Marriage, being one of the oldest institutions to Humankind, acted as a foundational pillar across cultures and countries, it played a vital role in the success of human beings as a race for centuries. Marriage as an institution is largely successful perhaps due to monogamy as a preferred way of life, barring a few cultures and systems. Section 13, HMA enumerates the grounds of divorce available for both husband and wife as also the grounds of Divorce available only for the wife. This article aims to explain the legal framework related to adultery as a ground of Divorce.

Constitutional challenge to the criminal offence of Cruelty

In 2017, the constitutionality of offence u/s 497, IPC was challenged before the Hon’ble Supreme Court in Joseph Shine vs. Union of India. The Hon’ble Supreme Court held that the offence of adultery is based upon Victorian morality and it emanates from the idea that women are chattel to men. In Joseph Shine vs. Union of India (2019) 3 SCC 39, the offence of adultery was declared as unconstitutional, and thereby, the Hon’ble Supreme Court decriminalized the offence of adultery.

Voluntary sexual intercourse with anybody other than one’s spouse

The marriage under Hindu Marriage Act can be dissolved on the grounds mentioned in Section 13 by a decree of divorce upon a petition presented by husband or wife. This ground prohibits voluntary sexual intercourse outside marriage with any person other than his or her spouse. The legislature in its wisdom through various provisions of Hindu Law enforces monogamy to the institution of marriage as a way of life. Adultery under Section 497, IPC having been declared unconstitutional by the Hon’ble Supreme Court, is still the ground of divorce under Section 13 (1), HMA.

How to prove adultery?

The husband or wife must prove that the other party (husband or wife) got engaged in voluntary sexual intercourse with anybody other than their spouse. Adultery must be proved under Civil Law using the standards of the Indian Evidence Act that can be a preponderance of probabilities (high degree of probability) also.

When confession of adultery is considered as corroborative evidence?

Confessions or admissions of adultery are admissible as part of a charge of adultery when combined with other relevant evidence. Confessions or admissions of adultery, on the other hand, are a type of evidence that, while admissible, is viewed with suspicion by the court and must be scrutinised with zeal. There is a canon of law that states, ‘nex partium confessione fides habeatur,’ which is a strong argument against it. As a general rule, the court will not be satisfied that the charge is founded only on the basis of such a confession or admission unless it is backed up by other evidence. Despite the fact that it is common practice in matrimonial matters not to act or give relief based on an uncorroborated confession or admission of adultery, there is no absolute rule of practice or law prohibiting the court from acting on such uncorroborated evidence. Before awarding relief, the court must be satisfied that the basis for relief has been demonstrated, according to Section 23 of the Act. What the court will insist on is that the charge be proven in accordance with Civil Law principles.

Why long term of gestation and non-access to the spouse are significant in proving adultery?

Non-access and a long gestation time of a child born to the wife may be grounds for an adultery case. The birth of a normally developed child, 360 days after the couples’ last marital intercourse, was the only proof of adultery in a case adjudicated by the House of Lords in England. The court granted the husband’s request for a decree, and the court considered the relevance of medical evidence in the case. Lord Simonds observed that it would be a fantastic suggestion to any ordinary man or woman that a normal child born 360 days after a man and a woman had their last intercourse was the child of that man and that it was repugnant to him that a court of justice should be so out of touch with common human notions that it should require evidence to dispel fantastic suggestions. The issue, according to Lord Simonds and Lord Mac Dermot, was difficult in defining the timeline. The latter stated that there will come a day when, with the passage of time period far in excess of the normal, the court can reasonably decide adultery of the wife under circumstances where there is non-access and a long gestation time.

What is the difference in ‘cruelty’ 125 (4), CrPC and 13 (1) (i)?

The maintenance under 125 is a welfare legislation, otherwise CrPC is a procedural criminal legislation, whereas the Hindu Marriage Act governs the personal law of the marital spouses. If we look at section 125 of the Criminal Procedure Code, specifically section 125(4), it translates that wife shall be entitled to an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if she refuses to live with her husband for no good reason, or if they are living separately by mutual consent.

In contrast to the foregoing provision, the Hindu Marriage Act, 1955 defines adultery as ‘having voluntary sexual intercourse with any individual other than his or her spouse after the solemnization of the marriage.” There is no doubt that section 125 of the Criminal Procedure Code of 1973, as maintained by various rulings, is a provision to offer assistance and avoid destitution and vagrancy, but the same may be stated of matrimonial legislation. CrPC does not address the matrimonial rights of spouses under personal laws.

Several judicial pronouncements under section 125 of the Criminal Procedure Code, 1973, and more specifically section 125(4), have held that the claimant spouse would not be entitled to maintenance if the person was ‘living in adultery’, meaning that the person had engaged in a continuous course of adulterous conduct rather than a stray or single lapse, as interpreted by the courts. This interpretation of adulterous conduct under that statute can only be applied to that statute, and solely for the purpose of filing a claim under that statute.

Adultery is defined under the Hindu Marriage Act as ‘voluntary sexual intercourse’, although the Divorce Act of 1869 simply reads ‘has committed adultery’. Those enactments, understandably, do not explain or enlarge on the number of times or stray incidents, nor on the fact that the person is living in adultery. Adultery is defined in a way that is neither constrained nor limited but recognizes it as such.

Can adultery be condoned?

Yes, it can be condoned by the spouse other than the wrongdoer, but the party who has itself committed adultery cannot condone it. Section 23(B), HMA makes it clear that if adultery is condoned, divorce on this basis becomes impossible.

How can a matrimonial lawyer can help you?

The couples involved in matrimonial disputes are not in a good state of mind to litigate in a personal matter. It is always advised couples seek legal advice from competent matrimonial lawyers in their cities. The best divorce lawyers can provide you with expert guidance on the different aspects related to adultery that can help you to make a correct legal recourse. You can seek legal advice from our matrimonial lawyers at The Law Codes.

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