Adultery is seen differently under different aspects of law. However, for the purposes of family law, adultery in simple words is when a married man or a woman has sexual intercourse with another person of the opposite sex other than the spouse during the course of the marriage.
In this essay, I will be dealing with adultery as a matrimonial offence in the various religions prevalent in India i.e. Hinduism, Islam, Christianity, Judaism and Zoroastrianism. Buddhists are governed under Hindu laws only. Adultery is a ground for divorce under all personal laws and the Special Marriage Act[i]. It is also a ground for judicial separation.
Section 13 (1) (i) of the Hindu Marriage Act, 1955 describes adultery as “Any marriage solemnised, 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 solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”
While earlier, a single act of adultery was a valid ground for the relief of judicial separation, for a decree of divorce to be granted, the other party had to be ‘living in adultery’. This changed with the 1976 amendment under the Marriage Laws(Amendment) Act, 1976. Now, a single act of adultery is a valid cause for divorce[ii].
What should be kept in mind is that sexual intercourse is a very essential criterion for being guilty of the offence of adultery. Anything short of sexual intercourse does not amount to adultery, a brief amount of penetration at the very least is essential[iii]. It should also be borne in mind that such sexual act needs to be consensual and voluntary.
It has been said that to prove adultery, two elements are necessary to be proved, those being the intention to be adulterous, and the opportunity to gratify such an intention[iv].
It should be noted that direct evidence of adultery is very difficult to adduce in a case of adultery, and hence, is not required[v]. The Orissa High Court in a judgment[vi] had held that the circumstances should be such, that if regarded together, they lead to an irresistible conclusion of commission of adultery. In Subbramma v Saraswathi[vii], the Madras High Court held that if an unrelated person is found along with a young wife, after midnight in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that, which is compatible with an innocent interpretation, the inference that a court of law can draw is that the two must be committing an act of adultery together.
The burden of proof in cases of adultery always lies on the petitioner. It is their responsibility and duty to show the court that the respondent has been guilty of adultery. In the landmark case of Bipin Chander v Prabhawati,[viii] the Supreme Court had held that the fact that the respondent is guilty of adultery has to be proven beyond reasonable doubt. It should be noted that this case was a very long time ago, and with amendments brought about in the statute, the modern law holds differently. The offence of adultery need not be proved beyond reasonable doubt and can now be proved by preponderance of evidence[ix]. The Supreme Court[x] has also reiterated the point that that the concept of proof beyond reasonable doubt is only to be applied to criminal cases and not to civil matters and certainly not to matters where personal relationships such as husband and wife are involved. This is also ascertained by the leading case of Dastane v Dastane.[xi]
If the petitioner has condoned the acts of the adulterous respondent, after which the respondent has not committed any further acts of adultery, the petitioner does not have a valid case against the respondent[xii]. If the petitioner continues to live with the respondent after the respondent having committed adultery, it is presumed that the respondent has been condoned[xiii].
It is also said that the alleged person the respondent has committed the offence of adultery with should be impleaded as a party to the suit. But a failure to do this, cannot allow the court to dispose the suit off without giving an opportunity to the parties to present their case[xiv]. However the Andhra Pradesh High Court[xv] has ruled to the contrary. Where a husband failed to implead the adulterer as a co-respondent, his petition was rejected.
Section 10 of the same Act allows for an application for judicial separation on the same grounds for divorce as mentioned in Section 13. Hence, adultery is a ground for judicial separation as well. A single act of adultery is enough to grant judicial separation, but not enough to deny maintenance under section 125 CrPC[xvi].
Where the statute does not contain any provision of adultery as a ground for divorce under Muslim law, Section 2(viii)(b) of the Muslim Marriages Act says that if a man associates with women of evil repute or leads an infamous life, it amounts to cruelty to the wife, and he can sue her. This can be equated with adultery[xvii]. Obviously, in this case, cruelty would amount to mental cruelty and not physical cruelty. In Kalim Uz Zafar Shaikh Hasan v Razia Kalim Shaikh[xviii], the court had held that the term cruelty can be interpreted widely so as to include mental and physical cruelty.
The concept of Lian is prevalent in Islamic laws. Though it is not very popular in india, it brings forward an interesting concept. Where a man accuses his wife of adultery, the wife can bring a claim for dissolution of marriage against the husband. Of course, if the husband retracts such statements, the wife’s claim no longer exists[xix]. This, however, has gained recognition in India under Section 2 of the Shariat Act, 1937, [xx] the Allahabad High court[xxi] had gone further to clarify that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty.
In another ruling, the Allahabad High Court[xxii] held that where a man himself committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.
Judicial separation is not recognised by the principles of Islam[xxiii].
Section 10(1)(i) of The Divorce Act of 1869 (as amended in 2001) reads, “Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.” This has however evolved over a period of time. Earlier, only a Christian man could file for divorce on the grounds of adultery. For a Christian woman to file for adultery, it either had to be incestuous or coupled with other grounds like desertion or cruelty.[xxiv]
This change was brought about by the landmark case of Ammim v Union of India[xxv]. A special bench of the Kerala High Court held that the ground of adultery was way more favourable to men than to the wife as she not only has to prove adultery but also has to prove another ground. Such discrimination is purely on the basis of sex and hence, violates Article 15 of the Constitution. The court held that since the words “coupled with” are several and liable, it should be struck down as it is ultravires the constitution.
The definition of adultery in family law is quite broad. When a married person has voluntary sexual intercourse with any person who is not their spouse, it means he has commited adultery. Thus, when a woman is raped, it does not come under the ambit of adulterty, and neither do pre-marital relationships fall under this category.[xxvi]
Section 11 of the same act requires the adulterer to be pleaded as co-respondent. This is a mandatory statutory requirement with only three exceptions:
1.The respondent is leading the life of a prostitute and the petitioner does not know with whom the adultery has been committed.
2.The petitioner is not aware of the name of the adulterer though efforts have been made.
3.The adulterer is dead.
In fact, the Gauhati High Court[xxvii] refused to confirm the decree of divorce on grounds of adultery being accepted by the respondent upon failure to comply with this requirement.
Section 22 of the said act also allows for judicial separation on the grounds of adultery, cruelty or desertion. Adultery of the husband in this Act includes adultery with any woman, married or unmarried[xxviii]. In the case of Prem Prakash Rubin v Sarla Rubin[xxix], the husband alleged adultery, cruelty and desertion on the wife. Though the husband had filed for divorce, the court granted him a decree of judicial separation.
Section 32(d) of the Parsi Marriage and Divorce Act, 1936 allows any married person to sue for divorce if the spouse has committed adultery, fornication, bigamy, rape or any unnatural offence. The section also places a limitation period of two years from the point where the petitioner came to know of such an adulterous relationship.
As the section itself words it, when a married person has sexual intercourse with either a married person or an unmarried person, this section is attracted.
Section 34(d) of the same Act grants the right of a married person to sue his/her spouse on the grounds of adultery, fornication, bigamy, rape or any other unnatural offence. This section too, has the limitation clause of two years.
In the case of Meherbai v Hormasji[xxx], it was held that though the plaintiff’s act could not be construed to be adulterous with any particular individual, but the facts and circumstances can lead to a strong presumption that the plaintiff was generally upto mischief of adultery and hence, the charge of adultery was proved against the petitioner.
There is no statutory law of marriage and divorce applicable to Jewish relationships in india. It is the customary code of law that is applied.[xxxi]
Ancient Jewish law did not recognise a man’s infidelity as a crime, but recognised only a woman’s infidelity. However, modern law treats them as essentially one and the same.[xxxii]
A Jewish couple may decide to end their marriage through mutual consent. A man may also file for divorce if his wife commits adultery, and even on strong suspicion of her having been adulterous among other things. One of the grounds under which a wife is entitled to get a decree of divorce is if the husband’s “notorious dissoluteness of morals,” which again, could be inferred as adultery.
The High Court of Bombay[xxxiii] had held that the grounds in Jewish law on which a Jewish wife can obtain divorce from her husband can be enumerated and husband’s cruelty and adultery are two of these grounds. In Jewish law, adultery was not only a matrimonial offence but also a crime, the punishment for which was death by stoning. The same Court in another ruling[xxxiv] had held that a Jew marrying for the second time will constitute of adultery.
It has also been said that there is no legal impediment in the granting of judicial separation on the grounds of adultery[xxxv].
As it has been discussed in this essay, personal laws are becoming more progressive and these laws have evolved a lot over the period of time. One glaring aspect is essentially the absence of adultery theoretically, in Islamic law. In this day and age, unfortunately, adultery and infidelity are societal challenges we cannot escape from.
In light of this, laws must be fully developed and equipped to provide justice to the estranged spouse, irrespective of gender, caste or religion. The legislature should consider unifying personal laws at least to the extent that it protects the basic rights of individuals equally. Most importantly, awareness must be created and people must be educated about the law so as to enable them to fight for their rights against the cheating spouse!