What
is Adultery and when can it be
proved in Court ?
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
offense of rape, is guilty of the offense of adultery.
According to Hinduism dictionary,” Adultery is sexual
intercourse between a married man and a woman not his wife, or between a
married woman and a man not her husband.”
adultery is, as a general rule, proved by presumptive proof
based upon;
(a) circumstantial evidence;
(b) evidence of non-access and the birth of children;
(c) contracting venereal diseases;
(d) by evidence of visits to house of ill-repute;
(e) decrees and admissions made in previous proceedings; and
(f) confessions and admissions of the parties which should
be generally corroborated though in exceptional circumstances, even if
uncorroborated may be acted upon.
Therefore, it is important to understand that mere bald
allegations by a spouse that his/her partner was having adulterous relationship
with his/her lover after marriage, in absence of any cogent evidence, would not
be sufficient to prove.
What is the Punishment in Indian
Penal Code ?
In India the offence of adultery is punishable under Section
497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only
men having sexual intercourse with the wives of other men without the consent
of their husbands punishable and women cannot be punished even as abettors.
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 rape, 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 not be punishable as an abettor.
What is the Legal Position when refusal to have sexual intercourse by Partner
?
Whether refusal to have sexual
intercourse amounts to cruelty or not depends upon the facts and circumstances
of each case. Sexual intercourse is just one of marital rights. No doubt, the
denial of sexual relations causes frustration and misery to the aggrieved party
and is likely to destroy the fibre of marriage yet reasonable denial on the
part of either party does not constitute cruelty. This aspect of marital
obligation has been dealt with in most elaborate manner in Jacobson vs.
Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a
personal and delicate nature and depends on sentiments and feelings to such an
extent that it would be an intrusion into the privacy of domestic life to
stipulate reasonable denial on the part of either party to submit to marital
intercourse constitutes cruelty. Such denial does not constitute cruelty even
though refusal to have marital sexual relations undermines the essential
structure of a marriage.
What is the definition of adultery in Divorce Laws:
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.
Thus the adultery is to be inferred from circumstances which
must indicate inclination, guilty
intention and opportunity to commit adultery.
Bed room evidence is one of such strong circumstances as way back in 1909 in
Kerr v. Kerr, 114 App. Div. 1421, it was observed that where man and a woman
who are not husband and wife have bed room privacy, there is strong inference
of adultery as they do not sing prayers there.
Delhi High Court
Smt. Linda Constance Edwards vs Shri William Edwards & Anr
Equivalent citations: 2001 IIIAD Delhi 482, 91 (2001) DLT 355, I
(2001) DMC 746, 2001 (58) DRJ 731
ORDER J.D. Kapoor, J.
1. Marriage between the
parties who are Christians took place more than 25 years ago. Its dissolution
has been sought on the ground of cruelty coupled with adultery.
2. It is alleged that right
from day one respondent No.1, i.e. the husband started exhibiting symptoms of
cruelty, apathy and lack of interest towards the petitioner and somehow or
other the petitioner pulled on with the marriage till the year 1978 in the hope
that the respondent No.1 may change. The impression of the petitioner was that
the problems of his character may be due to temperament and not a basic trait
of his character that may be incorrigible or unchangeable. That off and on the
respondent No.1 used to come home fully drunk and indulged in physical
beatings. However, when all efforts failed, the petitioner found that
respondent No.1 was psychologically ill and has maniac traits right from his
childhood and his character is unsuitable for a marital life and so much so the
doctors, psychologists and priests have advised him not to entry into a marital
life but the respondent No.1 played a fraud upon the petitioner and obtained
her consent. In spite of the fact that two children were born to the petitioner
during the three years of their joint stay the respondent No.1 developed hatred
towards her and stopped having intercourse with her and rather spurned and
rejected the advances and offers sometimes fiercely and sometimes in most
hateful manner from 1978 to 1980. It is further alleged that during 1978-1980
respondent No.1 used to beat the petitioner almost daily and also used to
remain absent from home continuously for 2-3 days without any reason or
intimation.
3. On making inquires
through friends and relatives the petitioner came to know that respondent No.1
was having illicit relationship with woman of bad character named Ms. Sonia
residing in Paharganj area. When she objected to respondent No.1's conduct and
absenteeism and cruel behavior towards the petitioner and his adulterous
affairs he became violent and threw the petitioner and children out of
matrimonial home. However, the repeated entreaties did not find favor and he
refused to accept the petitioner and children back to matrimonial home. Being
compelled by the circumstances she undertook a job for her survival as also for
survival of the children.
4. Now for the last five
years the respondent No.1 has been living with another woman Ms.Rubi Mehra,
respondent No.2, and when petitioner requested him to leave respondent no. 2
and accept petitioner and children back he did not pay any heed and when she
approached his mother, she also expressed her inability by saying that he was
no more under her control.
5. Last attempt to
reconcile and mend respondent No.1 was made by the petitioner on 28.9.1997. At
about 2.30 afternoon she went to the house where respondent No.1 has been
living with aforesaid Ms.Rubi Mehra and finding no response from the doorbell
and knock at the door she tried to open the door and moment she pushed it, it
got opened since no latch was put inside. When she went inside and did not find
anybody in the drawing room, she proceeded to the bedroom and knocked at the
door. The respondent No.1 removed the latch and half-opened the door but when
she pushed it, respondent No.1 lost the control of his hold and the door got
opened. She saw respondent No.2 lying in the bed stark naked. She pulled the
bed sheet and covered herself. The only inference was that both of them were
having sexual intercourse at that time. Respondent No.1 became very angry and
hurt the petitioner on her face and pushed her out of the room and abused her
by calling her a bitch and also threatened to kill her in case she again tried
to enter the house. Thus, the respondent no.1 has not only committed physical
and mental cruelty upon the petitioner but has also been committing adultery
since long apart from deserting her and her children.
6. In spite of having been
served with the notice of the petition, none of the respondents came forward to
contest it. The petitioner filed the affidavit by way of evidence in support of
aforesaid allegations.
7. As is apparent, there
are allegations of physical beating, remaining absent for days from the
matrimonial home without information or intimation and having adulterous
affairs with two women and lastly having been found in suspicious and
questionable circumstances with respondent no.2 in the bed room and the long
desertion of the petitioner and the children and failure of all efforts on the
part of the petitioner to bring back the respondent no.1 on the path of virtue
or attend the husbandly duties.
8. It is no more valid to
say the cruelty occurs only when there is bodily harm or infliction of physical
blows endangering life, limb or health. The concept of cruelty in marital
relations has widened its net and brought the mental cruelty into its fold.
Since element of happiness in marriage has gained currency, the definition of
cruelty cannot be put in strait-jacket manner. Marital cruelty which includes
mental cruelty also has been enunciated by the Supreme Court in , V. Bhagat vs.
Mrs. D.Bhagat. as under :-
"Mental cruelty in
S.13(1)(ia) can broadly be defined as that conduct which inflicts upon the
other party such mental pain and suffering as would make it not possible for
that party to live with the other. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to live together.
The situation must be such that the wronged party cannot reasonably be asked to
put up with such conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause injury to the
health of the petitioner."
9. Thus it is not always
essential that a course of conduct should aim at causing mental pain and
suffering in order to constitute the cruelty. It is the effect produced by the
course of conduct and acts of a spouse and not the motive that is relevant. It
has been rightly said that sometimes words inflict a more painful blow and
cause psychological sufferings and emotional distress than physical cruelty,
though occasional bickerings or pinpricks are part of normal marital life as
human fragility generates such skirmishes.
10. Whether refusal to have
sexual intercourse amounts to cruelty or not depends upon the facts and
circumstances of each case. Sexual intercourse is just one of marital rights.
No doubt, the denial of sexual relations causes frustration and misery to the
aggrieved party and is likely to destroy the fibre of marriage yet reasonable
denial on the part of either party does not constitute cruelty. This aspect of
marital obligation has been dealt with in most elaborate manner in Jacobson vs.
Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a
personal and delicate nature and depends on sentiments and feelings to such an
extent that it would be an intrusion into the privacy of domestic life to
stipulate reasonable denial on the part of either party to submit to marital
intercourse constitutes cruelty. Such denial does not constitute cruelty even
though refusal to have marital sexual relations undermines the essential
structure of a marriage.
11. It is further observed
that, if refusal is occasional, or for a short period, it is against public
policy to treat it as cruelty. However, complete failure to have sexual
intercourse for a prolonged period or its total or irrevocable negation despite
advances and requests does constitute cruelty as in the absence of an adequate
excuse such refusal strikes at the basic obligations springing from marriage
undermining its essential structure.
12. For instance a denial
on the ground of ill health or say after child birth or for some such reasons
including excessive or obsessive sexual demands of a spouse may fall in the
category of reasonable denial.
13. 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.
14. 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.
15. In Ammini's case
(supra) the provisions of Section 10 were held to be violative of Article 21as
well as 14 of the Constitution of India as they compel a deserted or cruelly
treated Christian wife to live perpetually tied down to a marriage which has
for all intents and purposes ceased to exist as a result of desertion and
cruelty shown by the husband concerned are highly harsh and oppressive and as
such arbitrary and violative of Article 14 of
the Constitution of India. Christian spouses alone are not entitled to get
dissolution of their marriage on the ground of cruelty and desertion even if
perpetrated continuously for any length of time. They are entitled to get only
a decree for judicial separation under Section 22 of
the Act. Spouses belonging to all other religions governed by the other
religions Acts are entitled to get dissolution of their marriage on the ground
of cruelty and desertion for the period fixed by the respective Acts. The
provisions of Section 10 are held to be discriminatory vis-a-vis
Christians spouses merely on the basis of religion.
16. In Pragati's case
(supra) the Bombay High Court also held the provisions of Section 10 as
violative of Article 14, 15 and 21 of
the Constitution of India for the following reasons:
"The different
treatment which is accorded to Christian woman under S.10 of the Act is based
merely on grounds of sex. Similarly, if one compares the provisions of the
other enactments on the subject of divorce, it would be clear that Christian
wives are discriminated and have been treated differently as compared to wives
who are governed by the other enactments. The discrimination is, therefore,
based merely on grounds of religion. The aforesaid discrimination, in the
circumstances, is violative both, of Art. 14 and
of Art. 15 of
the Constitution. Similarly, if one has regard to the dealing with protection
of life and personal liberty, it would be clear that the position of Christian
women, has been rendered most demeaning as compared to Christian husbands, as
also wives governed by other enactments. The provisions contained in S.10 in
the circumstances, are violative of Art.21 also."
17. 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.
18. 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.
19. Here when the
petitioner wife came to know that the respondent No.1 has started living with
respondent No.2 at premises C-125, Dayanand Colony, Lajpat Nagar, New Delhi -
110024, she visited the premises and found the door closed. There was no
response to the doorbell as well as the knock. She pushed open the door that
led her to the drawing room. There was nobody. Feeling suspicious she knocked
at the door of the bed room. The moment it was in the process of being opened,
the petitioner pushed it open forcefully and found respondent No.2 lying stark
naked in the bed. On seeing her, she pulled the bed sheet to cover her up.
20. It is said that the
adultery is committed in darkness and secrecy and, therefore, it is difficult
to provide a direct proof. Rather eyewitness account or photographic account of
evidence of intercourse is taken as offending. A celebrated jurist Raydon in
Raydon on Divorce observes that a direct evidence is rather apt to be
disbelieved as it smacks of manipulation. It is rare that the parties are
surprised in direct act of adultery. In the opinion of Sir William Scott in
Lovedon vs. Lovedon, 2 Hagg Con, 1810, (Australian Family Law, p.455),
"the only general rule that can be laid down upon the subject is that the
circumstances must be such as would lead the guarded discretion of a reasonable
and just man to the conclusion, for it is not to lead a harsh and intemperate
judgment, moving upon appearances that are equally capable of two
interpretations, neither is it to be a matter of artificial reasoning, judging
upon such things differently from what would strike the careful and cautious
consideration of a discreet man".
21. Thus the adultery is to
be inferred from circumstances which must indicate inclination, guilty
intention and opportunity to commit adultery. Bed room evidence is one of such
strong circumstances as way back in 1909 in Kerr v. Kerr,
114 App. Div. 1421, it was observed that where man and a woman who are not
husband and wife have bed room privacy, there is strong inference of adultery
as they do not sing prayers there.
21. In the instant case
sufficient bed room evidence has been furnished by the petitioner culminating
in proof of adultery.
22. Taking over-all view
and the long course of cruel conduct coupled not only with adulterous
dispositions but actual indulgence in adultery, I feel pursuaded to allow the
petition and grant decree for dissolution of marriage. Accordingly the marriage
is dissolved. A decree sheet be prepared.
