Study Notes: ADULTERY as a Ground of Divorce

Introduction:

Adultery is defined as the act of sexual relations between a married person and someone outside their wedlock. In simple words it’s the act of betrayal of trust in a married relationship. In Hindu tradition marriage is a permanent connection between husband and wife which is indestructible and eternal in nature. Divorce was as such unknown in Hindu law. Divorce could not find its place in a system where the law declared “neither by sale nor by repudiation is a wife released from her husband”[1]and was considered till 1955. In 1955 there was enactment of Hindu Marriage Act[2] that laid adultery as one of the grounds for divorce. There are similar laws in India for Christians and Muslim.

Special Marriage Act:

The Special Marriage Act, 1954 recognizes adultery as the valid ground for divorce. The act recognizes adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation[3].

However, in recent years Supreme Court declared adultery could be a ground for divorce and carry civil penalties, but not a criminal offence.[4] As under section 497 of IPC only men were punished for having consensual sexual intercourse outside their wedlock and women goes scot-free. This was arbitrary and discriminated against men and women.

Hindu law

Hindu Marriage Act, 1955 “living in adultery” is considered as a ground for divorce in India. Here the words “living in adultery” interprets that there’s a continuous course of adulterous conduct of a spouse is in proximity to the filling of petition. It may be difficult under this section to prove a continuous course of adulterous conduct till the time of filling of petition. A single act of adultery may permit for judicial separation under Section 10 of the act[5]. Parties may file judicial separation under the grounds mentioned in Section 13(1), irrespective of marriage being solemnized after or before the commencement of this act. One such case which very well fits here is Sulekha Bairagi v. Prof. Kamala Kanta Bairagi.[6] Where husband had filled for divorce on grounds of his wife’s adultery and alternatively for judicial separation on the ground of cruelty. Court favoured petitioner on the grounds of all the evidences provided and judicial separation was granted.

In Rajani v. Pabhakar[7] it was highlighted by the High Court of Bombay that ‘it would not be in consonance with the intention of the legislature to put too narrow and too circumscribed a construction upon words ‘is living’ in section 13(1)(i)’. For attracting the operation of these words it must be shown that the period during which the spouse was living an adulterous life is related with the proximity of time of filling of the petition so that it could be reasonably inferred that the petitioner had a fair ground to believe that when this petition was filled spouse was living a adulterous life[8].

It is the responsibility of petitioner who wants to file a divorce petition, to substantiate the statements with proper evidence. Its petitioner’s responsibility to prove that he/she was in reality married to the respondent and the respondent was ‘living in adultery‘[9]. In earlier times adultery has to be proven beyond reasonable doubt. But in recent years Supreme Court stated that proving beyond reasonable doubt is not essential in civil cases. In the case of Dastane v. Dastane[10], Supreme Court held that there is no burden of necessity of the presence of proof beyond reasonable doubts where relationships are involved especially those between husband and wife.

Muslim law

Unlike the Hindu law, a majority of Muslim personal law has not been codified and the rituals and laws work according to the holy Quran and the Hadiths. According to the holiness of Quran, it is suggested that if a person is involved in the shameful act of adultery, he/she should be stoned to death as a punishment towards a sinful act. But this is something which constitution does not allow considering human rights and treating a person with humanity instead of cruelty. If a man has enough evidence to prove that his wife is somehow involved in physical relation with another man than he can by all means divorce his wife. But if the accusations are faulty and are so proven in court, then wife can either ask husband to retract the accusations or claim for a divorce under lian. Even if husband retracts the accusations and sincerely apologize for the same, the wife claims are unshakeable. It is her and only her choice to either divorce or stay on her claim. With an example of Tufail Ahmad v. Jamila Khatun[11] Allahabad court further added that only such wives who are proven innocent of adultery are allowed to file divorce under lian.

The Dissolution of Muslim Marriage Act, 1939 states in section 2(vii) (b)[12] that if a man leads to a treacherous life or is involved with women of evil repute, she can sue him based on the conduct of cruelty. This is similar to what Muslim Laws hold against adultery.

In case of Zaffar Husaain v. Ummat-ur-Rahman[13], the wife of plaintiff held that her husband had quoted before several individuals that she had illegitimate sexual relation with her brother. The court stated that if a Muslim woman is accused of false charges of adultery then she can claim for a divorce on the basis of that ground. But if the allegations are true then she cannot file divorce under Islam and suit can be filled in case of an irregular marriage.

There is no such provision for the judicial separation under the Dissolution of Marriage Act, 1939. In Ms. Jordan Diengdesh v. S.S. Chopra[14] the Supreme Court stated that the grounds for divorce under Section 2 of the Dissolution of Muslim marriage act shall be the grounds for the application for judicial separation as well.

Christian law

The Indian divorce act and Indian Christian Marriage Act, 1969 contains all the laws regarding divorce and judicial separation among Christians in India.

There is a two-step procedure for divorce in India under the Indian Christian Marriage Act. Firstly, the couple has to get annulment from the church and then they will have to proceed towards court for a decree of divorce. However, under the act husband only had to prove that his wife was into the act of adultery. Whereas wife had to prove the presence of adultery, cruelty, conversion of religion, insanity etc. This is very shameless and unfair. This puts unnecessary pressure on wife. In case of Ammini E.J. v. Union of India[15]court commented that it’s the violation of section 21 of the Indian constitution.

Christian women can file for judicial separation on the grounds of adultery. Section 22 of Indian Divorce act, bars a decree of divorce but states that judicial separation may be acquired on the grounds of adultery.

Conclusion

Adultery has always been treated as a conduct of grave immorality. Court has taken serious efforts for such issues and granted contested divorce in India by considering various aspects. Court has taken into consideration various circumstances of couples seeking for divorce in presence of their children. Court considers delay in filing of petition especially in such cases where children are involved.

Taking into account Article 14 of Indian constitution court declared adultery no more to be a criminal offence as it was discriminated against men and women. From the above referred case laws it’s clear that court has always tried to give men and women an equal status. Though adultery has been decriminalized but the decision was misunderstood grossly. Law does not and cannot authorize extramarital relations. One thing that needs to be understood here is that morality and legality are two different things. What society thinks immoral cannot be punished that to in a biased way where only men are punished. Court made it very clear that adultery will not be a criminal offence for men and women too.

[1]  P. Bhattacharyya “Adultery as a ground for divorce under the Hindu marriage act”.
[2]  The Hindu Marriage Act, 1955.
[3] The Special Marriage Act, 1954 (Act 43 of 1954).
[4]  Samanwaya Rautray “Can be ground for divorce, but is adultery crime: Supreme Court” available at: Source Link.  
[5]  The Hindu Marriage Act, 1955 (Act 25 of 1955), s.10.
[6] AIR 1980 Cal 370.
[7]  AIR 1958 Bom, 264.
[8] Supra not 1 at 219
[9] Shivi gupta “Adultery as a Ground for Divorce Under Indian laws”.
[10] (1975) 2 SCC326.
[11] AIR 1962 All 570.
[12]  The dissolution of Muslim Marriage Act (Act 8 of 1939), s. 2(vii) (b).
[13] 49 Ind Cas 256.
[14] AIR 1985 SC 935.
[15] AIR 1955 Ker 252.