Kishan Dutt
Adultery under the Indian Law
Kishan Dutt Kalaskar 11 Nov 2020

Adultery under the Indian Law

Adultery under the Indian Law

The word adultery derived its meaning from the Latin verb adulterium that means - to corrupt. According to the dictionary meaning, a married man commits adultery if he has intercourse with a married woman with whom he has not entered into wedlock. However, with an increase in the means of communication and media, it is no longer forbidden to speak about it in the present scenario, especially in the metropolitan towns where adulterous relationships are at an increasing due to which marriages are breaking. The relationship of marriage is sacred in all senses. If someone commits adultery, that person renounces the marriage vows and breaches the trust and love on which is the base of a marriage.

 

Introduction

Adultery means a predetermined sexual contact between two people of the opposite gender who are unmarried under the law. In other words, it is a physical relationship with someone outside marriage and the dishonesty by a married person to their spouse. It is also known as lust, vulgarity, infidelity, unchastity of thought, or an act for someone else’s spouse. 

It is different from rape in the context that adultery is voluntary. Whereas, in rape, there is no consent of both the individuals for a physical or intimate relationship.  But it is a must in the case of adultery. The term adultery was, however, associated with the married woman only who got involved in an adulterous act with someone who wasn’t her husband.

Adultery categorized into two types: -

1. Single- If the relationship is between a married person and an unmarried person.

2. Double- If both the partners involved are married to someone else.

Adultery is an indecent act that affects the loyalty of people and causes a lot of hardship for the sufferers. Thus, people who violate their marital vows and commit adultery must be punished under the law. Even if, the legal system or the constitutions of all the countries explains adultery differently, the primary motif is physical intimacy outside the marriage with the person who is not the spouse. Some countries also consider alienation of affection or desertion by one partner for a third person as a form of adultery.

 

Landmark judgement

In the case of Joseph Shine v Union of India 2018, the Supreme Court held its historic decision on September 27, 2018, by striking off the 158-year old law on adultery from the criminal statute book (Section 497 of the Indian Penal Code that punished adultery) since it became obsolete.

The law was challenged by Joseph Shine, an Indian who settled abroad. He found the law to be obsolete, prejudiced, and irrational. He stated that the choice to prosecute their deceiving spouse should be given to both husband and wife since the objective of the law is to protect the faith of marriage. Whereas the initial provision permitted only the husband to file a case of adultery against the other man with whom his wife was having an extramarital affair. He further pointed out that provision worked on the concept of husband’s consent as no case under this section was filed if a husband consented to his wife for having an illegitimate relationship with a stranger, inconsiderate of the woman’s consent.

Highlights of the argument that provoked the Judgement

The law does not make it an offence for a married man to engage in the act of sexual intercourse with a single woman and the wife is restrained from prosecuting her husband for being involved in an adulterous relationship.

It is only an adulterous man who can be prosecuted for committing adultery, not an adulterous woman regardless of the relationship is consensual. Thus, an adulterous woman is not treated as an abettor to the offence and is immune from criminal liability.

It was evident from reading section 497 of IPC that women were treated subordinate to men since it laid down that if there was a consent of the man, then there was no offence of adultery by the woman. Therefore, this treated the woman as totally inferior to the will of the master, which gave an impression of the social dominance that was prevailing when the penal provision was drafted.

Section 497 does not treat men and women equally since women are not subject to prosecution for adultery and cannot prosecute their husbands for adultery as well. Additionally, if there was consent or connivance of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalize consensual sexual activity and is therefore violative of Article 14.

According to section 198(2) of CrPC, wife of an adulterer is not considered as an aggrieved person. The principle of the provision suffers from an absence of logicality of approach. Therefore, it undergoes the vice of Article 14 of the Constitution remarkably being arbitrary.

Article 15(1) prohibits the State from discriminating on the grounds of sex. Still, the husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but it is not same with the wife if her husband does the same. Therefore, the offence of adultery distinguishes a married man from a married woman on the ground of sex. Thus, the provision is discriminatory and violative of Article 15(1).

Violation of dignity of woman and Article 21 [Right to life]-Section 497 diminishes the fundamental dignity which a woman is entitled to have by creating distinctions based on gender stereotypes which creates an indentation in the individual dignity of women. Therefore, the same offends, Article 21.

Adultery continues to be a ground for divorce- There can be no shadow of a doubt that adultery can be a ground for any kind of civil wrong, including dissolution of marriage.

 

Adultery as a ground for Divorce

Marriage is regarded as a sacrament as well as a civil contract; hence adultery is considereda sin. Personal laws all around the world denounce adultery, and it is treated as a ground for divorce or judicial separation. However, couples cannot use adultery as a ground for divorce if they lived together for six months after knowing about the act of adultery.

Adultery as a ground for divorce under Hindu Law

Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as an act of having voluntary sexual intercourse with a person who is not the spouse of that person. Hence, it becomes essential for the petitioner to establish that the marriage took place between them and that the respondent had voluntary sexual intercourse with another person. 

Adultery was treated as an immoral act before the enactment of the Marriage Laws, 1976, and was subjected to shame as well as irrespective of gender. However, it was not a ground for divorce. Adultery was considered as the grounds for judicial separation and divorce after the 1976 amendment, which marked a great development in the Hindu Personal Laws.

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

In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, according to the husband, the wife frequently visited the house of the co-respondent where she was often found in a compromising situation with him and even used to neglect her duties. Thus, the decision was taken in favour of the petitioner on the basis of evidence provided due to which judicial separation was granted.

Adultery as a ground for divorce under Muslim Law

According to the Quran, adultery is a severe offence which must be dealt with punishment to death which is not the case in most democracies since the constitutions call for the humane treatment of its citizens. The husband has a complete right to divorce his wife if he is competent to prove that his wife had an adulterous relationship, but it is not the same for the wife. She may only in circumstances of false accusations can either ask her husband to repudiate the accusations or divorce him under lien. However, if the husband repudiates the claims and withdraws from the act of adultery, the wife’s claims is thus cancelled.

In the case of Tufail Ahmad v. Jamila Khatun, the Allahabad Court held that only such wives who are not guilty of adultery may use this as a ground for divorce or judicial separation.

The Dissolution of Muslim Marriages Act, 1939 defines little in Section 2(viii)(b) that where a husband falsely accuses his wife of adultery with an intention to create her evil reputation, she can sue him on the ground of cruelty.

In the case of Zaffar Hussain v. Ummat-ur-Rahman, the plaintiff’s wife alleged that her husband declared before several persons that she had an adulterous relationship with her brother. Thus, the court held that if a Muslim woman is falsely accused of adultery and she can plead for divorce on that ground. But the wife cannot file a divorce if the allegation of adultery is true.

Adultery as a ground for divorce under Christian Law

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 the 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 bystating 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 Actallows 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.

 

The Special Marriage Act, 1954

The Special Marriage Act 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, and 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.

 

Court Precedents

Earnest John White vs Mrs. Kathleen Olive White and Others (AIR 1958 SC 441):

In this case, the husband filed a decree of divorce on the grounds of adultery. The trial court granted the divorce decree, but the high court reversed the judgement of the high court. The case went on appeal to the Supreme Court. The question before the Supreme Court, in this case, was whether just an inclination to have sexual intercourse and thereby leading to adultery would arise in this case or not by living in one room as the respondent and the appellant wife stayed in one room for a night. The court held that her conduct as shown by the evidence clearly justifies that she has committed adultery and therefore Supreme Court reversed the order of the high court and thereby granting the decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285):

In this case, the respondent that is the wife filed a petition for divorce seeking judicial separation against her husband. Accordingly, the high court of Karnataka granted a decree for judicial separation and ordered the husband to give maintenance charges to his wife and daughter. But the husband after two years filed a petition for divorce under section 13(1-A) (a)of the Hindu marriage act, 1955 on the ground that there has been no resumption of cohabitation between the parties for more than one year after passing the decree of judicial separation. Hence the question before the Supreme Court was that whether this can be taken as a ground of divorce even after the husband and the wife as in this case are living under the same roof even after the passing of the decree of judicial separation. The court held that husband who continued to live in adultery even after the passing of the decree of judicial separation with his wife will not succeed for a petition of divorce under section 13(1-A) (a).

Condonation of Adultery- The fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would be sufficient to constitute condonation. The husband's condonation of adultery disentitles him to the decree of divorce, even if such condonation is for the sake of the dignity of the family.

 

Evidence required by the court to prove Adultery as a ground of divorce

Adultery is one of the major reasons for getting a divorce and one can easily obtain a divorce on the grounds of infidelity.

What are the valid pieces of evidence for proving of adultery in India?

Not statutory but still these presumptive grounds are accepted by the court to prove adultery.

1.      Circumstantial evidence,

2.      Contracting venereal disease,

3.      Evidence of visit to houses of ill-repute,

4.      Admissions made in previous proceedings,

5.      Confessions and admissions of the parties. Mere suspicion is not sufficient.

Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence. There must be a showing by the prosecutor that the accused party and another named party had sexual relations. Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed to someone else at the time of their relationship.

Evidence that the defendant had the chance to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient to prove guilt. Photographs or testimony of a witness who observed the couple having sexual intercourse is not necessary. The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her.

Letters in which the accused parties have written about their amorous feelings or clandestine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. Character evidence indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman's sexual relationships with men other than the party to the adultery generally cannot be used; however, if her reputation as a prostitute can be demonstrated, it may be offered as evidence.

Suspicious activities and incriminating circumstances may be offered as Circumstantial Evidence.

In India s. 112 of the Evidence Act 1872 lays down that if a person is born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, it shall be the conclusive proof of his legitimacy as a son of that man unless it is proved otherwise. The standard of proof for rebuttal of legitimacy is beyond reasonable doubt and not merely the balance of probability.

In Goutam Kundu v State of West Bengal, the Supreme Court has laid down the propositions of law as to the permissibility of blood test to prove paternity which is as follows:

1.          The courts in India cannot order blood test as a matter of course.

2.          Whenever applications are made for such prayer in order to have a roving inquiry, the prayer for blood test cannot be entertained.

3.          There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under s. 112 of the Evidence Act.

4.          The Court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

5.          No one can be compelled to give a sample of blood for analysis.


Different types of Evidences

With today’s heavy influence on technology, more and more people use text messages and email their preferred methods of communication. During a contested divorce, it is sometimes necessary to provide evidence that supports an individual case for abuse or other negative actions. Under certain circumstances, it is possible to use text messages as supporting evidence during the proceedings.In order for a text message to be usable in a divorce case, it must be authenticated. To authenticate a text message, the other party must readily admit to the text, a witness must attest that he or she saw the message being created, or reply authentication must be demonstrated. Hearsay is an issue that must be addressed before a text message can be admitted to a divorce case. A text message can only be used in court if it fits a hearsay exception.


Hotel Cases- Where the adultery is alleged to have been committed in a hotel or a boarding house with an unknown person, the court views such case with suspicion. There is a need in some cases for the petitioner to prove the background of an adulterous association. The court makes a finding of adultery where a hotel bill is produced and a witness from the hotel is called to say that the respondent and a person of the opposite sex were in the bedroom together.


Adultery After Petition: Ante-Nuptial Intercourse- A petition for divorce on the ground of adultery should be based on adultery committed prior to the presentation of the petition. But evidence of acts of adultery subsequent to the filing of the petition is admissible for the purpose of drawing inference by the court about the course of conduct of the respondent. But there may be necessary to file a supplementary petition incorporating those subsequent acts of adultery. The general rule is that it is not permissible to plead ante-nuptial intercourse, because it is said that marriage operates as oblivion to all that has passed. But ante-nuptial intercourse may be pleaded where adultery is charged with the same person with whom ante-nuptial intercourse took place. Cohabitation between the spouses prior to the marriage is relevant in relation to ancillary relief. This suggests that other relations prior to the marriage with other persons may likewise be relevant to the facts of a particular case.

The Supreme Court ruled that a DNA test can be ordered by courts as a legitimate and scientifically perfect tool to establish adultery in divorce cases which was a significant shift from the age-old legal convention that prioritized a child's legitimacy in marriage over a divorce being sought on the ground of infidelity by a partner,

The DNA tests are now being often ordered by courts for determination of paternity but allowing such scientific examinations for deciding upon the issue of infidelity too tends to move away from legal precedents.

In the case of Ravinder Yadav vs Padmini Payal, the High Court of Punjab & Haryana while deciding a divorce petition under Section 13 of the Hindu Marriage Act noted that to prove cogent adultery evidence is required and that ordinary wear and tear in married life does not lead to divorce.

The Court stated "…. As a matter of fact, adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with an adulterer has caused mental cruelty to the respondent".

 

Private detective agencies

Substantial evidences are required to establish adultery at the time of filing for a divorce on grounds of the same. The aggrieved party is required to gather compelling evidence backing their case to prove adultery by the spouse. This can be achieved with the help of a detective agency which may assemble information and photographs that may help the aggrieved party to justify their spouse’s adulterous act. The evidences must relate to places and dates where the adulterous party and co-respondent may have privately met.

Private Detective Agencies handles private investigations and inquiry in cases related to divorce, insurance or criminal cases for the specific individual or group. At present, it is not obligatory for them to be registered or have a license so as to operate in India since there is no law till now to regulate the activities of Private detective agencies as well as the private detectors hired by them. However, bill to provide a system of licensing for such Agencies and to regulate their conduct has been introduced as Private Detective Agencies (Regulation) Bill, 2007 but is still pending in the parliament.

 

Are Private Investigating Agencies legal in India?

In India, the Private Investigation agencies are Legal, but there is no law to regulate the conduct of such agencies. Government hardly have any control over these agencies. They are free to operate in India without any restrictions because of the absence of any law to regulate them.

The Private Detective Regulation Bill, 2007 is still pending in the Parliament. The proposed bill seeks to bring the Private Detective Agencies within the scope of Legal ambit in order to prevent the Agencies from getting involved in illegal activities like terrorism, etc.

 

Does the Evidence found by a Private Detective have an Evidentiary Value in the Court of Law?

As the demand of hiring the private detective is increasing particularly, in some sensitive and sensational cases, the question which arises in the mind of people is whether the evidence found by Private Detective has any evidentiary value in the court of law or not? In General terms, the Evidence collected by the Private Detectives is admissible in the Court of Law. Such evidence helps the judges in reaching a decision. But the Evidence so gathered by the Private Detectives need to fulfil certain requirements which are: -

1.      The Private Detective Agency hiring such Private Detectives must be having Licence to operate in India;

2.      The Evidence must have been legally obtained;

3.      Such Evidence has been obtained without violating any procedure of Law.

4.      It Should not violate the people’s right to privacy.

P v. Mrs P & Mr. - In this case, it was held that a very high degree of probability of evidence is required to prove adultery or cruelty. Therefore, while accepting the evidence of Private Detective, due diligence and necessary care must be shown by Judges and the parties.

 

Conclusion

 

Adultery had 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 the 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 a divorce, including the presence of children. Delay in filing of the 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, and also the economic status of the parties.

The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate  having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of  the Supreme Court and High Courts in different Law Journals.  From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .

Author :

Kishan Dutt Kalaskar

Advocate (Retired Judge)

No.74, 1st Floor, 6th Cross,

Malleswaram,

Bengaluru-560003

kalaskarnetra@gmail.com

Mob: 9686971935

www.kishanretiredjudge.com

 

 

 

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