There are numerous grounds laid down in the Hindu Marriage Act (and other marital laws) that list adultery as a valid reason for divorce. The foundation of adultery-based divorce is the idea that marriage ensures that your spouse is on an equal footing with you.
Legally, any spouse may petition a court for a divorce on the grounds that the respondent engaged in voluntary sexual activity with someone other than his or her husband after the marriage was solemnized.
The individual making the accusation has the burden of proving adultery. Since sexual activity occurs in solitude or secret, it must be proven by circumstantial evidence that leads to the inevitable conclusion of adultery, even though direct proof is rare even with the development of all methods to catch it. The prudent man must pass the test. It is not necessary to show adultery beyond a reasonable doubt in a civil or divorce case because the evidence required is not as strong as in a criminal prosecution.
Adultery as an offence in India
The following are the necessary elements for adultery to be committed:
- There should be sexual activity occurring outside of marriage, and this activity should be voluntarily.
- The extent to which circumstantial evidence can be deemed as proof of adultery has been disputed in a number of court rulings. As a result, the Odisha High Court ruled in the case of Banchanidde v. Kamladas that the circumstances had to be so strong that adultery was the only conclusion that could be drawn.
However, the Madras Court ruled in the case of Subbarma v. Saraswathi that it is possible to assume that adultery has taken place when a stranger is discovered with the wife after midnight. In the case of Maclenna v. Maclenna, the courts were forced to decide whether the use of an artificial insemination donor (AID) by the wife without the husband’s consent might be considered adultery.
Proof of Adultery:
Allegations of adultery must be explicitly stated along with the circumstances surrounding the alleged adultery. The petition must provide particular instances of the adultery, including the time, place, and parties involved. Additionally, the petition can be amended for cases that have already been filed. The following evidences, among others, can be used to show adultery:
Courts have upheld the claim of adultery in the following situations: (a) Wife had been missing from her home for a while and had been spotted with a stranger to her husband’s family without a valid excuse or any other explanation.
(a) A stranger was discovered in actual physical proximity to the wife and alone in her bedroom after midnight.
(c) A child born more than a year after the spouses’ marriage has ceased to be in consonance.
(d) Post-suit adultery evidence is admissible to support and clarify other evidence presented in the case as well as to demonstrate the nature and calibre of the prior deeds.
(e) Letters from an unlawful connection that were received from a paramour.
(f) The wife’s written admission of infidelity.
(g) To establish adultery, disinterested witnesses must testify that they saw the respondent sharing a bed with a different individual on certain nights.
(h) Just one incidence of a wife engaging in consenting sexual activity with another person suffices.
The court has rejected the claim of adultery in the following instances.
(a) The co-holding respondent’s wife’s breasts in his hands, while she is in a restaurant cabin with her blouse and brassiere unhooked, is insufficient to establish adultery.
(a) No evidence of adultery was detected when the wife was observed riding another person’s scooter or conversing with someone other than her husband.
(c) There is no evidence to support the wife’s alleged infidelity when she was seen with another person in a room at 10 p.m. with the door closed but unlocked while the husband’s mother and five adult children were present.
(d) Just because a male relative writes a married lady letters does not imply that there was an unlawful relationship between the writer and the recipient.
(e) A wife getting pregnant after her husband had a vasectomy without evidence that the procedure was successful eliminates any possibility of a wife having an illicit relationship.
(f) When the husband does not state this accusation in the notice of divorce prior to the filing of the lawsuit, serious concerns may be raised about the wife’s alleged infidelity.
(g) When the husband files the divorce petition 8 years after learning that his wife has been having an extramarital affair and has not given a single explanation for the excessive delay.
(h) The mere fact that the alleged adulterer is in the parties’ bedroom does not amount to an adulterous act.
(i) The wife’s masturbation of the co-respondent is not adultery.
(j) The husband’s claims that he observed his wife conversing with someone else three times during the day without any physical touch are insufficient.
While Adultery as an offence has been decriminalized, it still remains a valid ground for divorce.