)(i) of the Hindu Marriage Act, 1955, the Act lays down that if either the husband or wife after the solemnization of marriage had sexual intercourse with any person other than his or her spouse, then that person has committed the offence of adultery and it is a reasonable ground to file a divorce.  A Hindu man, as well as the a woman, can seek divorce on the grounds that his or her spouse committed the act of adultery.  Therefore, under the Hindu Marriage Act, having voluntary sexual intercourse with someone other than his or her spouse is a reasonable ground for divorce. 

Under Muslim personal law

In Muslim law, marriage is generally considered to be a civil contract. The purpose of marriage is stated to be the legalisation of sexual intercourse between the parties to the marriage, the procreation of children, and conferring legitimacy on those children. The act of adultery by one spouse is considered to be a breach of duty. Additionally, Islamic law treats the commission of adultery as an atrocious act, as given in Quran Surah Al-Isra Verse 32. Furthermore, the Holy Book states that the God Allah stipulated punishment for the said wrong in the Quran (4: 15-16) and, hence, one should not shy away or hesitate to punish the wrongdoers.

Under Muslim personal law, it is an allegation of adultery to the wife by the husband that entitles her to file a suit for dissolution of marriage and to get a divorce if the charges are proven to be false. According to Muslim law, a marriage is valid until a verdict is passed by the judge. To dissolve a marriage under the doctrine of lian, (which states where the wife is charged with adultery by her husband and the charge is false) the court should determine whether the charges of adultery were unjustly made.

And in Islam, sexual relation out of wedlock is a major sin. According to Section 2(viii)(b) of the Dissolution of Muslim Marriage Act, 1939, a married woman under Muslim law is entitled to obtain a decree for the dissolution of marriage if her husband associates with woman of ill-repute. Although adultery as a ground for divorce is not mentioned in the Act, the interpretation of the above Section helps us to understand that if a Muslim man indulges himself in adultery his wife is entitled to divorce by treating her husband’s adulterous acts as cruelty under Section 2(viii) of the said Act.

Under Christian personal law

Marriage, as per Christianity, is the divine bond and should not result in separation or termination by divorce. The Holy Book, the Bible (Deuteronomy 22:20-24), also says that the persons involved in illicit sexual intercourse, including the wrong act of adultery, must be punished, which also includes the death penalty, irrespective of gender. Thus, both the New and Old Testaments regard adultery as a great sin as it violates marital fidelity.

Type of evidence needed for proving adultery in a marriage

In every criminal trial, adducing evidence and proving it by the person alleging adultery is necessary in order to punish the person who has committed the wrong. According to the principles of the Evidence Law, judgment can be made based on direct evidence as it has a higher evidentiary value. If the case has only circumstantial evidence, the court waits for the petitioner to present direct evidence but cannot go on to decide the matter solely based on the circumstantial evidence.

However, in the case of adultery, direct evidence is difficult to get therefore one has to rely on circumstantial evidence which should be sufficiently presented before the court so that the act of adultery will be inferred from it. It can be proved before the court by presenting pieces of evidence like:

  • Circumstantial evidence,
  • Evidence which states non-access and the birth of children,
  • Evidence of visits to the houses of ill-repute,
  • Contracting venereal disease,
  • Admissions that have been made in previous proceedings. 

It is essential that there must be circumstances amounting to proof that opportunities could be used, such as the association of the parties was so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.

Steps to follow to take legal action against the spouse if he or she commits adultery

The steps to follow to take legal action against the spouse if he or she commits the act of adultery:

  1. Firstly, it is extremely important to ensure that the act is adulterous. These acts can be considered adulterous; when there is a birth of a child beyond the period of twelve months after the cessation of the marital consortium between the spouses, if the act of adultery is admitted by the spouse, or in any other such circumstances that prove the commission of the adultery.  
  2. The aggrieved spouse may also appoint a private detective or investigator to collect evidence  that could, subsequently, be presented before the court. 
  3. After the spouse is done with the collection of evidence he or she  should contact a lawyer as it is important for him to weigh out his options and also to understand the legality of admission of pieces of evidence before the court, according to the personal law under which their marriage is performed, contracted, or registered. 
  4. Fourthly, if the spouse wants to file for divorce then he or she should move to court and file a petition for divorce. 
  5. If both the husband and wife after reviewing the above factors decide to opt for divorce through mutual consent, then:
    1. Firstly, both the parties need to file for divorce before the district court.
    2. Before filing the petition, couples should live separately for a period of one year or more. Then after the petition is allowed parties are required to file a statement and if any party is unavailable then the statement will be filed by his or her family member. 
    3. Now, before the court, couple needs to give reasons as to why they are unable to live together and mention in the petition that they have mutually agreed to dissolve the marriage. 
    4. Finally, the court will inspect the documents and after a period of 6 months and not more than 18 months will give a date for listening to the parties. And after hearing the parties,  if the court is satisfied then it may pass a decree of divorce declaring the marriage to be dissolved. 
  6. If the parties try to seek divorce through contest, then:
    1. Firstly, the spouse needs to file the divorce petition before the family court.
    2. Secondly, the court will send a copy of the petition to the spouse.
    3. Then both parties should be prepared to face the court proceedings as the divorce is contested by either the husband or the wife. 
    4. Finally, if the divorce is granted then the court will further give a six-month span for reconsidering the issue and the maintenance which ought to be provided will also be decided. 
  7. Maintenance which is to be provided after the divorce: If the wife commits the act of adultery, then she will not be entitled to receive maintenance from her husband or if she refuses to live with the husband without any sufficient reason or cause. However, if the husband commits the act of adultery then he will be liable to provide maintenance to the wife if she is unable to fend for herself.

Punishment for adultery by treating it as cruelty under Section 498A IPC

Whether the husband’s act of adultery is regarded as cruelty under Section 498A of the IPC so that one who commits such a matrimonial offence can be punished by criminal courts, is a most important as well as interesting question. A few argue that an act of adultery can be regarded as mental cruelty because such betrayal by the husband causes huge sorrow to the wife, which, sometimes, may lead to depression and other mental trauma. On the other hand, a few people contend that mere adultery by the husband does not attract Section 498A of the IPC because the woman would not suffer any physical or mental harm or because such an incident is not so serious or intense that the woman would likely commit suicide. Let us now know how the Supreme Court answered this vital question.

In the case of Pinakin Mahipatray Rawal v. State of Gujarat (2013), the Supreme Court decided that just because the husband has an extra-marital affair during the continuance of the marriage, it would not constitute cruelty under Section 498A of the IPC. However, the Court, in the above case, stated that, if such an act of adultery committed by the husband instigates, abets, or intends to abet the wife, directly or indirectly, to commit suicide as per the wording of Section 498A and Section 306 IPC, the husband can be charged with cruelty by his wife and can also be sentenced to imprisonment by criminal courts once the gravity or intensity of the offence is proved by the prosecution. Therefore, the court must examine the facts of each case in order to decide whether the wife experienced cruelty from her husband, which induced her to commit suicide. In the famous case of K.V. Prakash Babu v. State of Karnataka (2016), the Supreme Court suggested taking a few factors, such as the social status of the parties to the suit and their individualistic perception, into account while deciding the case of adultery as cruelty.

In another important authority, Siddaling v. State of Karnataka Through Kalagi Police Station (2018), the accused was convicted under Section 498A and sentenced to rigorous imprisonment for two years on the grounds of both dowry demands and adultery. The victim even took the extreme step of committing suicide. His acts were proved by the respondent with many witnesses and documentary evidence. Based on these, the Supreme Court concluded that the psychological imbalances in the wife, which are the reason for her commission of suicide, were created because of the husband’s continued extra-marital affair.

The Supreme Court firmly held, in Laxman Ram Mane v. State of Maharashtra (2010), that adultery by the husband would clearly amount to cruelty under Section 498A of the IPC. Even if the incident is not so serious as cruelty, it can still be considered harassment or misbehaviour on the part of the husband towards the wife. In Chami v. State (2013) Cr LJ 3441, the Court regarded the husband’s act of bringing a concubine to his house so they could live together as a couple and have sexual relations in front of the married wife as cruelty and could be punished under Section 498A of the IPC. Nevertheless, allowing the first wife and her child to live in the matrimonial home where the current wife was residing does not amount to cruelty within the explanation of clause (a) of Section 498A of the IPC, as ruled by the Supreme Court in the case of Kantilal Martaji Pandor v. State of Gujarat and Anr. (2013).

Important case laws surrounding adultery 

Valsarajan v. Saraswathy (2003)

In the case of Valsarajan v. Saraswathy (2003), the petitioner, Valsarajan, and respondent, Saraswathy, married in 1987, which was eventually dissolved in 1997 on the grounds of adultery committed by the wife. During the divorce proceedings, the wife claimed maintenance, which was not sustained because she is not entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973, on the ground that she had committed a marital wrong as per Section 125(4) of the CrPC. The woman made a fresh application as a divorced wife for maintenance, whereas the earlier one was claimed as the wife of the petitioner, for this reason, the court allowed the application. In the case of the divorced woman, the provision of Section 125(4) of the CrPC is not applicable, and the former husband is under a statutory obligation to maintain her if she is not in a position to maintain herself and is not married again. Therefore, the Kerala High Court held that the divorced woman is entitled to receive maintenance from her former husband under Section 125 of the CrPC.

M. Chinna Karuppasamy v. Kanimozhi (2015)

In the case of M. Chinna Karuppasamy v. Kanimozhi (2015), the question of whether a woman against whom the grant of divorce has been passed on the ground of the commission of adultery by her is entitled to get maintenance from the former husband is examined once again, this time, by the Madras High Court. The respondent, the divorced woman, made a plea that the provision of Section 125(4) of the CrPC applies only in cases where the marriage is continuing and, as the marriage is dissolved, she has the right to choose her sexual life. The Court observed that the meaning of wife, as per Section 125 of the CrPC, also includes divorced wives. Hence, in order to avail herself of maintenance from her former husband, the divorced woman has to lead a disciplined life similar to that when the marriage was in existence. Thus, the Court held that a woman who continues to live in adultery even after being divorced from her husband has no right to seek maintenance. Furthermore, the Court observed that if a man after divorce is obligated to maintain his former wife, similarly, a divorced woman has a duty not to start or continue an immoral relationship with another man.

Sh. Pradeep Kumar Sharma v. Smt. Deepika Sharma (2022)

The High Court of Delhi, in Sh. Pradeep Kumar Sharma v. Smt. Deepika Sharma (2022), clarified that the law in Section 125(4) applies only in those cases where the convict of adultery continued to live in adultery or repeated the acts of adultery. The High Court also referred to Sandha v. Narayanan (1999), which defined the phrase “living in adultery” as distinguished from “committed adultery”. Thus, if the wife continues adultery despite being divorced by the husband, she will not succeed in a maintenance petition against her former husband on the grounds of her continued adulterous conduct. The High Court further stated that, for an application of Section 125(4), the husband must provide substantial evidence that the wife is living in adultery after divorce. One or two instances of adultery will not attract the said provision; rather, it must be continuous or repeated acts of adultery. Therefore, the wife who occasionally commits adultery can seek maintenance.

Conclusion

The act of adultery is no longer a criminal offence but a reasonable ground for divorce in both Hindu and Muslim law. If the spouse feels that it is difficult to cohabit with his or her spouse and takes the decision to terminate the marriage on the grounds that his or her partner committed the act of adultery and was no longer faithful to him or her, then the law permits that. However, it is important to understand that the burden of proof lies with the party accusing the other party of the adulterous act, therefore, he or she should collect the relevant evidence to prove the offence of adultery before the court in order to terminate the marriage.

Adultery is an offence that negatively affects the institution of marriage in Indian society. The onus of protecting, promoting, and preserving the important social institution called marriage is on the state for the maintenance of order and peace in the country. Hence, offences like adultery must be controlled and punished in a civilised country.

Frequently Asked Questions (FAQs)

Can a person whose spouse has committed adultery seek matrimonial relief of judicial separation?

Except under Muslim law, all personal laws allow seeking judicial separation on the grounds of adultery committed by a spouse. In Section 10 of the  Hindu Marriage Act, 1955, it is clearly stated that the act of adultery by one spouse is a ground for judicial separation available to another. The aggrieved party can seek this relief under the Christian Marriage and Divorce Act, 1957. For Parsi people seeking judicial separation, there is a provision under their personal law i.e., Section 34 in the Parsi Marriage and Divorce Act, 1936. However, as there are no provisions in the Muslim Law talking about this matrimonial relief, Muslims cannot seek judicial separation on the grounds of adultery. But a Muslim woman can seek divorce after proving adultery to her husband.

Whether one single act of adultery is a ground for divorce?

Yes, there are many judicial decisions by various high courts asserting that even proving a single occurrence of adultery against the accused spouse by the alleging party. The Madhya Pradesh High Court, in the case of Rajendra Agrawal v. Smt. Sharda Devi (1992), ruled that “the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage.”

Would partial penetration constitute adultery in India?

In English law, a partial penetration is enough to prove constituting the offence of adultery. Similarly, in Indian law, the courts do not require the prosecution or petitioner to prove actual or full penetration. Considering the values and taboos of Indian society, the Madras High Court, in Subbarama Reddiar v. Saraswathi Ammal (1966), held that “If an unrelated person is found alone with a young wife after midnight, in her bedroom, in an actual physical juxtaposition unless there is some explanation forthcoming for this that is compatible with an innocent interpretation, the only interpretation that a Court of law can draw must be that the two were committing an act of adultery together.” It further said that this issue is a question of fact, not a question of law.

What is the rule of evidence in cases of adultery?

The burden of proving the act of adultery by a spouse is on the petitioner who is alleging it. It was, initially, mandated that the alleging party prove the said wrong beyond all reasonable doubt. However, it is difficult to prove such a wrong, which mostly happens behind closed doors, beyond all reasonable doubt. The rule has changed, and today, proving adultery by a preponderance of possibilities is sufficient. In Neelam v. Sunil (2009), the Madhya Pradesh High Court decided that if the accused persons stayed together in one room for a considerable period, it was satisfactory and convincing circumstantial evidence that the wife had committed adultery. Hence, the Court granted the decree for divorce in favour of the husband under Section 13(1)(i) of the Hindu Marriage Act, 1955. Thus, it is not necessary to prove the act of adultery with complete certainty but must prove it with a high degree of probability. 

References

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