ADULTERY – GROUNDS FOR DIVORCE IN INDIA
Here for several years the petitioner has been denied the sexual relations despite her advances and requests even during the period both were living under the same roof. Such denial is total negation of one of the most important marital obligations and amounts to cruelty.
Adultery means Sexual intercourse between a married person and a third party. Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent. In the traditional English common law, adultery was a felony. Although the legal definition of “adultery” differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.
Hindu Marriage Act, 1955, Section 13(1)(i) describe Adultery as a ground of divorce but does not describe what is Adultery? Adultery is describe under Section 497 of the Indian Penal Code (IPC), 1860, as an offence and is punishable. Section 497 describes Adultery as under:
Section 497. 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 sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.
Though the statutory provisions of Section 10 of the Indian Divorce Act all for proof of adultery also if the divorce is sought on the ground of cruelty but in view of the view taken by the Special Bench of Kerala High Court in , Ammini E.J. and etc. v. Union of India and others and the Full Bench of Maharashtra in , Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc., it is no more necessary for a party seeking divorce on the ground of cruelty to prove adultery.
This being the position of law the petitioner is even otherwise entitled to decree of divorce on the ground of cruelty though she has also proved successfully the ground of adultery.
According to divorce laws, adultery is voluntary sexual intercourse of a married person with a person other than the offender’s wife or husband. Rayden defines it as “Consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of marriage. It is no more necessary that a person should continue living in adultery. Single act of intercourse constitutes adultery.
Case laws on Adultery –Grounds of Divorce in India.
The Hon’ble Supreme Court after referring to the above Rule held as follows:-
“In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore, be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of S. 14 of the Act.”
- In Manjit Kaur v. Santokh Singh6 1997(1) Hindu Law Reporter 66, the trial Court had decreed the petition of the husband for grant of divorce on the ground that she was living in adultery. This Court held that in such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry and proof and that the act of adultery in its nature is a very secret act and direct proof could not be available in all cases. It was held that proof of actual adultery is not necessary and cir cumstantial evidence which lends to an inference of adultery was sufficient and that the degree of proof need not reach certainty, but it must carry a high degree of probability. It was held that it required that appreciation of evidence in such cases must be careful and proper and only when evidence is cogent, consistent and reliable, the finding of adultery could be recorded but where the evidence was lacking in corroboration and in consistent and unnatural, no finding of adultery could be recorded.
- In the case of Earnest John White v. Mrs. Kathleen Oliva White and Ors..1 AIR 1958 SC 441 which was a case under the Indian Divorce Act,the husband sued his wife for dissolution of marriage on the ground of her adultery between his wife and two other co-respondents. The same was dismissed by the Patna High Court reported in Ear- nist John White v. Mrs. Kathleenm Oliva White and Ors.,2 AIR 1954 Patna 560. The husband in the said case alleged various act of adultery between his wife and other two co-respondents. The allegation of adultery of the wife with one of the respondent was found against the husband which was not challenged. The allegations of adultery be tween the wife and the other respondent were also held to be not proved. In appeal be fore the Hon’ble Supreme Court the husband confined his case to acts of adultery al leged to have been committed at the Central Hotel, Patna where the wife and respondent No, 2 therein were alleged to have resided for three days under assumed names. The wife pleaded that she came to Patna solely with the object of having her tooth extracted and returned to Samastipur, the same day. The Hon’ble Supreme Court referred to the provisions of Section 14 of the Indian Divorce Act which provides:-
“S. 14 “In case the Court is satisfied on the evidence that the case of the petitioner has been proved ”
- a decision of the Supreme Court in N.G. DASTANE v. Mrs. S. DASTANE (AIR 1975 Supreme Court 1534) and contended that in a matter like this, particularly seeking divorce on the ground of adultery, the Court can act on preponderance of probabilities and arrived at a conclusion and need not expect that all the conditions prescribed are to be satisfied beyond a reasonable doubt. There is no dispute that Section 10 of the Act enables the husband to seek for divorce on the ground that since the solemnization of the marriage, the wife has committed adultery.
- In the Matter of Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors It is evident from the Section that as far as the husband is concerned, the only ground on which he can seek dissolution of marriage is adultery. But at the same time it is important to note that he need establish only adultery committed by the wife since solemnisation of the marriage. On the other hand, as far as the wife is concerned, though she has got a number of grounds for seeking dissolution of marriage adultery simpliciter is not a ground for divorce unlike the husband. As far as the wife is concerned, she has to establish not only adultery of her husband but also that the husband is guilty of either ‘incestuous adultery’ or ‘such cruelty as without adultery would have entitled to a divorce mansa et toro’ or ‘desertion without reasonable excuse for two years or upwards’. Thus even if a wife is able to prove that her husband is living in adultery or that he is guilty of treating her with cruelty habitually and persistently or that he has deserted her for ever, she may not be entitled to get dissolution of her marriage with the husband who perpetrates such activities destructive of not only natural love and affection which is the very basis of the institution of the marriage but also of human dignity.
