Divorce Adultery: Divorce on Grounds of Adultery in India

Amongst the various grounds of divorce available in Hindu Marriage Act and other enactments is the ground of Adultery. The divorce on grounds of adultery is based on the principle that marriage gives an assurance that the other person is in a state of equitable with you. And when an erring spouse so breaks the trust of the unerring spouse by having sex with someone else, this is a greater form a cruelty and thus it has been made a separate ground of divorce. When this thing has happened in a marriage, no matter otherwise how good the erring spouse is, s/he can not demand an apology as a matter of right. I am trying to dispel some misconceptions regarding how to prove adultery and get a divorce on the ground of adultery.

Legally, any spouse can file a petition in the court of law praying for a decree of divorce on the ground that the Respondent has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Essentially, the sexual intercourse should be consensual or voluntary and not because of any force or crime like rape etc. Legally, a single voluntary act of sex outside marriage is enough. The Respondent should not necessarily be living in Adultery. As of now, courts assume only sexual intercourse between two opposite sexes, but with homosexuality on the rise, it is just a matter of time before the judicial pronouncements in this regard would follow.

Sexual Intercourse does not mean sexual talks/ discussion/ caressing/ kissing/ foreplay etc. Adultery for divorce requires penetration as a must condition; however brief it may be, this said full penetration is not essential.

The burden of proof of Adultery is on the person who alleges it. Though direct proof is rare even after the advent of all means to capture it, as sexual intercourse takes place in secrecy or privacy, it has to be proved by circumstantial evidence leading to a necessary conclusion of Adultery. The test is of a prudent man. The proof needed in a civil or divorce case of Adultery is not as strong as in a criminal case; hence, the misconception that it has to be proved beyond reasonable doubt is wrong. The test, which is called “Hotel Key and Register”, gives a perfect example.

If two persons are not so related that they should spend time in closed confines and still do so, a presumption of Adultery would be very high. For example, it is OK if a brother and sister share a room in the hotel; it is OK if a mother and son share a room in the hotel. But it is not OK for two friends, one male and one female, or two distant relatives to share a room in a hotel/ dwelling place for a long time. This presumption can be rebutted if there are compelling circumstances. So, residing for a long duration in one room or any similar thing by the spouse and adulterer would establish Adultery. The proof required when alleging Adultery in an incestuous relationship needs a little stricter proof.

However, bald allegations that the spouse has developed intimacy with a colleague or a relative and makes several phone calls/ sends lots of SMS/ WhatsApp/ Chat messages is insufficient proof. If any such things are present, it is better to get the CDRs preserved in court to prove that they have been residing at various places beyond these discussions. This could further gain credence if the spouse has travelled in the company of an adulterer or if the spouse is caught in the company of an adulterer in a dwelling unit. One should use this opportunity wisely and immediately call the police/ create witnesses for the same.

Allegations of Adultery must be spelt out with the nature and events when the said Adultery has been done. The petition must contain specific instances of when, where, and with whom the Adultery was committed. And if necessary for already filed cases, the petition can be amended.

In nutshell the Adultery can be proved using the below evidences amongst others:

1. Circumstantial Evidence where the spouse and adulterer has spent time in closed confines.
2. Evidence of non-access to spouse (wife) who has been pregnant or given birth to a child.
3. Spouse contracting venereal disease.
4. Evidence of visiting brothels by the husband.
5. Recordings of admission. Testimony of witnesses corroborated with circumstantial evidences. Compromising letters/ emails/ chats etc.

Circumstantial Evidence: The courts have consistently ruled that Adultery need not be proved beyond reasonable doubt. When a man and a woman are found under suspicious circumstances, they may not be presumed to be saying their prayers. Where the wife absented herself from the house for four to six days at a stretch and had been seen on more than one occasion with a total stranger or a family friend and could not justify or give explanations, it would lead to an irresistible conclusion that she had contracted illicit connections with that man.

Similarly, when a wife was living alone at her parent’s place without resumption of cohabitation by the husband, and she conceived Letters to a paramour, indicating an illicit relationship or even when the husband confessed to visiting brothels.

While filing a petition for divorce on the grounds of Adultery, it is necessary to make the adulterer a party to the petition. The name, address, etc, of the adulterer must be there. However, if the wife has got pregnant, or the husband is seen visiting a brothel, or a spouse has contracted venereal disease, this can be dispensed with. Also, the same is based on the principle that if someone is accused of Adultery and his/ her reputation would suffer if the court records a finding, s/he should be given a chance to defend his/her reputation. Beyond that, mentioning name/ address/ occupation is compulsory under the Hindu Marriage Act.

However, the courts look suspiciously at oral or written confessions, as they can be obtained under duress. Corroboration is required to prove the case even when confession is there. The said confession can be from the spouse or the adulterer. The courts are also suspicious of the confession and admission of the adulterer as the same could be helping the petitioner only.

The haziest point of proving adultery is when the child is born out of the marriage and during cohabitation and the husband suspects that he is not the father. The courts generally do not order DNA tests as a matter of routine. Courts have sometimes relied on the DNA test reports submitted by the father obtained prior to the start of litigation. However, if a spouse denies undergoing DNA test would raise some doubt about paternity of child.

Discussing the concept of condonation of cruelty in the footnote is essential. The condonation of adultery can not be inferred by mere forgiveness. It must be inferred if the erring spouse is re-instated to conjugal cohabitation. Unless the parties have started cohabitation even after knowledge of the adultery, it can not be assumed that the petitioner has condoned the acts of adultery. The test is of knowledge of adultery and not the time of adultery.

If you want to know the ways to prove adultery, I would suggest you go through this article of mine.