Adultery as a Ground of Divorce in India

Adultery as a Ground of Divorce in India

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Last Updated: Apr 10, 2024

Adultery is described as a married individual having sexual relations with a person of the opposite gender who is not the person's wife or husband. Adultery is punishable by law worldwide, and it is a reason for divorce or separation. Also the Hindu Shastric laws, which did not allow for divorce, were clear in their condemnation of adultery. Adultery is one of the reasons for divorce or judicial separation under the current Indian personal laws.

No Intimacy Grounds for Divorce in India

Indian courts, including the Hon’ble Supreme Court have passed judgments over time stating that no intimacy between partners can be seen as a legitimate ground for divorce.

A Bench consisting of Justice Ruma Pal and Justice AR Lakshmanan said in 2006, "The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of special value when the cruelty consists of not violent acts but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and loathing for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause,”

Draft Petition for Divorce On Grounds Of Adultery

A divorce petition for adultery should be based on adultery that occurred previous to the filing of the petition. However, proof of acts of adultery committed after the petition was filed is admissible for the court to draw inferences regarding the respondent's pattern of conduct. However, it may be necessary to file a separate petition to include the later acts of adultery. Because marriage is believed to work as oblivion to all that has gone before, it is not permitted to allege ante-nuptial relations as a general rule. When adultery is committed with the same person with whom ante-nuptial intercourse occurred, however, ante-nuptial intercourse may be alleged.

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Divorce On Grounds Of Adultery

The spouse who wishes to submit a divorce petition must back up his or her claims with evidence. Adultery must be proven beyond a reasonable doubt, as the Indian courts have often stated. However, in recent years, the SC has been seen to depart from such concepts, declaring that proving beyond a reasonable doubt is required in criminal trials, but not in civil proceedings.

Adultery is defined as the act of having consensual sexual intercourse with someone who is not the respondent's spouse, according to Section 13(1) of the Hindu Marriage Act, 1955. As a result, the petitioner must establish that she or he was married to the respondent and the respondent had voluntary sexual intercourse with someone other than him or her.Adultery was considered a grave immoral act before the Marriage Laws of 1976 were enacted. It was a source of great humiliation for both men and women, but it wasn't grounds for divorce. The grounds for judicial separation and divorce have remained the same since the 1976 Amendment, representing a significant advancement in Hindu personal law.

People Also Read This: Grounds of Divorce for Husband in India

Case- Ammini E.J. v. Union of India, The Kerala High Court ruled that the husband is in a better position in terms of it being a foundation for divorce because the wife must establish adultery together with other aggravating factors, and thus it is unfair to the wife.

The Dissolution of Muslim Marriages Act of 1939, states in Section 2(viii) (b) that a woman can sue a man for cruelty if he leads an infamous life or mixes with women of poor reputation. This is the closest the Islamic law gets to the notion of adultery.

Case- Zaffar Hussain v. Ummat-ur-Rahman, The plaintiff's wife claimed that her husband had told various people that she had illicit relations with her brother. The court decided that if a Muslim woman is wrongfully accused of adultery, she has the right to divorce. However, if the charge of adultery is accurate, the woman cannot file for divorce under Islam, although a suit can be filed in the case of an irregular marriage.

The Indian Christian Marriage Act establishes a dual divorce procedure in India. The couple must first acquire an annulment from the Church, after which they may petition the court for a divorce judgment. On the other hand, the wife would have to prove the existence of other grounds in addition to adultery, such as cruelty, change of religion, insanity, and so on. In contrast, the husband merely will have to prove that his wife had committed an adulterous act. However, under Section 11 of the Act, the adulterer must be named a co-respondent.

Case- Pragati Varghese vs. Cyril George Varghese, The Bombay High Court commented that this places undue stress on the wife and is unfair, and that adultery can be used as a separate reason. The Kerala High Court ruled in Ammini E.J. v. Union of India that requiring a Christian woman to establish cruelty or desertion combined with adultery violatesArticle 21 of the Indian Constitution.

Adultery is recognised by the Special Marriage Act of 1954, which stipulates that if the responder has had voluntary sexual intercourse with anybody other than their spouse after the solemnization of the marriage, it is a valid reason for divorce. The Act recognises adultery as a crime in and of itself; hence no other crime must be shown to get a divorce or judicial separation judgment. Under the Special Marriages Act of 1954, the current position on the idea of burden of proof was also eased.

Case- Sari v. Kalyan, Adultery can be proved by preponderance of evidence rather than beyond a reasonable doubt since prima facie proof of the act of adultery may not exist and circumstantial evidence will have to suffice.

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