Introduction

Marital bond is considered to be amongst the most important parts of one’s life. Sure, it takes birth from religions and is bound by the roots of laws of a country but most importantly it based on the foundation of trust. Hence, faithfulness is a natural expectation in the institution of marriage. Cheating on your partner, more commonly known as extra-marital affairs is legally termed as ‘adultery’ where one partner is involved in sexual intercourse outside the scope of marriage.

During the course of valid marriage, when husband involves himself with a woman who he knows not to be his wife or in case of a wife, with a man who she knows not to be her husband, has sexual intercourse with her/him, commits the act of adultery. Voluntary sexual intercourse between a married person and a person who is not their spouse can simply be termed as adultery. It is not necessary that the act is continuous i.e. sexual intercourse takes place more than one time. A single act in sufficient to conclude the act of adultery. 

Section 497 of Indian Penal Code, 1860

Understanding the role of this provision is really necessary in understanding the criminal liability of adultery. Under Section 497, adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter's wife. Section 497 stated that:

“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.”

This provision has been into controversy since long for being discriminatory on the ground of gender. But in September, 2018, the Apex court in India put an end to the debate. Section 497 was scrapped and held to be unconstitutional, overturning the previous three judgments that validated the law of adultery. The reasoning behind the judgment were various though majorly it being anti-women law and discriminatory for treating women as possessions of men and a chattel.  

Earlier the law only allowed the aggrieved husband of the married woman in an adulterous relationship, with an option to file a complaint but same right was not available to an aggrieved wife in case her husband in the same situation. Also, the married woman involved in the adulterous relationship could not be prosecuted or held criminally liable. His husband could not prosecute her for adultery.

The provision was considered to be discriminatory against men by not making women equally culpable in an adulterous relationship the court settled with stating that women could only be a victim of adultery and not a perpetrator of this crime. The supreme court court later even retained the offence of adultery as a crime committed by a man against another man with no involvement of women.

But the situation is no longer the same since the provision has been repealed and hence, the act of adultery is no more a criminal act.

Adultery as ground to seek divorce or separation

Even though there are no criminal liability attached to the act of adultery, it remains a good ground for divorce. It varies in different religion and works according to their own personal laws.

Section 13(1)(i) of The Hindu Marriage Act (HMA), 1955 and section 27(1)(a) of the Special Marriage Act (SMA), 1954 states precisely that any marriage may be dissolved by a decree of divorce on filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you.

It also a ground to seek a decree of Judicial Separation, whereafter you are not required to cohabit with your partner. In case one fails to cohabit with their spouse within a period of one year, any of them can file for dissolution of the marriage through divorce.

The act of adultery can also be used to deny the relief sought by the adulterer spouse provided the adultery is proven and the aggrieved spouse in the counterclaim under HMA or SMA can seek relief against the act of adultery.

It should be noted that it is not necessary that the adultery may be proven beyond reasonable doubt especially in matrimony cases, as is proven in every criminal case. Additionally, it is necessary to implead the adulterer as a co-respondent in the suit, failing which the suit may get rejected in the court of law. Once, the accused spouse is condoned by you for the act of adultery by the other spouse and he/she does not commit the at again, you cannot use the ground of adultery committed earlier as the ground for divorce or judicial separation.

In Islam, unlawful sexual relationship is known as zina and is haraam and considered as a major sin. In case Muslim personal law, a husband can seek divorce through Talaq or Judicial separation.

A wife can seek divorce from the husband through talaq-i-tafweez if power of divorce is delegated to her by the husband. She can seek relief of divorce under Section 2 (viii) (b) of the Dissolution of Muslim Marriage Act, 1939 wherein an association with a woman of evil repute is a ground for divorce. A false accusation of adultery or a failure to prove the act of adultery on husband’s behalf becomes a ground for divorce for the wife. This concept is called Lian.

Under the Christian laws, section 10(1)(i)of The Divorce Act, 1869 provides adultery as a ground of divorce.

“Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.”

But the same would not hold the same ground if the respondent spouse (accused adulterer spouse) is a prostitute by profession or if the petitioner fails to prove the identity of the adulterer (with whom the spouse committed adultery) or in the case where the adulterer is dead. Adultery also forms a ground for judicial separation under Section 22 of the said act.

Under the Parsi laws, it forms a ground for divorce under Section 32(d) of the Parsi Marriage and Divorce Act, 1936 and a ground for judicial separation under Section 34(d) of the said act. It is necessary that the case is filled within the two years from when the petitioner came to know about adultery being committed, for suit of divorce to be valid.

Question of alimony or maintenance

An aggrieved husband can avoid paying alimony to the wife if she is an offender of adultery and has committed infidelity. Though it is necessary that such infidelity is committed voluntarily and not under any fraud, influence or misrepresentation.

Section 18 in The Hindu Adoptions and Maintenance Act, 1956 states that

“A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-  If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere. The wife who is charged under the allegation of being indulged in the adulterous activity cannot be made liable to enjoy the ripened fruits of the Maintenance”.

The Code of Criminal Procedure(CrPC), 1973 denies the wife the entitlement to receive an allowance from her husband provided under this very provision if she is living in adultery or has committed adultery. 

The Indra Sarma vs. V. K. V. Sarma judgment of the Supreme Court of 2013 has illustrated five categories where the concept of live in relationship in India can be considered and proved in a court of law which includes the domestic relationship between an adult unmarried man and a married woman, entered knowingly. Although maintaining an adulterous relation would not come within the ambit of live-in relationship which is to be protected by law.

In the same case, Supreme court made it clear that "Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage”.

Proving adultery and collecting evidences

In an adultery suit, the burden of proof is on the party making the accusation. It is important to provide sufficient evidence for the party making the claim to support their arguments as well as their case. However, it is not very easy to collect such evidence. Direct evidence includes witnesses, photographs, video, audio recordings etc, capturing the adultery in motion.

There are no statutory grounds present for proving the claim of adultery in the court though some presumptive grounds are acceptable. These are:

• Circumstantial evidence - In case of absence of direct evidence, circumstantial evidence can be submitted before the court. “It is unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. So, circumstantial evidence is all that can be normally forthcoming regarding adultery. The circumstantial evidence thus produced must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery”. However the inference drawn through such evidence to prove adultery may or may not prove the guilt beyond reasonable doubt.

• Contraction of venereal disease - If it is proven that the respondent contracted a sexually transmitted disease from someone other than the spouse.

• Visit to houses of ill-repute - Spouse visiting brothels and contacting prostitutes is also considered an evidence.

• Admissions made by the accused in previous proceedings - Such admissions, oral or written form part of evidence.

• Confessions and admissions of the parties - The confessions and the admissions made by the accused to anyone either orally or in writing must be direct and clear. Mere suspicion or inference is not sufficient to be admitted as an evidence.

• Birth of an illegitimate child - Child conceived through sexual intercourse involved in the act of adultery is a strong evidence. Reports of paternity test of a child are also admissible

• Communication records - Text messages, conversations over social media platforms or email exchanges in possession can be presented as evidence.

Things you need to consider when you suspect adultery before deciding the next step:

• Be sure of adultery - you should know what considers adultery and it should not be a mere suspicion without any reasonable evidence.

• Hiring private agencies to spy - Hiring spying agencies to get full investigation report in order to be sure of adultery consists some risks. Though it is legal, the point at which it crosses the line of privacy, it becomes illegal. Examples of such acts maybe phone tapping, access to personal items and files, access to personal information not provided voluntarily. This will violate the Fundamental right to privacy provided under ArtIcle 21 of The Constitution. There is no law existing in Indian to control such agencies. Private Detective Agencies (Regulation) Bill, 2007 which seeks to regulate these, is still pending.

• Approaching a lawyer - Consulting a legal professional can help you with knowing the validity of the evidence, about your rights and advise you with next step of action.

• Filing a suit - You can approach to seek relief based on laws and the act your spouse has committed.