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.”

According to Section 13(1)(i) of the Hindu Marriage Act, 1955, the essential element of adultery are

1. There should be an act of sexual intercourse outside the marriage, and
2. That such intercourse should be voluntary.

Section 497 of the Indian Penal Code defines adultery: “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 intercourse not amounting to the offence of rape is guilty of the offence of adultery”.

Thus 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 the former’s marriage. If the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, a divorce or judicial separation petition can be filed.

Under Section 10 of Hindu Marriage Act, 1955, even a single or isolated act of adultery will entitle other party to seek judicial separation from his partner. Before the enactment of the Marriage Laws (amendments), 1976, adultery was treated as the conduct of grave immorality. It was a thing of grave shame irrespective of the gender, however, it wasn’t a ground for divorce.  Before passing of the Marriage Laws (Amendment) Act 1976, in order to obtain a divorce on this ground, the petitioner had to prove that the other party was living in adultery which would cover more or less continuous and habitual course of action. An isolated act of immorality was not sufficient. But after the passing of the Act of 1976, even a single and isolated act of infidelity would be a sufficient ground to obtain a divorce.

The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The burden of proof, in cases of adultery always lies on the petitioner. The offence of adultery must be proved beyond a reasonable doubt. Adultery, as a rule, is proved by, based upon any one or more proofs as below —

• Circumstantial evidence
• Evidence of non-access and birth of children
• Contracting of venereal diseases
• Evidence of visits to houses of ill repute
• Decrees and admissions of parties which should generally be corroborated
• The sexual intercourse was willingly indulged into by the respondents.
• The actual penetration need not be proved it can be proved by a preponderance of probabilities.

In Patta Dhanalakshmi v. Patta Ramachandra Rao, AIR 1998 AP 341 case, the wife was living in her parent’s house and became pregnant without resumption of cohabitation. She averred that the husband used to visit her and stayed in the nights. But she failed to examine her parents or any other person to support her version. In these circumstances, the court granted a divorce on the ground of adultery.

In Swapna Ghose v. Sadananda Ghose, AIR 1979 Cal 1 case, the wife found her husband and the adulteress to be lying on the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife. The Court held that this is sufficient evidence of adultery.

In Sita Devi v. Gopal Sharan, AIR 1928 Pat 37 case, the Court opined that the fact of the matter is that direct proof of adultery is very rare. Even when the direct proof of adultery is produced, the court would look upon it with suspicion, as it is very highly improbable that any person could be a witness of such acts which are, by their very nature, performed in utmost secrecy.

In Pushpa Devi v. Radhey Shyam, AIR 1972 Raj 360 case, the Court opined that in both the criminal and matrimonial offence of adultery, proof of marriage is required. Proof of adultery by direct evidence is rare and It would be unreasonable to expect direct evidence of adultery.

In H.T. Veera Reddi v. Kistamma, AIR 1969 Mad 235 case, the Court held that the birth of a child after four hundred and two days of separation from the husband is clear evidence of adultery because no child can be born of the lien of the husband after so long a separation.

In Ammini E.J. v. Union of India, AIR 1995 Ker 252  case, the Kerala High Court held that the husband is in a favorable position with respect to it being a ground for divorce because the wife has to prove adultery along with some other aggravating circumstances and hence it is discriminatory towards the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery, without any other qualifying offence such as cruelty or desertion.

Man and woman observe utmost secrecy about their meetings even when it is lawful. When it is unlawful, they take extra care. This makes direct evidence of adultery extremely difficult.  Therefore, if the law insists on direct evidence, few cases will be proved amongst hundreds and thousands. The result will be that the security of the marital right against ‘adultery’ will be reduced to a nullity. Adultery is proved by circumstantial evidence. If circumstantial evidence of adultery is to be admitted, proof of penetration has to be dispensed with. If the adulterers are proved to be in such juxtaposition or associating in such circumstances that the sexual act may be inferred, the court will usually be satisfied that adultery has occurred.

In Patayee Ammal v. Manickam, AIR 1967 Mad 254 case, the Court held that the nature of adultery is such that direct evidence is not possible.

In Imarta Devi v. Deep Chand (2004)1 HLR 387 case, the Court held that the nature of adultery is such that direct evidence is not possible. Courts therefore expect circumstantial evidence.

In Subbaramma v. Saraswati, AIR 1967 Mad 85 case, the Madras High Court held 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 unrelated person is found alone with a young wife after midnight, in her bedroom in an actual physical juxtaposition, unless there is some explanation forthcoming for this which is compatible with an innocent interpretation, the only interpretation that a court of law can draw must be that two were committing an act of adultery together”.

In Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, AIR 1980 Cal 370,  case, according to the husband, his wife used to visit the house of the co-respondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in favor of the petitioner on merit of the evidence provided, and judicial separation was granted.

In Dr. Ashok Kumar Aggarwal v. Smt. Anju Raje, AIR 2010 (NOC) 442 (P & H) case, the court held that mere suspicion of the husband cannot be a proof of adultery, especially when the husband had not seen wife in the company of any male member, nor he could name anyone, he was not entitled to a divorce.

When 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. Jatinder Nath Kalia, AIR 1996 Del 54 case, the husband after marriage went abroad for studies leaving his two minor daughters and his wife in India. He did not try to take his wife with him and left her. For twenty-three years, they lived apart and the husband contracted a second marriage there. He had three children out of the second marriage. He was thus, guilty of cruelty, desertion and adultery. The wife got divorce, maintenance and compensation for the act of her husband.

If first marriage is considered void and a man marries the second time but continues his sexual relationships with his first wife, then as per Section 13 of Hindu Marriage Act, 1955, the second wife can file and obtain divorce or judicial separation under the Hindu Marriage Act, 1955.

What is not Adultery?

In Dennis v. Dennis, (1955) 2 All E. R. case, the Court held that only sexual intercourse with a person other than his or her spouse constitutes adultery, mere caresses, or other acts of intimacy with any other person does not amount to adultery.

In Barnett v. Barnett (1957) 1 All ER 388  case, the Court held that if a person lacks the mental capacity to consent, such as a minor or person of unsound mind, the intercourse will not be voluntary. Thus, a girl aged 12 years who is, in law, not capable of consenting to sexual intercourse, cannot be guilty of adultery.

In Goshawk v. Gushawk (1965) 109 SJ 290 case, the Court held that a woman who had been administered drinks and thus got drunk and then had a sexual act, is not guilty of adultery. But if has got drunk voluntarily, with the knowledge that it is likely to inflame her passions, she would be guilty of adultery if she indulges in sexual intercourse, even if at the time of the act, she was so drunk as to be incapable of giving her consent. In Benton v. Benton 1958 P 12 case, the Court held that the same principle would apply to taking of drugs.

If the wife can establish that she was raped by the co-respondent, then the husband would not be entitled to a divorce. Further, in a petition for dissolution of marriage, it is not necessary to prove that the co-respondent had knowledge or reason to believe that the respondent was the wife or husband of the petitioner. If the wife is raped, she is not guilty of adultery. It is a complete defence to the charge of adultery if the respondent’s wife was raped.

It seems difficult for a man to establish that he was forced. But if he can establish that in fact he was forced, the court would not grant the relief to the wife.

Sexual intercourse contemplated by the clause is an intercourse with a third person, i.e., non-spouse. Thus, intercourse with the wives of pre-Act polygamous marriage will not amount to extra-marital intercourse.

In many cases reported before the courts, where the spouse may have committed the act of suicide in response to the act of adultery by his or her spouse , the court does not consider it to be an act of cruelty and is only considered as an instance when one of the partners failed to discharge the marital obligations. 

Provisions Under Indian Penal Code:

The offence of adultery is punishable under Section 497 of the Indian Penal Code. The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of the offence, not even as an abettor. In the matrimonial court, when a petition is filed for the matrimonial relief of divorce or judicial separation on the ground of adultery, the main relief is sought against the spouse and not against the adulterer. The adulterer or the adulteress is made merely a co-respondent, and that too is not always necessary.

Under the Section of the IPC, the person committing adultery shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery. It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. While Section 497 of the IPC doesn’t recognize a woman as an aggrieved party in the case of adultery.

The petition was filed by non-resident Keralite, Joseph Shine, who challenged the constitutionality of IPC Section 497 read with Section 198(2) of the Criminal Procedure Code (CrPc). The CrPc Section 182(2) deals with prosecution for offences against marriages. The Supreme Court on August 2, said, “The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, the wife can be subjected to someone else’s desire. That’s not Indian morality.” The Court opined that Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence. Thus Section 497 is scrapped.

Conclusion

Adultery has always been discouraged throughout the history of mankind. In India, till 1976, a petition for divorce on the grounds of adultery could be filed only when the spouse was “living in adultery”, but now a petition can be filed on the grounds of adultery even when there has been only on instance of voluntary sexual intercourse outside the marriage.

Indian Legal System > Civil Laws > Family Laws > Grounds for Obtaining Decree of Divorce or Judicial Separation > Adultery (Extra-Marital Sex)

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