Under matrimonial offenses, adultery is regarded as the most common ground. Under Shastri law, adultery was condemned even though divorce was not recognized. Adultery is an act where a married person is having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Sexual intercourse must be a voluntary act, a spouse is not guilty of adultery if the act is committed under intoxication or by force or fraud, or unconsciousness. An attempt to commit adultery does not amount to adultery.
Adultery is defined under Section 497 of Indian Penal Code, 1860, which says – “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.”
Adultery has been considered as a ground for divorce under the Hindu marriage act 1955, under Indian Divorce Act 1869, under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988). Adultery is considered a crime of secrecy and darkness; therefore, direct evidence of sexual intercourse may not be necessary. Adultery can be proved from circumstantial evidence as well. For example, if a man/woman stays at a hotel with another person who is not their spouse, then it can infer as adultery.
Adultery As A Ground For Divorce
Section 13 (1) (i) of the Hindu Marriage Act, 1955 reads adultery as “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, ‘after the solemnization of the marriage, had ‘voluntary sexual intercourse with any person other than his or her spouse.
Under Section 13, it is mentioned that sexual intercourse must be voluntary. If an act is non-voluntary or without consent, then it does not amount to adultery. The sexual intercourse between two married persons of the opposite sex not being husband and wife to each other under intoxication or by fraud or by force does not amount to adultery. Also, if a woman mistakenly thinks another man to be her husband and willfully commits the act, she will not be guilty of adultery.
What Constitutes Adultery?
When there is an act of sexual intercourse between a man and a woman who is not husband and wife but both are married to different persons, then it is said that adultery is constituted. In the case of Changamunga v. Lianpuri, three main ingredients of adultery were discussed. Those three essential ingredients are as follows:
- The act should be voluntary
- The person should be legally married
- The sexual act or intercourse should be done with a person other than the adulterer’s spouse.
Essential elements that constitute adultery under Section 497 of Indian Penal Code, 1860 are as follows:
- To have sexual intercourse with a person.
- The man committing the offence must know or must have reason to believe that the concerned woman is the wife of some other person.
- The person has committed sexual intercourse without the consent of the husband of the woman.
- Such sexual intercourse must not be amounting to rape that is the woman with whom the act is committed must be above 16 years of age
If all the above essentials are satisfied, then the person is guilty of adultery under Section 497 of the Indian Penal Code, 1860.
Instances Of Adultery
In the following cases the plea of adultery is upheld by the court:
- If the wife had been absenting from the house and is seen in the company of some stranger without any reasonable explanation.
- If any unrelated person is found alone with his wife after midnight in her bedroom in actual physical juxtaposition.
- If any child is born beyond the period of twelve months after the cessation of marital consortium between the spouses.
- If the act of adultery is mentioned in any letter
- If the wife was residing at her parent’s house and became pregnant without her husband’s access to her.
- Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
- A solitary instance of voluntary sexual intercourse by a wife with another person is enough.
Condonation Of Adultery
Section 23(1)(b) of the Hindu Marriage Act, 1955, says that if the petitioner has been accessory or connives or condones the guilt of erring spouse then the petition fails. Where a husband (or wife) continues to live with another spouse alleged to have committed adultery even after discovering the fact, then condonation is presumed. It would be repugnant to decency and good sense to allow a husband to say that he had sexual intercourse with his wife and yet did not forgive her because he did not intend to remit the wrong done to him; he would be thereby approbating and reprobating the marriage. The petition of divorce filed by a husband cannot be accepted if he condones the adulterous act of wife even for the sake of the dignity of his family.
Legal Provision Dealing With Adultery
The Hindu Marriage Act, 1955
Adultery is defined under Section 13(1)(i) as voluntary sexual intercourse with any person other than his or her spouse. The two essential ingredients of adultery are as follows:
- An act of sexual intercourse should be outside the marriage.
- Sexual intercourse should be voluntary.
The court in a lot of cases have mentioned that the act of adultery has to be proved beyond a reasonable doubt.
The Marriage Laws (Amendment) Act, 1976
The Marriage Laws (Amendment) Act, 1976 passed and made the ground for divorce and judicial separation common. This amendment made the grounds for divorce and judicial separation the same, and it was marked as a significant development in the category of Hindu Personal law.
The Special Marriage Act, 1954
Adultery is a valid ground for divorce under the Special Marriage Act, 1954. Under the act adultery is a separate offence, and it does not need to be presented with any other offence to file a petition for divorce or judicial separation.
Decriminalization Of Adultery
In Joseph Shine vs Union of India, 2018, five-judge bench struck down section 497 of the Indian Penal Code, 1860 along with section 198(2) of the Criminal Procedure Code, 1973 as unconstitutional. The Chief Justice of India Deepak Mishra and Justice Khanwilkar said: “We declare section 497 of the Indian Penal Code, 1860 and section 198(2) of the Criminal Procedure Code,1973 dealing with the prosecution of offences against marriage as unconstitutional.”
Justice D.Y. Chandrachud said “control sexuality of woman hits the autonomy and dignity of woman”. When husband and wife marry, the wife has not given up on her sexual freedom on her sexuality, she can explore sexuality outside the marriage, since at the time of marriage or even afterward the wife does not lose her freedom, her control over her sexuality, and section 497 of the Indian Penal Code, 1860, deprives a woman over the sexuality of her sexual freedom it goes against the concept of privacy and dignity under Article 21 of the Constitution of India.
The offence of adultery only considers the husband as an aggrieved party if his wife commits sexual intercourse with another man but the adultery law does not consider a wife as an aggrieved party if her husband commits sexual intercourse with another woman. The provision is discriminatory and therefore, violative of Article 15(1) of the Constitution of India. Article 21 of the Indian Constitution deals with the protection of life and personal liberty and Section 497 of the Indian Penal Code, 1860 treats a woman as personal property of the husband since it goes against the dignity of the woman and is, therefore, unconstitutional.
Comparative Analysis With Other Nations
Different countries have different enactments and provisions dealing with adultery. In the United Kingdom, the act of adultery is defined as a spouse having sexual intercourse with another person of the opposite sex and the petitioner finds it intolerable to live with the spouse. Adultery can be used as a basis for a divorce petition irrespective of whether the spouse is living together or has separated. There are a lot of countries where adultery is still not considered as a ground for divorce.
In China, if a couple is willing to divorce, they can go to the government office or civil affairs for the same. Whereas in Australia, the only ground for divorce is an irretrievable breakdown of marriage, evidenced by a twelve-month separation.
In the United States of America, those people who commit sexual intercourse with someone other than their spouse are held liable for adultery which means if the husband commits sexual intercourse with another woman, then he is held liable and if the wife commits sexual intercourse with another man, then she is also held liable. In France, if a wife commits sexual intercourse with any person other than her husband, then she is held liable for adultery. However, the husband may pat to end her sentence by forgiving her and agree to take her back. In Pakistan, both men and women are held guilty if they commit adultery and punishment may extend to the death sentence.
Rajeev vs Baburao, 1996
In this case, it was held that if a man contracts a bigamous marriage after the commencement of the Hindu Marriage Act, 1955, his wife can file a petition for divorce under this provision. The second marriage is considered void and its consummation amounts to extramarital sex.
Subbarama Reddiar vs Saraswathi Ammal, 1966
In this case, the court held that one single act of adultery is enough for divorce. The court in this judgement also said that “the unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unknown person is found alone with a young woman after midnight, in her apartment, in an actual physical juxtaposition, unless an excuse is given which is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together”.
Elam Plakkat Mathew Alias Joly vs Mulam Kothrayil Kochurani Ali, 1997
In this case, the court held that adultery is found out after the solemnization of the marriage. Which can also be termed as a post-marriage lapse. If a person was in an adulterous relationship before marriage and concealed that fact from the spouse, then it will be a case of fraud, not adultery.
Hemamalini vs A. Pankajanabham & Anr., 1994
In this case, the court held that adultery should be proved strictly by very cogent, convincing, and acceptable evidence. The charge of cruelty need not be proved by any direct evidence or beyond reasonable doubt and what is required is the satisfaction of the court on a preponderance of probabilities.
Dhedu Sheoram vs Mst. Malhanbai Dhedu, 1965
In this case, 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. But the court held that 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.
Recent Case Laws
Ravinder Yadav vs Padmani, 2019
In this case, the court held adultery as a ground for divorce cannot be considered without impleading the alleged adulterer. The court said that there was no intentional cessation of cohabitation on the part of the wife nor there is any intention to desert the husband.
Mohandas Panicker vs Dakshayani, 2013
In this case, the court held that in matrimonial disputes, adultery can be proved by a preponderance of probabilities. Matrimonial cases are civil proceedings and the court can act upon the preponderance of probabilities, especially in adultery cases.
Before the Hindu Marriage Act, 1955, there was no mention of divorce. This act brought a revolutionary and dynamic change in society. Adultery has always been discouraged throughout the history of mankind but now people can file a petition for the decree of divorce on the ground of adultery. The Indian judiciary has passed many judgements where direct evidence was missing. As adultery is an act of secrecy and darkness, circumstantial evidence is enough to prove adultery. The court has the discretion to treat each case on its own merits and demerits as each is different from the other and the facts may vary from case to case.
Frequently Asked Questions (FAQs)
What kind of evidence do you need to prove adultery?
To prove adultery via circumstantial evidence, one must show that the adulterous spouse had both the “disposition” to commit adultery and the “opportunity” to do so.
Can you get alimony if you commit adultery?
A man does not have to pay his former wife and her child maintenance if adultery is established.
Can cell phone records prove adultery in India?
The family court can accept such a recording as evidence of adultery as a telephonic recording is a piece of valid evidence as per the Information Technology Act.
Does adultery have to be physical?
Most cases of adultery are not proven with physical evidence, as the other spouse would have to be caught in the act. However, a spouse can still use circumstantial evidence to prove that the cheating spouse is engaged in infidelity.
What are some examples of adultery?
The unfaithfulness of a married person to the marriage bed; sexual intercourse by a married man with other women other than his wife, or voluntary sexual intercourse by a married woman with another man other than his husband.
What is considered infidelity by law?
It is a voluntary relationship established between a married individual and someone who is not the individual’s married partner without the partner knowing.
What is the current status of the offence of adultery in India?
In September 2018, the apex court declared section 497 of the Indian Penal Code, 1860, that makes adultery a punishable offence for men – unconstitutional and struck it down.