NAME – ABHISHEK ANAND

ROLL – 24

SUB – FAMILY LAW -1

COURSE – BALLB

SEM – 5

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Adultery: A Ground for Divorce in
India
Adultery as defined under Section 497 of the Indian Penal Code, 1860, is 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.”

Personal laws all over the world censure the act of adultery, and it is contemplated as a
ground for divorce or separation. Moreover, the Hindu law that has no concept of
separating or divorcing once married also condemns the act of adultery unambiguously. In
the current scenario, adultery is a ground for divorce or separation.

The key ingredients of adultery are:

 An act of sexual intercourse outside marriage
 The intercourse should be voluntary

Adultery is a crucial matter, and it has always been a matter of disparity in the related
judgments of the courts. The primary reason is to decide which circumstantial evidence can
be considered as proof of adultery. For example, Odisha High Court in the case of
Banchanidde vs Kamladas said that only irresistible conclusion could be adultery, as
circumstances should be so compelling.

However, in the case of Subbarma vs Saraswathi, Madras High Court said that if an
unrelated person is found with the wife after midnight, it may be considered as an
adulterous act.

In another case Maclenna vs Maclenna, Outer House, Court of Session, Scotland, the court
faces a dilemma when the question raised that whether a wife using Artificial Insemination
Donor (AID) without her husband’s consent can be considered as adultery or not. However,
the court stated that AID could not be considered as adultery and rule in favour of the wife.
Nevertheless, it is noteworthy that the burden of proof that whether the act of adultery took
place or not lies on the petitioner only.

Hindu Laws on Adultery

Adultery is defined under Section 13(1) of the Hindu Marriage Act, 1955, is a ground for
divorce in India. According to it, adultery is an act of voluntarily indulging into sexual
intercourse out of marriage, i.e. any person who is not the spouse of the respondent. Thus,

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it becomes necessary for the petitioner to prove that he/she is married to the respondent,
and the respondent made voluntary sexual intercourse with another person.

Any of the spouse filing a divorce petition have to prove the statement with pieces of
evidence. With time and significant cases, Indian courts have emphasized that the act of
adultery have to be proved beyond a reasonable doubt. However, over the years
Honourable Supreme Court’s in such cases seems to differ, stating that proving beyond
reasonable doubts is a compulsion for criminal cases, not civil cases.

In a similar case Dastane vs Dastane, the Supreme Court stated that the presence of proof
beyond a reasonable doubt is not a necessity, when such crucial personal relationships are
involved, like a husband and his wife.

Kerala High Court in the case of Ammini E.J. vs Union of India stated that between the
spouses, the husband is in an advantageous condition when it comes to adultery being a
ground for divorce because along with the wife proving adultery, will face uncomfortable
situations. Therefore, it will be discriminatory towards the wife. In the case, the court also
ruled that the wife can also file a divorce petition against her husband on the grounds of
only adultery, without any other offence such as desertion or cruelty.

The Marriage Laws (Amendment) Act, 1976

The Marriage Laws (Amendment) Act, 1976 passed and made the ground for divorce and
judicial separation common. Under the amendment, any aggrieved party can file a petition
for divorce or judicial separation by choice.

Prior to this, enactment was considered as the conduct of immorality. Though adultery was
a matter of grave shame, still it was not a ground for divorce. This amendment made the
grounds for divorce and judicial separation same, and it was marked as a significant
development in the category of Hindu Personal law.

Adultery Under Hindu Marriage Act, 1955

Section 10 of the Hindu Marriage Act, 1955, says adultery is defined as a ground for judicial
separation. The section states that the parties can file a decree for judicial separation or
divorce because they are mentioned under Section 13(1) of the act. However, it is
irrespective of the fact that before or after the commencement of adultery marriage being
solemnized.

In the case of Sulekha Bairagi vs Prof. Kamala Kanta Bairagi, Calcutta High Court, the matter
was that according to the husband, his wife used to visit the co-respondent and was caught
in a compromising position. The wife was also accused of neglecting her marital duties. The
court took the decision in favour of the petitioner, i.e. the husband on the merit of the
provided evidence and thus granted the judicial separation.

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The above cases prove the fact that decisions of such cases are bases on the facts and
nature. There need not be similarity, as the decision is on a merit basis.

Muslim Laws on Adultery

According to Quran, the act of adultery is a severely punishable offence, and it is to be
punished by stoning to death. However, due to humane treatment to the citizens under a
democratic constitution, it is not possible. Under Muslim law, a husband has a right to
divorce his wife if he has enough evidence to prove the wife’s adulterous relationship.
However, only in the circumstances of false evidence, a wife can ask to withdraw the
accusations or can divorce him.

But, in case the husband withdraws the claims and apologizes in the particular manner
prescribed by the law, the claim of the wife gets subsists. Allahabad High Court sated in the
case of Tufail Ahmad vs Jamila Khatun that this may be used as a ground for divorce to such
wives who are not guilty of the act of adultery.

Dissolution of Muslim Marriages Act, 1939

Section 2(viii)(b)of the Dissolution of Muslim Marriage Act,1939, states that if a man leads an
ill-famed life or associates himself with any woman of evil repute, his wife can sue the man
on charges of cruelty. This concept of Muslim law is close to the concept of adultery.

In the Zaffar Hussain v. Ummat-ur-Rahma, 1919at Allahabad High Court, the wife accused
her husband of stating before people that she had illicit intercourse with her brother. In its
judgment, the court ruled that if a woman is falsely accused of adultery, she can claim
divorce for the same. On the other hand, the wife is not liable to claim a divorce if the
accusations of adultery are true.

Christian Laws on Adultery

The Indian Divorce and Act, 1869 and Indian Christian Marriages Act, 1872 deals with the
divorce and judicial separation laws for Christians in India. The Indian Divorce Act, 1869,
Section 22, bars divorce with mensa et toro (legal separation). But, it has made a provision
for judicial separation on the grounds of adultery.

Procedure
There are dual procedures when it comes to granting a divorce in India under the Indian
Christian Marriage Act, 1872.

Under the first one, the Christian couple has to obtain an annulment from the concerned
Church where the marriage was performed, and then they may apply the courts for a

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divorce. It is noteworthy that under the act, the wife had to prove a few other grounds as
well, along with adultery, such as cruelty, insanity, change in religion, etc. Whereas in the
case of the husband, proving just the act of adultery of his wife is enough ground for
divorce. However, Section 11 of the Christian Marriage Act, 1872 states that the adultery has
to be pleaded and be present as a co-respondent.

 The Bombay High Court in 1997, in Pragati Varghese vs Cyril Georg, commented that
proving other grounds along with adultery puts unreasonable pressure on the wife
and is unfair towards her. The court allowed the act of adultery as an independent
ground for seeking a divorce.
 The Kerala High Court in the case of Ammini E.J. vs Union of India ruled that it is
violative to Article 21 of the Constitution of India for a Christian woman to prove
other offences like cruelty or desertion along with adultery.

Under the second way, a Christian woman is allowed to file a petition for judicial separation
on the grounds of adultery. Section 22 of the act, is not applicable for the decree of divorce
buy allows both the husband and the wife, a judicial separation on the grounds of adultery.

Adultery under Special Marriage Act, 1954

The act of adultery is recognized by the Special Marriage Act, 1954 as it is a valid ground for
divorce if the respondent had have voluntary sexual intercourse with a person who is not
his/her spouse, after solemnization of the marriage. Under the act adultery is a separate
offence, and it does not need to be presented with any other offence in order to file a
petition for divorce or judicial separation.

Calcutta High Court in the case of Sari v. Kalyan, 198, mentioned that though adultery does
not have the burden of preponderance, it is a serious matter, and it needs to be proved
beyond any kind of reasonable doubt. This is because when it comes to adultery, there may
not exist prima facia evidence, but the circumstantial evidence needs to be sufficed.

Conclusion
Adultery has always been demoralized in our country. In fact, in India, the discouragement
has been grown with time. In our country, till the year 1976 adultery was a ground for
divorce only if the spouse was living in adultery, but now, a petition of divorce or judicial
separation can be filed even if there is one single instance of voluntary sexual intercourse
with a person other than the spouse.

In India, the judiciary has taken a serious view on the concept of adultery. It has taken the
various social conditions, circumstances of the party applied for divorce and the presence of
children in consideration. The cases when filing the petition has been delayed when there
are children are taken lightly. However, there is no compulsion to use this rule in all adultery
related cases. It is the complete discretion of the concerned court to decide each case in its

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own merits and demerits. The merits and demerits can be the economic status, children (if
any), family condition and society.

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