Adultery as a ground of Divorce in India

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This article was written by  Aakanksha Mishra, a student of Institute of Law Nirma University, Ahmedabad.

Adultery is a voluntary sexual connection between two persons of opposite sex who are not married to each other but of whom one at least is married to a third person. Adultery is a ground for divorce under Hindu marriage act 1955, under the Indian Divorce Act 1869, Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988)

In Black’s law dictionary[2] “it is defined as voluntary sexual intercourse of a married person with the person other than the offender’s husband or wife, or by a person with a person who is married to someone else”.

In ordinary sense Adultery is sexual intercourse of a married person with one of the opposite sex other than the spouse. Since it is a crime of darkness and secrecy, direct proof of commission of sexual intercourse may not be possible. Sometimes such direct proof creates suspicion. Adultery can be inferred from circumstances. When a man or woman stays at a hotel with another man or woman who is not his/her wife or husband, adultery may be inferred. As the maxim goes, they do not sing their prayers.[3]

Adultery is one of the principal grounds for matrimonial relief.

As per section 13(1) (i) of HMA both husband and wife are liable for the offense of adultery means if wife makes sexual relations with other than his husband then, husband can file case against his wife or if the husband makes sexual relation other than his wife then, wife can file case against her husband. One act of adultery is enough to constitute a matrimonial offence. . A single act of Adultery constitutes the ground.[4] An attempt to commit adultery must be distinguished from adultery and will not have itself be a sufficient ground for judicial separation

Adultery and living in Adultery: Under the present Indian matrimonial statues one act of adultery is enough to constitute a ground of divorce. Under the original Hindu marriage act the ground was living in adultery. Living in adultery means a continuous course of adulterous relationship as distinguished from one or two lapses from virtue. It has been defined to mean “a course of adulterous conduct over some period with repetition of acts of adultery with one or more persons. Through several case laws the court has established a well settle principle for the act of Adultery and granting divorce on such basis.

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Champa Gawri v Jamnadas[5] in this case the court said that voluntary sexual acts may result in a decree for judicial separation.

Suresh Prasad Sharma v smt. Rama Bai sharma[6] When the petitioner husband had illicit relations with another lady before marriage then petitioner himself is supposed to be at fault and responsible for respondent/wife living separately and hence petitioner/husband cannot be permitted to take advantage of his own wrong and not entitled to decree of dissolution of marriage.

Kiran Robinson v Ajeet Malcolm Robinson[7] the court held that however having regard to the facts and circumstances of each case, a pragmatic view ought to be taken.

Nandlal v Shankari [8] the husband pleaded that he was under detention in judicial custody at all times when the child could have been begotten by his wife and that on this ground alone the charge of adultery by the wife should succeed. However the facts and circumstances showed that the wife used to visit the jail regularly. As Now a day’s nothing was impossible and so sexual intercourse between the spouses during such visit could not be ruled out. Consequently, the allegations about adultery could not succeed.

Dennis v Dennis[9] the court in this case asserted that “Adultery strictly speaking consists of sexual intercourse by one party to the marriage with some person other than the opposite party. Strictly speaking there has to be some sexual penetration though not necessarily a complete sexual act. Mere indecent behaviour is not enough though intensity thereof would be a pointer or indicator as to whether the adultery took place at some other point of time”.

Woolf v Woolf [10]Since people are seldom, if ever; seen in the act of adultery the court necessarily has to depend on circumstantial evidence. For instance if two persons of opposite sex are found inside a closed room or in a bed in compromising position or living at a place as husband and wife, that would suggest or lend support to the presumption that adultery was practiced.

      

Adultery as Criminal and Matrimonial offence

Under Indian law adultery is both matrimonial offense under Hindu marriage Act 1955 which provides divorce as a relief in such cases, and criminal offense under Indian Penal Code. It is not in all countries that adultery is a criminal offence. In some countries, like England, it is merely a civil wrong; the aggrieved person is entitled to claim damages. But the matrimonial offence of adultery or the fault ground of adultery is recognized in most of the countries. Even under the Shastric Hindu Law, where divorce had not been recognized, Adultery was condemned in most unequivocal terms. Besides being matrimonial offence adultery is also a penal offence sec. 497 of the Indian penal code lay down:

“whoever has a sexual intercourse with a person who is and whom he has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with the imprisonment of wither descriptive term which may extent to five years, or with fine or both. In such cases the wife shall not be punishable as an abettor.” [11]

The adulterer need not know whose wife the woman is, provided that he knows that she is a married woman, ingredients of adultery under the Indian Penal code are as follows–

• The accused had sexual intercourse with a woman
• That woman was married at that time
• The accused knew or had reason to believe that such woman was the wife of some other man
• There was no consent or connivance of the husband of that woman
• Such sexual intercourse did not amount to rape.

The scope and exact contents of criminal offence of adultery vary from country and country. Adultery may be committed by the wife or the husband. But in all countries the degrees of guilt or the nature of offences is not the same. Even the nature of the relief is not similar. In some countries the wife or the husband is as much guilty of the offence as the third person with whose co-operation the offence is committed. But in India it is not so, the complainant husband can only vindicate himself if he can establish the requirement given under 497 of Indian Penal Code, otherwise his complaint would fail.

Adultery as a matrimonial offence

It is in this aspect that the matrimonial offence of adultery is different from the criminal offence. In the matrimonial court when a person accuses his spouse of adultery his or her main target is not the adulterer or adulteress, but the wife or the husband. It is alleged that since the respondent is guilty of the matrimonial offence of adultery, the petitioner is entitled to relief against him or her. The adulterer or the adulteress is made merely a co- respondent, and that too is not always necessary.

Since both under penal law and matrimonial law, adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. It is also essential to establish to establish in the matrimonial offence of adultery is that the sexual intercourse was willingly indulged into by the respondents. If the wife can establish that she was raped by the co-respondent, then the husband would not be entitled to divorce.

Further in a petition for the dissolution of marriage it is not necessary, nor is it material, 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 respondent had intercourse with the co-respondent with the full knowledge that he or she was not the husband or wife, then the petitioner would be entitled to the relief. But if the wife can prove that she was incapable of understanding the nature of the sexual act of adultery, the court would refuse a decree. If a person has intercourse with a married woman by personating to be her husband, then, the matrimonial offence of adultery is*not*committed, and the petitioner would not be entitled to divorce. 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 relief to the wife.[12]

 Direct and circumstantial evidence

In both the criminal and matrimonial offence of adultery proof of marriage is required

No direct proof of adultery is necessary. If the adulterous 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 the adultery has occurred.

In Swapna ghose v Sadanand ghose[13] the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact matters that direct proof of adultery is very rare.

The offence of Adultery is proved by:

• Circumstantial evidence
• By evidence as to non access and birth of child
• Contracting veneral disease
• By evidence of visits to brothels
• Confession and admissions of parties
• Preponderance of probability

It is not necessary that there should be direct evidence of adultery as it is not easily available. It has also been stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however be sufficient strong and conclusive.

In Virupaxi v Sarojani[14] it was held that to urge the ground of Adultery after eight years is fatal to the petition for divorce on ground of Adultery

Samraj v Abraham[15] the court in this case asserted that Proof of adultery and adultery is an act of sexual intercourse between a married woman with another married or unmarried person.

Jyotish Chandra v Heera Guha[16] It should be proved beyond reasonable doubt. A mere production of letters exchanged would not be enough in the absence of inrepocracity

A.R Bhardwaj v Arila Bhardwaj[17] In case of adultery against wife the onus shifts on husband to prove it but where parties are living together after knowledge of misdeeds of wife it shall be presumed that the offence has been condoned by the husband.

Lella pandey v Sachendra Pandey[18] Divorce cannot be granted on ground of adultery even though a child was shown to have been born to her without any contact with her husband continuously for a period of more than one year. Voluntary sexual intercourse with a stranger must be proved

Philips v Emperor[19] That is why the court looks with disfavour upon such direct evidence as it is highly improbable that a person could ordinarily be a witness to such acts which are generally performed with utmost secrecy.

Pattayee v Manikkam Gounder[20] Circumstantial in most of the case regarding adultery the circumstantial evidence is all that can be normally found. The circumstantial evidence must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery. The circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.

Chandra mohini v Avinash Prasad[21] The mere fact that some male relation writes love letter to a married woman does not necessarily prove that there was any illicit relationship between the writer of the letter and the married woman who receives them.

Sadhu Amma v J. Satyanrayan[22] The mere fact of having been found in the company of another person is not sufficient to infer an act of adultery or sexual intercourse. Certain circumstances lead to the irresistible conclusion that adultery was committed for example sharing a room.

In Gower v Gower[23]wife moved about with a married man living apart from his own wife and at various places they were known as husband and wife. At one address the landlord knew the wife as the wife of that person and that wife occupied the same bedroom with that man, so it was proved beyond all reasonable doubt that the wife had committed adultery.

In Gibbs v Gibbs the court observed that when a man and a woman were found together under suspicious circumstances it could not be presumed that they were saying their prayers.

Woolf v Woolf [24] Where an alleged adulterer occupies a room at night with a woman not his wife the court must usually infer that the adultery was committed in the absence of evidence tending to negative the inference.

1. Hemamalini v A. Pankajan bham[25] If the evidence adduced in support of adultery found to be self-contradictory unsatisfactory or unnatural the same would not be acceptable.

Rabindra prased v Sita devi[26] It is not possible to lay down a rule of thumb as to what circumstances would be sufficient to establish a Adultery but The circumstances certainly should be such as to lead a guarded judgment of a reasonable and just man to the conclusion.

• Although circumstantial evidence is sufficient to prove the charge of Adultery.

In Parvati v Shiv Ram V.K Malhotra CJ said that circumstantial evidence should be such that it should lead only to one inference i.e. the respondent has committed adultery. The mere fact that the wife was seen in the company of the alleged adulterer or that whenever the husband went to the village of the wife she was not there would not be sufficient to draw inference of adultery. In our submission, these observations are correct except that after Dastane v Dastane, desertion cruelty adultery and other grounds need not to be proved beyond reasonable doubt. They can be proved by balance of probabilities or by preponderance of probability.

False allegation of Adultery

In the case of Smt Sadhana srivastava v. Arivind kumar Srivastava[27] The allegation of adultery and extra marital affair was not a result of emotional outburst but were made in the pleadings before a court of law. These allegations were repeated in the oral statement by the wife as well as by his brother. Though the issue framed by trial court in this regard was sought to be not pressed by the wife and no evidence was led to prove the same. Nevertheless the allegations were made, were serious in nature and merely by not pressing the issue on the point would not lose their impact and were there on the record of the case. Unfounded allegations of adultery made against the wife though not pressed during the proceedings have been held by the apex court to be cruel conducted by the husband entailing the wife to seek relief of divorce.

1. Siddagangappa v. R. Shailaja The position of law is well settled that levelling disgusting accusation of unchaste and indecent familiarity with a person outside the wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation status as well as the health of the wife. The aspersion of infidelity attributed to the wife, an educated woman, would amount to insult, adding to injury of the worst kind, sufficient to substantiate cruelty. The allegation of the husband in the claim petition adverted to by the family court while recording the finding that they tantamount to cruelty by the husband to the wife cannot be said to be preserve.

In the case of Jai Dayal v Shakuntala Devi[28] The appellant has levelled disgusting allegation of un-chastity and indecent familiarity of the respondent with different persons outside wedlock and her having extramarital relations with other persons. These themselves, will amount to cruelty.

Saroj V Vinod Kumar Tanwar[29]in this case wife alleged that her husband was living in adultery with widow of his deceased brother. No evidence led by her in support thereof, such serious allegation without any proof would actually amount to cruelty to husband. Since wife had deserted him and both parties were residing separately and not making any offers for reconciliation. Order granting decree for divorce does not require interference.

Mahila ramjanki v Pavan Sharma[30]  it has been found proved from the evidence on record, that the wife was suspecting illicit connection of husband with his Bhabhi. Admittedly, allegations were not raised as specific plea in the written statement nor the allegations were proved by any evidence, therefore, the allegations are certainly false to the knowledge of wife and therefore, very well amount to cruelty also on their part. The husband is entitled for decree of Divorce.

Shivakumar  v Premavathi[31]It is well establish general principal that if any imputation against the character of any spouse is alleged without any foundation such reckless and baseless allegations of illicit relationship amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to stay away from the other. The appellant by reason of conduct on his part made it unbearable for the respondent-wife with reasonable self respect to stay with him. So it is the appellant who is really responsible for the breakdown of the marriage.

D.N Sharma v Usha Sharma[32]Unfounded allegations of adultery against wife were serious allegations amounting to cruelty and entitles the wife to seek relief against the husband under the act or otherwise.

Paras Ram v Kamlesh[33]It is well settled legal position that a false allegation of adultery against a spouse amounts to cruelty in the eye of law. However, it would be a far cry to inter there from that an allegation of adultery, whether proved or not, would possibly be the law, that a faculty true allegation of adultery whether made otherwise or in defence in that a written statement would amount to cruelty.

Mukesh Kumar Gupta v Smt Kamini Gupta[34] the law as well settled is that an unreasonable accusation of adultery against spouse by the other spouse amounts to cruelty. However, if it can be shown that the spouse reasonably believes that the other spouse is committing adultery, it may offer him or her good defence. The burden of proving that the allegations are bona fide or reasonable will necessarily be on the spouse making such allegations.

Conclusion

To prove offense of adultery is generally difficult to get divorce in India. Generally direct evidence of adultery not available and usually the circumstantial evidence is sufficient. When a person says that he saw the respondent and adulterer sleeping together in night, it is sufficient proof of adultery. Under both the criminal law and matrimonial law,

Adultery is an offence against marriage and therefore, in both cases it is essential that at the time of the offence a valid marriage was subsisting. To constitute the offence of adultery it is also necessary that the respondent (in the case of criminal offence, the wife) was a consenting party. In short, the sexual intercourse must be consensual. If the respondent did not consent, just as when she was raped, it would not amount to adultery. Sexual intercourse with the respondent, when he, or she is unconscious, or under influence of drug or liquor, will also not amount to adultery. Similarly, sexual intercourse in the belief that the adulterer is his or her spouse will also negate the charge of adultery.

When either the husband or wife files petition of divorce in India or judicial separation on the ground of adultery under Hindu Marriage Act 1955, as per section 24 of this Act the party who has not sufficient source of income can claim maintenance during the pendency of his/her petition of divorce as per divorce laws in India and as per section 25 at the time of passing decree of divorce in India or judicial separation, court can order permanent alimony & maintenance. To give maintenance to the wife is natural obligation of husband but there is provision where husband is not bound to maintain her wife as per divorce laws in India. When it is proved that wife is living in adultery than no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding from her husband, as per section 125(4) of the criminal procedure code which is another provision of divorce laws in India.

References

Books referred .

Mookerjee’s, marriage separation and divorce, Kamal Law House, Kolkata (4^th ed.)(2008)

Sir dinshaw Fardunji Mulla , Mulla Hindu Law, Lexis Nexis New Delhi (21^st ed.)

Sukhdev Singh, Hindu Law of Marriage and Divorce, Universal law Publishing co. Delhi.

Online Databases

www.manupatra.com

www.jstor.com

[2] Black’s law dictionary (6^th Ed.)

[3] Mookerjee’s, Marriage Separation and Divorce, Kamal Law House, Kolkata (4^th Ed.)(2008)

[4] Rajnder v Sarda AIR 1993 MP 142

[5]Champa Gawri v Jamnadas,  1971 APLJ 230.

[6] Suresh Prasad Sharma v smt. Rama Bai sharma, 1999(1) DMC 311 (MP)

[7] Kiran Robinson v Ajeet Malcolm Robinson, (2002)II DMC 462 (Del).

[8] Nandlal v Shankari (2002)II DMC 530

[9] Dennis v Dennis (1955)2 ALL ER 51

[10]Woolf v Woolf , 1931 P 134

[11] Section 497, Indian Penal Code

[12] In Dwarka bai v Nainan AIR 1953 Mad 792

[13] Swapna ghose v Sadanand ghose , AIR 1979 Cal 1.

[14] Virupaxi v Sarojani AIR 1991 Kant 128.

[15] Samraj v Abraham AIR 1970 Mad 434.

[16] Jyotish Chandra v Heera Guha AIR 1970 Cal 66.

[17] A.R Bhardwaj v Arila Bhardwaj AIR 1993 P and H 33.

[18] Lella pandey v Sachendra Pandey AIR 1994 MP 205

[19] Philips v Emperor AIR 1935 Oudh 506

[20] Pattayee v Manikkam Gounder AIR 1967 Mad 254; 1967 CrLJ 900

[21] Chandra mohini v Avinash Prasad , AIR 1967 SC 581

[22] Sadhu Amma v J. Satyanrayan , (1967)1 An WR (Andh-DB)

[23] Gower v Gower , (1950) 1 ALL ER 804

[24]Woolf v Woolf, 1931 P 134.

[25]A. Hemamalini v A. Pankajan bham (1994)3 ALT 30

[26] Rabindra prased v Sita devi AIR 1986 Pat 128

[27]Smt Sadhana srivastava v. Arivind kumar Srivastava AIR 2006 ALL 7

[28] Jai Dayal v Shakuntala Devi, 2004 (2) Bom CJ 55

[29] Saroj V Vinod Kumar Tanwar, AIR 2003 NOC 566 (P&H)

[30] Mahila ramjanki v Pavan Sharma, AIR 2003 MP 281

[31] Shivakumar  v Premavathi, AIR 2004 Kant 146:2004 (1) Kant LJ 194

[32] D.N Sharma v Usha Sharma , 2003(3) Bom CJ 27 (OHC)

[33] Paras Ram v Kamlesh, AIR 1982 Punj 60

[34]Mukesh Kumar Gupta v Smt Kamini Gupta, AIR 1984 Delhi 368