Adultery
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This article is written by Abanti Bose, pursuing B.A.LL.B.(H) from Amity University Kolkata, India. The objective of this article is to legally educate the spouse about the legal remedies that are available to him or her and the legal steps that are available in India which could be taken against his or her spouse if they commit the offence of adultery.

Introduction

An institution like marriage heavily relies on commitment, loyalty and faithfulness of partners. Among all the religions and all the countries; marriage has been given a pious and a 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 also stated that the man committing the offence of adultery was unfaithful to the married man and he is solely responsible for sexual liaison. However, after Joseph Shine, a non-resident Keralite, filed 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 but 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. It talks about the definition of adultery, the collection of evidence against the spouse, the legal procedure to be followed, hiring a lawyer and presenting the case before the court in case the couple wants to opt for divorce and terminate their marriage. In this situation, the burden of proof relies heavily on the spouse who is seeking divorce on the grounds that his or her spouse has committed the act of adultery. 

Understanding the term 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 defined 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 fine, or both. 

Decriminalization of adultery 

In Joseph Shine v. Union of India, Joseph Shine a non-resident Keralite, filed 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 Supreme Court unanimously struck down Section 497 of IPC and Section 198 (2) of 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. 

How to take legal action for adultery in India

Even if the offence of adultery is decriminalized under Section 497 of the Indian Penal Code, it constitutes to be 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 that both pastries should be loyal to each other, 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 Section 13(1)(i) of Hindu Marriage Act, 1955, the Act lays down that if either the husband or wife after 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 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 the 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 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 the provisions laid down in the Dissolution of Muslim Marriage Act, 1939, a married woman under the Muslim law is entitled to obtain a decree for the dissolution of marriage if her husband associates with women 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 it is a valid ground for divorce. 

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. 

                  

The 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 are considered adulterous; the birth of a child beyond the period of twelve months after the cessation of the marital consortium between the spouses, admission of adultery, etc. 
  2. The spouse may want to appoint a private investigator to collect evidence which could be presented before the court. 
  3. After the spouse is done with the collection of evidence he or she might 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. 
  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:
  • Firstly, both the parties need to file for divorce before the district court.
  • 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. 
  • 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. 
  • 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:

  • Firstly, the spouse needs to file the divorce petition before the family court.
  • Secondly, the court will send a copy of the petition to the spouse.
  • Then both the parties should be prepared to face the court proceedings as the divorce is contested by either the husband or the wife. 
  • 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. 

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. 

References

 


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