ADULTERY AS A GROUND OF DIVORCE
Adultery is extra marital sex. It is consensual sexual intercourse between a married person and a person of the opposite sex not being the other spouse, during the subsistence of marriage. Adultery means nothing else than sexual relations unallowed by marriage. Personal laws all around the world condemn adultery and it is considered as a ground for divorce or separation. Even the Hindu Shastric laws which made no provisions for divorce, condemned adultery in unequivocal terms. Under the present Indian personal laws, adultery is laid down as one of the grounds for divorce or judicial separation.
The essential ingredients in an offence of adultery are that:
- There should be an act of sexual intercourse outside the marriage, and
- That such intercourse should be voluntary.
VOLUNTARY SEXUAL INTERCOURSE
The sexual intercourse by either of the spouses with a person other than his or her spouse must be a voluntary act. If one of the spouses is raped it cannot be said that there is voluntary Intercourse. An attempt to commit adultery does not amount to adultery. Mere love letters cannot establish the guilt of extra marital sex. If there is an involuntary sexual act with a person other than his or her spouse, the section is not attracted. Thus a spouse is not guilty of adultery if the act is committed under intoxication or unconsciousness or by force or fraud. Also, if a woman mistakes another man to be her husband and willingly commits act, she is not guilty of adultery.
After the solemnization of marriage- To constitute a ground for decree of divorce, the sexual intercourse complained must have taken place after the solemnization of marriage with the petitioner. Pre- marriage unchastity of the wife or pre-marriage sexual relation of the husband with some other woman is not a ground of divorce. Before 1976 Amendment Act, the petitioner had to prove that the other party was living in adultery for a continuous period. Now, even if there is a single sexual lapse on the part of the spouse after the solemnization of marriage, it is a ground for divorce.
NATURE AND BURDEN OF PROOF
Proof of adultery by direct evidence is rare and is not necessary. The circumstantial evidence is enough. The decree of proof need not reach certainly but it must carry a high degree of probability. The fact that a married woman has been absenting herself from her house for 4-6 days at a stretch and has been seen more than once with a total stranger leads to an irresistible conclusion that she had committed adultery. Mere admission of the respondent in cross examination is not enough to prove adultery.
In Rajeev v. Baburao, where a married man contracts a bigamous marriage after the commencement of the act his first wife can file a petition for divorce under this provision. This is because the second marriage is void and its consummation amounts to extramarital sex.
In Veena Kalia v. Dr. Jatindra Nath Gupta, wherein the husband after marriage went abroad for studies leaving his two minor daughters and his wife in India. He did not manage to bring his wife with him and left her. For 23 years they lived apart and the husband contracted a second marriage there. He had three children out of second marriage. He was thus guilty of cruelty, desertion and adultery. The wife got divorce on these grounds and the husband was ordered to pay her maintenance of Rs. 10,000 per month.
The Madras High Court set aside an order of the lower court wherein on the allegation of adultery of the wife divorce was sought. The court held that mere allegations by the husband without details were not sufficient to prove adultery. The husband alleged that on three occasions he saw his wife talking with other persons. No physical contact was alleged and all this happened during the daytime when all the three grown-up children of the petitioner were less treated as a member of that family. Even the witness did not speak of living separately. Moreover the husband permitted his two grown up daughters to live with his wife. Since the order of divorce, the High Court held, was based on assumptions and surmises it was liable to be set aside.
As far as the burden of proof is concerned, adultery can be proven by a preponderance of probability, like any other basis for divorce; but it has been said that in proportion, as the crime is significant, the facts should be clear. The Supreme Court ruled in Dastane v. Dastane that the expression “satisfied” in section 23 of the Act would mean satisfied with a preponderance of probability and not satisfied beyond a reasonable doubt.” The rider placed on adultery by the words ‘is living’ in section 13 (l) I of the Hindu Marriage Act makes it very difficult for the innocent spouse to get a divorce decree, and this requirement has proven to be too serious for many injured spouses. It can be claimed that the innocent party can get a judicial separation decree and can get a divorce decree under the ‘two-year rule’ as embodied in section 13 (1A).
The Court held that one single act of adultery was sufficient for divorce or judicial separation in Subbaramma v. Saraswati. In the same case the court also held that in this country and especially in village areas, unwritten taboos and rules of social morality must necessarily be taken into account.” If an unknown person is found alone in an actual physical juxtaposition with a young woman after midnight in her bedroom, unless an explanation is offered that is compatible with an innocent view, the only inference that the Court can draw must be that the two have committed an act of adultery together.
Throughout the mankind’s history, adultery has always been discouraged. In India, until 1976, it was only when the partner was “living in adultery” that a petition for divorce on the grounds of adultery could be filed, but now a petition can be filed on the grounds of adultery even when there was only voluntary sexual intercourse outside the marriage. The courts took a severe view of adultery and granted the contested divorce in India, taking into account the different social conditions and circumstances of the party seeking divorce, including the presence of children. The delay in petition filing, especially when children are involved, is taken lightly. For all cases related to adultery, there is no steadfast law which can be widely used. The court has the power, on its own merits and demerits, to handle each case. This could include children, society, familial considerations and even the parties’ economic status.
Author: Ishita Agrawal,
B.A.LL.B. 3rd year, Himachal Pradesh National Law University Shimla