Adultery As A Ground For Divorce

Adultery means sexual intercourse[1], which is voluntary[2] in nature, between the spouse of a person and some third person, who is not his/her spouse and such intercourse should take place during the subsistence of a valid marriage[3]. Thus, adultery consists of voluntary sexual intercourse but this sexual intercourse does not have to be necessarily complete.[4]  Adultery can also be used as a defense, by the husband, against the wife’s suit for maintenance. It is also one of the main grounds for matrimonial relief.[5] Moreover, single act of adultery is enough to constitute a matrimonial offence.[6] Earlier, adultery was treated as a criminal offense in India. After the passing of the Joseph Shine judgement[7], section 497 of the Indian Penal Code was struck down as unconstitutional, adultery was decriminalized and adultery laws in the country have become progressive, providing both women and men equal rights, treating both of them as the aggrieved parties and women are no longer considered as the property of men.[8]

Adultery and Personal laws

Personal laws, all over the world, condemn adultery. Adultery is considered as a ground for divorce under differed personal laws. Different provisions of each personal law deal with adultery as a ground for divorce. Hindu Marriage Act, 1955[9] , Indian Christian Marriages Act, 1872[10], Special Marriage Act, 1954[11] , Parsi Marriage and Divorce Act, 1936[12], Indian Divorce Act, 1869[13],  although there wordings are different, all treat adultery as a ground for divorce since this is an offence which brings misery in the life of the spouse who has been cheated on by his/her partner.

Hindu law

Section 13 (1)(i)[14] and Section 10 of Hindu Marriage Act, 1955[15]  treat adultery as a valid ground for divorce and judicial separation respectively. Sexual intercourse is a necessary condition for the offence of adultery, although complete penetration is not required.[16] Today, a single instance of voluntary intercourse is considered enough for adultery to be committed.[17] However, it is to be noted that before the amendment of 1976, a single act of adultery was only a ground for judicial separation and not of divorce. For divorce proceedings, it was necessary to prove that the spouse was “living in adultery”.[18]

Direct evidence is difficult to procure since adultery is committed behind the doors and therefore, it is not a necessary condition to prove adultery under Hindu law.[19] Adultery is a civil offence and therefore to prove “beyond reasonable doubt” is not necessary because that is a requirement of criminal cases. Supreme Court has held that in cases where personal relations are involved, especially that of husband and wife, “proof beyond reasonable doubt” is not required and “preponderance of probabilities” is sufficient to prove the offence.[20]

Further, according to this act, if a spouse condones the act of his adulterous partner by continuing to live with him after the offence has been committed, he can not later claim relief under this act.[21] Adultery is not only a ground for divorce but also can be taken up as defense by husband in case of plea of maintenance by wife under Hindu Adoption and Maintenance Act, 1956.[22] Moreover, under this law, conduct prior to marriage is not taken cognizance of and lapse post marriage is only considered.[23]

Muslim Law

The Dissolution of Muslim Marriage Act, 1939[24] does not specifically talk about adultery as an offense. Although Section 2(viii)(b)[25] which mentions grounds for cruelty, can be inferred to recognize adultery as a ground for divorce. According to this section, if a husband “associates himself with a woman of ill repute”, the wife can file for divorce against her husband on grounds of cruelty.[26] Under the Islamic law, according to Shariat Act,1937, section 2, if a man accuses his wife of adultery, she can file for divorce if the man does not take back his statement.[27] Although the wife can file the suit only if the statement is untrue and the wife is not guilty of adultery.[28] However, a Muslim man has the right to divorce his wife if he can prove that his wife is an adulterous relationship. Further, Muslim law has no provision for judicial separation on grounds of adultery.

Christian Law

The law which governs Christian divorce proceedings is covered under Indian Divorce Act 1869[29] and the Indian Christian Marriages Act, 1872.[30]. Section 10 (1) (i) of the Divorce Act of 1869 provides for divorce on grounds adultery[31]. Before the amendment, according to ICM, the wife to claim divorce on grounds of adultery had to prove, along with adultery, some other offence like cruelty, conversion or insanity, etc. However, the husband only needed to prove that his wife was in adulterous relationship.

However, courts have acknowledged that the requirement for Christian women to prove some other offense like cruelty or desertion, in addition to adultery, to obtain divorce on grounds of adultery is violative of their fundamental right under Article 21 of the Indian Constitution.[32] They consider that women should be allowed to file for divorce with adultery as an independent ground.[33]

Moreover, according to section 11 of this act, the adulterator has to be involved as a co-respondent in the proceedings.[34] Section 22 of IDA provides for judicial separation on grounds of adultery[35].

Parsi Law

Parsi law provides for divorce by reason of adultery, under Section 32(d) and Section 34 (d) of Parsi Marriage and Divorce Act, 1936.[36] However, the limitation period to file for divorce provided under this law is 2 years.[37] Under this law, facts and circumstances of the case can create the “presumption of adultery” and thus, adultery can also be proven on these grounds.[38]

Special Marriage Act

Special marriage act is used to register the marriage between the couples of two different religion or those who do not wish to register their marriage under their personal laws. It identifies adultery as a divorce ground in accordance with the provisions of Section 27(a).[39]The clause provided for in the provision is similar to the law laid down in the Hindu Marriage Act. This Act has accepted adultery in itself as an offense, and no additional wrong doing should be established in order to obtain a divorce or separation order from the courts. It has already been reported that adultery can be proven by a dominance of proof and need not be established beyond reasonable doubt since the direct evidence may not be available.[40]

Thus, all personal laws, though in their own different wordings, talk about adultery as a ground for divorce.

Adultery and the concept of AID

Artificial Insemination Donor is a process in which the sperm of a person, other than the husband is introduced inside the wife’s uterus.[41] Although under the English law, if AID is availed by the woman without her husband’s consent, it does not amount to adultery.[42] The women’s husband is automatically presumed to be the father of the child born through this process.[43] However, there is debate regarding this law and it was suggested that adopting AID, without husband’s consents should be treated as adultery but this suggestion was not incorporated in the act governing the same.[44] There is no clear law in India regarding AID. Therefore, there can arise a problem in a situation where the husband does not accept the baby born out of AID as his child.[45]

Burden of Proof

Adultery is a serious matrimonial offence which is committed secretly. It is an “offence of darkness” and therefore providing absolute proof of sexual intercourse between the spouse and the other person may not be possible.[46] In most cases, direct evidence is difficult to find. In fact, there have been cases where proofs have been rejected because they were too direct and the court considered them as “made up evidences”.[47] Such direct evidence creates suspicion and the courts view them with disfavour.

Since direct proof of adultery is difficult to find, a heavy burden of proof lies on the person who is alleging adultery. The burden is heavy, more so, because the allegation of adultery is very serious in nature.[48] Proper care has to be taken regarding the evidence in cases of adultery and only those evidences need to be taken in account which are coherent, indelicate and consistent, as remarked by Syed Shah Mohammad Qudri.[49] Further, Andhra Pradesh High Court had rightly pointed out that casting aspersions against married women’s chastity is even more dangerous, as it would hurt women’s credibility, even more than in a man’s case.[50]

Clear evidence is required to prove adultery and mere allegations are not sufficient to create an assumption that adultery was committed.[51] Evidence should be concrete and not statements like “twice or thrice I have seen that person drop my spouse at the street corner.”[52] In case of such an allegation, improbability of procuring an evidence cannot be taken up as an excuse.[53] Moreover, even if the suspicion is very strong, it can not be treated as a substitute for evidence in such sensitive matters.[54]

Thus, the burden to prove adultery is on the person who alleges it and he has to prove it by preponderance of probabilities. Adultery is proved by presumptive proof which is calculated on circumstantial evidence. [55]

Adultery can be proved based on the following evidences-

• circumstantial evidence,
• evidence of non access and child birth,
• evidence of contracting venereal diseases,
• evidence of brothel visits,
• admissions and confessions.[56]

Aforementioned evidences have been discussed below.

• Weightage of circumstantial evidence

Since it is improbable and not reasonable to procure direct evidence of adultery, which is a dark crime, circumstantial evidence can be taken into account to prove adultery. It has not been laid down that what circumstances would prove adultery[57] but it may be inferred from “proof of inclination, association and opportunity.”[58] The court should be convinced that the circumstances point towards necessary conclusion of the offence of adultery.[59] Although the court can consider circumstantial evidence to prove adultery but unless such an evidence is strong enough to point toward the commission of an adulterous act, adultery cannot be inferred.[60] Thus, the circumstantial evidence to prove adultery, must have a high degree of probability so that an ordinary, reasonable man can judge by it the conclusion of adulterous act.

• Hotel bill and register

The evidence of stay in hotel, backed up by the hotel bill and entry register is often provided as an evidence to prove the offence of adultery but such an evidence is not treated very strongly by the court unless there is some previous background evidence which reflect towards adulterous relations.

The court was not convinced of adultery with the presence of the only evidence of hotel bill, entry register and a waiter as the witness of stay.[61] On the other hand the court was convinced that adultery had been committed by the husband who had a love affair with a women, other than his wife, and the stay was not a mere plan to let his wife initiate divorce against him.[62]

• Non access and birth of child

A wife can be charged with adultery in case it is proved that she has given birth to a child of whom her husband cannot be the father of.[63] When the two spouses are no longer together and their last cohabitation prove that the husband cannot be father of the wife’s child, the wife’s adulterous act can be proved.[64]

When a child was born 402 days after separation of the spouses, it was proof that the child could have been born only through wife’s sexual intercourse with someone except for her husband.[65] According to the section 112 of the Indian Evidence Act[66], the assumption of legitimacy is greatly favoured by law and therefore, the evidence of non access should be satisfactory and effective.[67] Access establishes the chances of marital intercourse to take place. Circumstantial evidence can be used to establish whether there could have been or not any opportunity to have intercourse.[68]

Further when the child is born during the duration of valid marriage, the child can not be said to be born out of illegitimate relationship of the wife, unless the husband can prove that the couple had no access to each other when the child could have been begotten.[69]

Although blood test can be a very good way of determining the paternity of the child, but a tender child can not be subjected to such a test.[70] Moreover, blood test can not be compelled by anybody.[71]

• Visits to Brothel

A presumption about adultery can be created if a married man or a married woman, knowingly visits a brothel, considering the nature of such brothel houses and this evidence can only be refuted with clearest proof.[72] However, the fact that the repute of the husband is bad or that he knows the address of prostitutes does not make adultery probable.[73]

• Contracting Venereal Diseases

If a husband or a wife contracts a venereal disease and that is not contracted through the other spouse, then it is a strong evidence towards the offense of adultery.[74] However, this can be denied and refuted by the respondent basing his claim on medical reports that he has not contracted any such disease [75]. He can even prove through medical reports that although he is suffering from the disease but he has contracted the disease innocently, or by himself but not through adultery.[76] But in all these cases the evidence of the physician who examines and makes the report of the respondent will be mandatory.[77]

• Admission and confession

There is no absolute law as to which admission or confession will be accepted to establish adultery. It totally depends on the facts and the circumstances of the cases. Generally, the court is reluctant to accept the uncorroborated confessions[78] but it may accept such admissions if it is satisfied by the same. In a particular case, the court accepted that the wife was guilty of committing adultery based on the evidence that the wife admitted orally to her husband and through letters that showed association of the wife with a man. This was accepted as strong evidence towards charging her as guilty of the offense because she stood by her words, through the entire proceedings even though she had everything to lose.[79]

Adulterer must be joined as co-respondent

“It is mandatory that the adulterer should be involved and impleaded as co-respondent in the case of adultery. “This rule is present as a public policy in order to hinder collusion as well as assassination of character.” [80] Further, Section 11 of the IDA provides for the mandatory inclusion of the adulterer as respondent in the case.[81]

Co-adulterer is mandated to be a party to the proceeding. In case of failure in joinder of the adulterer, the courts can not proceed with the proceedings of the case.[82]”

CONCLUSION

Adultery is a civil offence committed not only during the duration of marriage but also against one’s spouse. It is a wrong that brings in sorrow to the life of the other spouse. Therefore, adultery is condemned under both Indian laws and English law. The person whose spouse has committed adultery has the relief of filing for divorce or demand judicial separation.  Personal laws of the respective religions also provide for adultery as a ground for divorce.

The laws related to adultery have come a long way ahead. Due to passing of the Joseph Shine judgement, the women can no longer be treated as “the chattel of the husband”. It also paved way to treating both women and men as the aggrieved party in cases relating to adultery. The decriminalization of adultery, has brought laws relating to adultery in consonance with the rest of the countries in the world.

Adultery rightly remains as a ground for divorce, and thus, provides relief to the spouses who are not forced to remain together in an unhappy marriage.

[1] “Gitabai v. Fattoo, AIR 1966 MP 130.

[2] “Santakumar v. Sadershan (2006) 2 KLT 13.

[3] “Pullikottial Chera v. Mary Zechariah AIR 1981 MP 112.

[4]   Dennis v. Dennis (1955) 2 All ER 5.

[5]   professor kusum, kumud desai’s indian law of marriage and divorce (10th ed., 2017).

[6]   Id.

[7]  Joseph Shine v. Union of India, Plaint filed by Joseph Shine, W.P. (Crl.) No. 194/2017 (S.C.).

[8]  Id.

[9] Hindu Marriage Act, 1955.

[10] Indian Christian Marriages Act, 1872.

[11] Special Marriage Act, 1954.

[12] Parsi Marriage and Divorce Act, 1936.

[13] Indian Divorce Act, 1869.

[14] Hindu Marriage Act, 1955, §13(1)(i).

[15] Hindu Marriage Act, 1955, §10.

[16] Supra at 4.

[17] Anita v. A. K. Rathore HLR 2000 MP 588.

[18] Supra at 5.

[19] paras diwan, law of marriage and divorce, 145 (6th ed., 2011).

[20] Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 Bom 312.

[21]  Santoshi Devi and Madhuri Devi v. Sadanand Das Goswami, (2004) 2 JCR 194.

[22] Hindu Adoption and Maintenance Act, 1956.

[23] Ira Das v. Ramesh Ranjan Malik, AIR 2003 Ori 62.

[24] Dissolution of Muslim Marriage Act, 1939.

[25] Dissoultion of Muslim Marriage Act, 1939, §2(viii)(b).

[26] Id.

[27] Shariat Act, 1937, §2.

[28] Tufail Ahmad v. Jamila Khatun, AIR 1962 All 570.

[29] Indian Divorce Act, 1869.

[30] Indian Christian Marriages Act, 1872.

[31] Indian Divorce Act, 1869, §10(1)(i).

[32] Ammini E.J. v. Union of India, AIR 1995 Ker 252.

[33] Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom 349.

[34] Indian Christian Marriages Act, 1872, §11.

[35] Indian Divorce Act, 1869, §22.

[36] Parsi Marriage and Divorce Act, 1936, §32(d) and §34(d).

[37] Id.

[38] Meherbai v. Hormasji (1908) 10 BOMLr 1019.

[39] Special Marriage Act, 1954, §27(a).

[40] Sari v. Kalyan, AIR 1980 Cal 374.

[41] https://www.medicinenet.com/script/main/art.asp?articlekey=6986.

[42] Mac Lennan v. Mac Lennan 1958 S.C. 105.

[43] Human Fertilization and Embroyology Act, 1990, §28.

[44] Paras diwan, law of marriage & divorce, (6th ed., 2011) at 383.

[45] Asutosh Mookherjee, marriage, separation, divorce and maintainance, (5th ed., 2015).

[46] “Kiran Robinson v. Ajit Malcolm Robinson, (2002) 2 Del DMC 462, ¶13.

[47] “P. Ammal v. Manickam, AIR 1967 Mad 254.

[48] “Kailash Devi v. Jai Kishan, (2004) 138 PLR 537.

[49] “S. Mallaiah v. Eister (1995) 1 DMC 179, ¶6.

[50] “M.V. Ramana v. M. Peddiraju, AIR 2000 AP 328, at 330.

[51] “Arun Kumar v. Meenu Kumari, (2007) 2 Del DMC 820.

[52] “Arokia Rah Morais v. Mabia Bibia Rani Morais, (2007) 2 Mad DMC 209.

[53] “Pushpa Dutt Misra v. Archana Misra, AIR 1992 MP 260.

[54] “K.C. Chenchamma v. O. George, (1989) 1 MP DMC 371.

[55]  Supra at 5.

[56] Id.,50.

[57] Rabindra Prasad v. Sita Devi, AIR 1986 Pat 128.

[58] Patrick Donald Stracey v. Eileen, AIR 1937 Ass 66.

[59] Rajendra Agarwal v. Sharda Devi, AIR 1993 MP 142.

[60] Pushpa Devi v. Radhey Sham, AIR 1972 Raj 260.

[61] Raspin v. Raspin (1953) 2 All ER 349.

[62] Supra at 45.

[63] Ronal Lawrence Perreira v. Flory Perreira (1994) 2 DMC 618.

[64] Watson v. Watson (1953) 2 All ER 1013.

[65] Vira Reddy v. Kistamma, AIR 1969 Mad 235.

[66] Indian Evidence Act, 1872, §112.

[67] Supra at 44.

[68] Om Prakash v. Smt. Roshani, AIR 1985 P&H 364.

[69] Ram Sewak v. Ruspa Devi (1983), All LJ 1290.

[70] Venkatachalam v. Anandha Jothi & Rasathi (1998) 1 Mad DMC 454.

[71] Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295.

[72] England v. England (1952) 2 All ER 784.

[73] Henderson v. Henderson, AIR 1970 Mad 104.

[74] Gleen v. Gleen (1900) 17 TLR 62.

[75] Anthony v. Anthony (1919) 35 TLR 559.

[76] Butler v. Butler (1917) P 244

[77] Ramsdale v. Ramsdale (1945) 173 LT 393.

[78] Leena Pande v. Sachendra Kumar Pande, AIR 1994 MP 205, ¶7.

[79] Collins v. Collins & Deal (1916) 33 TLR 123.

[80] Shikha Singh v. Dina Chakraborty, AIR 1982 Cal 370.

[81] Indian Divorce Act, 1869, §11.

[82] Ram Kumar v. Smt. Rekha (2003) 1 PLR 707.

 

• Author: Sakshi Sharma
• Intern at Lawportal
• Email: sakshisharma1399@gmail.com

Author: Sakshi Sharma,
NUJS(1st year)