This article is written by Gursimran Kaur Bakshi, from the National University of Study and Research in Law, Ranchi. This article is divided into two parts. Part I deals with all the possible legal recourse that the husband can take against the wife who is found to be cheating on him. Part II focuses on the legal recourses available to the wife against the husband.
Table of Contents
When Jane Austen in Pride and Prejudice wrote ‘Such a change in a man of so much pride excited not only astonishment but gratitude for to love, ardent, it must be attributed’. By this statement, she wanted to explain the power and gravity that love holds.
What makes life meaningful is love and the right that makes us human is the right to love. But where there is love, there can be no place for infidelity. When two people enter into a sacrosanct union of marriage, they take vows like ‘till death do us apart.’ To breach that vow is nothing less than a sin. But, in reality, the partners do breach that vow and infidelity happen to be a way common through which they breach it.
In India, according to recent data of 2020, 53% of women admitted having a relationship outside marriage out of the 1525 married Indians on whom the research was conducted. But most partners tend to not speak against cheating for the sake of not breaking up the family and for the welfare of their children (if any). This article will answer some of the pertinent questions on cheating committed by the wife against the husband.
What amounts to cheating depends on a case to case basis
Cheating is illegal and immoral. But you cannot sue your spouse for cheating in a marital relationship. Because cheating by a spouse or infidelity in a marriage is not a crime in India. Cheating in simple terms means showing affection, emotionally or sexually, to someone who is not your spouse and without the consent of the spouse. It does not have an exclusive definition because what amounts to cheating would depend on a case to case basis. It has an individualistic perception based on endurance and sensitivity.
There is no law that defines cheating in a marital relationship
Section 415 of the Indian Penal Code, 1860 (IPC) defines ‘Cheating’ as fraudulently deceiving and inducing the person so deceived to deliver any property or to consent to the retention of any property by any person.
This definition cannot be applied in a marital relationship based on mutual trust. The bare reading of this provision makes it clear that there must either be dishonesty or fraud. However, cheating by a spouse does not necessarily require the existence of these ingredients.
A spouse may cheat the better half out of sheer frustration or to fill the emotional void. However, there may be cases where Section 415 can be used in cases of cheating by a spouse. For instance, if the wife deceives the husband by requesting money from him to pay her bank debts but instead uses it to marry her boyfriend.
So, in essence, what amounts to cheating shall depend on person to person and the evidence that they are able to collect. Below is the list of evidence that the husband can collect against the wife.
What evidences can be used to prove to cheat
- Property Papers.
- Bank Transactions, if both spouses have a joint account.
- Witnesses, if any.
If you know your wife is cheating, should you hire a detective
Hiring a detective is an absolute no-no. This is probably because it compromises the privacy rights and human dignity of the spouse. The wife is entitled to the right to privacy and human dignity. Both are the facet of Article 21 of the Constitution of India.
In India, there is no clarity on whether hiring a detective is legal because there is no law that regulates it. The Private Detective Agencies (Regulation) Bill, 2007, which was supposed to regulate the same was withdrawn from the Rajya Sabha. However, generally speaking, the legality of hiring a detective is compromised because it hampers the exercise of the fundamental rights of the person.
The job of a private detective is to find out the information and the method through which the information is collected is not necessarily legitimate. So, a private detective can cause interference to rights such as:
- The right to privacy. It was recognised as an intrinsic part of the right to life in Justice KS Puttaswamy v. UOI (2018).
- It may amount to ‘stalking’ under Section 354D of the IPC because the detective may try to contact the woman to foster personal interaction in order to gather the information.
- The detective can also be held liable for ‘voyeurism’ if he tries to capture the private acts of the woman wherein she has exposed her body parts under Section 354C. If the same acts are done online, the person can be held liable under Section 66E of the Information Technology Act, 2000.
- Further, any kind of online anonymous conversation to gather any information is also punishable under Section 507 of the IPC for causing ‘criminal intimidation’.
Hence, neither the fundamental rights of a person cannot be jeopardised nor the existing laws can be violated.
Can you sue your wife for adultery
A straightforward answer to this is no. Even when adultery was considered an offence under Section 497, women had absolute immunity against any kind of criminal liability. Finally, now that adultery has been held unconstitutional in Joseph Shine v. UOI (2018), there is no point in bringing a criminal case against the wife for the same.
Section 497 defined adultery as when a man has sexual intercourse with the wife of another man without the consent of her husband.
On the bare reading of this provision, one may be able to find out the issues with it. These are:
- First, the provision only makes the man liable for committing adultery. The married woman has complete immunity.
- Second, it is gender-biased. It considers a married woman as the chattel of the husband because if permission by the husband is granted, it will not amount to adultery.
Hence, you cannot sue your wife for adultery.
Will your wife’s cheating amount to domestic abuse/cruelty
On domestic abuse
Unfortunately, the Indian legislation is more women orientated. It is indeed true that laws curbing social evils and extending protection to women are important, but the laws should aim to be gender-neutral in a progressive society.
In India, the main legislation governing domestic violence is the Protection of Women From Domestic Violence Act, 2005 (‘PWDVA’). But the law is only applicable to women. The legislation is comprehensive and has a wide definition of domestic violence under Section 3 which includes inflicting emotional, physical, and economic abuse. If the legislation was gender-neutral, cheating by a wife would have been treated as the ground of domestic violence since cheating inflicts emotional abuse on a spouse. Provided that a causal link between the two having an illicit relationship and inflicting cruelty is established. However, currently, there is no remedy for a husband here.
Also, it is important to note that cheating itself does not amount to cruelty. There is no such separate discussion on the meaning of cruelty except for the purposes of criminalising dowry death under the IPC. So, in terms of establishing cruelty, either mental or physical, you will not find a remedy in the IPC.
The Supreme Court in Pinakin Mahipatray Rawal vs State of Gujarat (2013) and K.V Prakash Babu v. State of Karnataka (2016) observed that the extra-marital affair per se does not amount to cruelty within the context of Section 498A. Illicit relationships would definitely remain illegal and immoral but may not attract criminal liability. Unless it becomes the reason to drive the spouse to commit suicide because then it will bring home the charges of dowry death under Section 498A and Section 306.
Further, the link between an illicit relationship and mental cruelty carries with it a high degree of burden of proof to be discharged. It means that there must be substantive evidence to prove the same. This was held in Ghusabhai Raisangbhai Chorasiya vs State Of Gujarat (2015).
What to do if you do not want to divorce your wife
Refer to a marital counsellor
Although this may sound unconventional, there are marriages that tend to survive even if one of the partners has cheated on the other. If the partners are still willing to live together and the cheating spouse has promised to change her mind and be faithful to the relationship, the parties can opt for counselling.
This method may still be unpopular in India, but counselling, in general, is popular all around the world and there is no sense of discomfort or stereotype attached to it. Now, the point is, when should the partners opt for counselling and why should they do so?
The answer to the latter is, sometimes, partners cheat on each other not because they want to. It is because they might not be getting the love and time that is required to maintain a healthy married life. For instance, if both the partners are working and they are not able to spend time with each other, there is a possibility that they may end up in divorce or cheating.
So, indulging in a blame game would only create more marital discord between the spouses and may also have a negative impact on the child. To reconcile such a broken relationship is to first acknowledge the mistake from both sides. Partners should definitely visit a relationship counsellor which would help them to overcome the growing differences between them. A counsellor will help the partners to identify the issues and restore mutual trust.
Things to remember before referring to a counsellor:
- Make sure to discuss mutually on this before referring to a counsellor because the information that would be shared with the counsellor is intimate and personal.
- A counsellor is someone who enjoys confidentiality. He/She may be someone who would know even the smallest detail about the couples to understand the differences between the two. Hence, the counsellor enjoys a lot of power. Couples must be thorough with the background research before finalising a counsellor.
File a petition for the restitution of conjugal rights
Restitution of conjugal rights is a way to reconcile the discord in a matrimonial relationship. A petition can be filed in the Court and once the Court is satisfied, it may pass an order for both parties to cohabit. Usually, this petition is filed when either of the spouses has deserted the other for no reasonable cause. But even in the cases of cheating when one of the spouses has been trying to restore the marital life and wants to give the marriage a second chance, a petition can be filed.
Under Hindu law
- A petition for the restitution of conjugal rights can be filed under Section 9 of the Hindu Marriage Act. But the wife can neither be compelled to cohabit with the husband nor can she be compelled to consummate. This will be in violation of her right to privacy and liberty protected under Article 21 as held in Saroj Rani v. Sudarshan Kumar Chadha (1984). Other than that, if there are reasonable grounds that the wife has withdrawn from the society of the husband, a petition for restitution of conjugal rights will stand.
- Here is a temple for the petition on conjugal rights. The aggrieved spouse will just have to fill in the information in the form and file the same before the district Court. The form also contains the affidavit that should also be submitted along with the form.
- Under Section 22 of the Special Marriage Act, a petition for restitution of conjugal rights can be filed by the husband before the District Court. Here is a temple of the petition.
- Before filing the petition for the same, the petitioner must have evidence like proof of marriage including photos of the marriage and birth certificate of the child, if any. These pieces of evidence would be necessary to prove the factum of marriage.
Under Parsi Law
- Under Section 36 of the Parsi Marriage and Divorce Act, 1936, a petition for the restitution of conjugal rights can be filed. A similar temple as mentioned above can be used for filing a petition for conjugal rights under Parsi law.
Under Christian Law
- Section 32 of the Divorce Act, 1869, the husband can file a petition for the restitution of conjugal rights. Please refer to the temple of the petition above.
On divorce and separation
Can you divorce your wife for cheating/adultery
Cheating itself is not a ground for divorce. But adultery can be a ground for divorce although the person cannot be prosecuted for the same.
Divorce under Hindu Law
- Under the Hindu Marriage Act, Section 13(1)(i) makes adultery a ground for divorce. The Husband can file a petition before the District Court for a decree of divorce.
- Under the Special Marriage Act, Section 27(1)(a) is a ground for divorce based on adultery.
- The format of the divorce petition is here. The format is going to change as per the type of divorce that the couples are seeking.
Divorce under Muslim Law
- Divorce under Muslim law is either governed through personal laws or under the Dissolution of Marriage Act, 1939. The latter codifies the grounds on which Muslim women can seek a decree for the dissolution of marriage.
- Under personal law, there are two forms of talaq namely, Talaq-ul-Sunnat and Talaq-ul-Biddat. Talaq-ul-Sunnat is further divided into Talaq-e-Ahsan and Talaq-e-Hasan. This is known as the best form of talaq as it is revocable. Whereas, Talaq-ul-Biddat is an irrevocable form of talaq. It is considered a bad form of talaq.
- Under Talaq-e-Ahsan, a single pronouncement is made by the husband during the period of tuhr (state of purity) which lasts for three menstrual cycles. The husband must not indulge in sexual intercourse during the period of Iddat. If he does so, the divorce will be revoked on implied terms. And if he does not, the divorce will become irrevocable.
- Under Talaq-e-Hasan, the husband has to pronounce talaq in three successive periods of the menstrual cycle. The first and the two pronouncements can be revoked. However, once the third pronouncement is made, the divorce becomes irrevocable.
- The Talaq-ul-Biddat or triple talaq is considered the most inappropriate form of talaq where the husband can divorce the wife by three continuous pronouncements in a go. This form of divorce is irrevocable. The Supreme Court has held that this form of talaq is unconstitutional in Sharaya Bano v. UOI (2017) for manifesting arbitrariness. Thus, violating Article 14 of the Constitution of India.
Divorce under Parsi law
- Section 32(d) of the Parsi Marriage and Divorce Act, 1936, a husband can file for divorce on the grounds of adultery.
Divorce under Christian law
- The Christians can dissolve marriage under the Divorce Act, 1869. Section 10(1)(i) allows the husband to divorce her wife on the ground of adultery. A petition for the same can be filed before the District Court.
- Under Section 11, the husband will have an adulterer(the man) as the co-respondent along with the wife, unless the name of the adulterer is unknown or he is dead, in the petition for divorce.
Divorce under Jewish law
- In India, Jews are governed through personal laws but these are uncodified. That is why there is no such provision that could govern their matrimonial affairs. Recently, a petition was filed by a Jewish couple before the Family Court in Bombay for mutual divorce. The Court, while dismissing the petition, observed that the laws governing Jews are their personal laws which remains uncodified.
What to do if the wife makes counter allegations of cheating on the husband
Making scandalous and false allegations of having an illicit affair amounts to mental cruelty. The Court in Swati v. Arvind (2015) defined cruelty as “when one spouse has so treated the other and manifested towards him or her so as to cause such feelings towards him or her as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse”.
A divorce petition on the ground of mental cruelty can be filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Further, mental cruelty can be inflicted without sharing a roof together. In K. Srinivas Rao v. D.A. Deepa, (2013), it was observed that sharing a household is not a prerequisite in filing a divorce petition on the ground of mental cruelty.
What to do if both the husband and wife want to mutually divorce each other
Under Hindu Law
- The parties can also file a petition under Section 13B for divorce on mutual consent under the Hindu Marriage Act, 1955.
- Under the Special Marriage Act, 1954, the parties are allowed to file a petition for mutual divorce under Section 28.
Divorce under Muslim Law
- The partners can mutually divorce each other through Mubarat. In this form, the parties can agree mutually on the dissolution of marriage by agreement as stated in Shahadabi M. Isak vs Abdul Ajij Abdul Latif And Others (1996).
Divorce under Parsi law
- Under the Parsi Marriage and Divorce Act, 1936, Section 32B would allow both the partners to apply for a divorce by mutual consent.
Divorce under Christian law
- Section 10A was added through the Indian Divorce (Amendment) Act, 2001. The husband can file a petition for the dissolution of marriage under this Section to the district Court. This single provision covers grounds for mutual divorce, or that the couples have been living separately for two years, or that they are unable to live together.
What to do if both the husband and wife want judicial separation
Under Hindu law
- The Court can grant an order of judicial separation under Section 10 of the Hindu Marriage Act, 1955, to the parties.
- Under Section 23, the Special Marriage Act, 1954, the parties can apply for judicial separation and once the decree of judicial separation is granted, the parties are not obliged to cohabit.
Under Parsi law
- Section 34 of the Parsi Marriage and Divorce Act, 1936, allows the parties to file a suit for judicial separation.
Under Christian law
- A petition for judicial separation on the grounds of adultery can be made under Section 22 of the Divorce Act, 1869.
Can you claim maintenance from your wife
Under Hindu law
The husband can claim maintenance from the wife under the Hindu Marriage Act, 1955. Section 24 and Section 25 of the Hindu Marriage Act respectively allows the husband to claim maintenance on the following conditions:
- Section 24 allows the husband to claim maintenance of pendente lite. It means that the husband can claim maintenance from the wife only if he is unable to manage himself during a legal proceeding. For instance, if the parties have filed for divorce and the husband is unable to maintain himself during that period, he can invoke the Section.
- Section 25 can be invoked in cases in cases where the partners have decided to file for mutual divorce under Section 13B but afterwards, the husband feels he will not be able to maintain himself. The husband may not be employed at the time when he found out that his wife is cheating on him. The Court can order the wife to maintain the husband through monthly allowances. This would depend on factors like the gross total income of the wife.
- Section 24 and 25 respectively are considered gender-neutral provisions as both wife and husband can claim maintenance provided that either of them does not have an independent income. This position of law was held in Rajnesh v. Neha (2020).
- Under the Special Marriage Act, 1954, maintenance is only available to women.
- Other than this, the PWDVA and Section 125 of the Criminal Procedure Code, 1973, are only applicable to women.
Under Parsi law
- The husband can claim alimony pendente lite during a legal proceeding if he has been unable to maintain himself during the same from the wife under Section 39 of the Parsi Marriage and Divorce Act, 1936.
- The Court can grant permanent alimony to the husband under Section 40 at the time of passing a decree for divorce or judicial separation.
Under Christian law
- The husband can claim maintenance pendente lite during a legal proceeding if he has been unable to maintain himself during the same from the wife under Section 36 of the Indian Divorce Act, 1869.
- Permanent maintenance cannot be claimed by a husband against the wife under Christain law.
Can you claim custody of the children from your wife
Usually, the custody of the child remains with the mother. However, in certain cases, the husband can have custody of the children. But here are some of the laws under custody that can be claimed by the husband:
Under Hindu law
- Under Section 26 of the Hindu Marriage Act, 1955, a petition for the custody of the child can be presented to the District Court by the husband.
- Under Section 38 of the Special Marriage Act, 1954, a petition for the custody of the child can be presented to the District Court.
- The format of the application can be found here. The husband just has to fill the form and file the same before the Court.
Under Guardians and Wards Act
- Under the Guardians and Wards Act, 1890, an application for the guardianship of the minor can be made under Section 9 to the District Court. The husband can apply for the same as mentioned under Section 10 of the Act.
Under Muslim law
- In Muslim law, the mother is entitled to the custody of the minor male child till the age of 7 years old and that of 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).
Under Parsi law
- Under the Parsi Marriage and Divorce Act, 1936, Section 49 will allow the husband to file a petition for the child. The Court is also empowered to make interim or final orders on the custody of the child while dealing with the petition concerning divorce or judicial separation of the parties.
Under Christian law
- If a decree of judicial separation has been ordered by the Court, the husband can file a petition to the same Court for the custody or maintenance of the child under Section 42 of the Indian Divorce Act, 1869.
- On the decree of the dissolution of marriage, an application for the custody of the child can also be filed under Section 44.
In India, the laws are not progressive enough to be gender-neutral. That is why the remedy available to the husband is limited. Whereas, for the wife, the laws protect her at every stage of the relationship. Through this article, at least, this has been highlighted that the need for an hour is to acknowledge that men too deserve to be equally protected in a marital relationship because cheating has no gender.
Since the current position of the law allows the husband to seek limited or no remedy against the wife for cheating, it should be advised that the partners do not indulge in tactics like taking the help of the detective agency or doing something that may risk the life of the partner. It is better to confront the partner and have a healthy discussion on the same. Still, if the husband feels he cannot forgive his wife for what she did to him, he can file a divorce or they can decide to separate on mutual terms.
But if partners manage to reconcile, relationship counselling is the best option that they should prefer to be able to understand the root cause of the problem. Because at the end of the day, regaining trust would remain the most important facet of a relationship.
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