Adultery And Divorce -Harkeerat K Bhambra

INTRODUCTION

Adultery means any ‘consensual’ sexual intercourse between the spouse of a person and a third person, which should take place during the survival of a valid marriage. However, sexual intercourse need not be complete. According to Personal Laws adultery is condemned, all over the world.

The essentials, in misdeed of adultery, are:

1. Must be an act of sexual intercourse outside the marriage,

2. Sexual intercourse must be consensual.

According to the Common Law, there existed a difference between illegitimate sexual relations of a married woman to that of a married man, and women only were said to be involved in adultery, hence, adultery was defined as the act of having sexual intercourse ‘another man’s wife’. However, any sexual intercourse between a married man and a single or unmarried woman was not considered adultery.

ADULTERY AS A CRIME

Adultery laws in India were specifically given under the Section 497 of the Indian Penal Code (IPC), which read –

“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 a case, the wife shall not be punishable as an abettor.”[1]

However, in the recent case of Joseph Shine V. Union of India[2], the 158-year-old law was put to be challenged. 2017, December, had seen the petition filed by Joseph Shine challenging the constitutional validity of Section 497 of the Indian Penal Code (IPC). A bench of 3 judges headed the case, however, the Chief Justice of India (CJI), Dipak Mishra had suggested a longer bench, of 5 judges, namely – CJI Dipak Mishra himself with judges R.F. Nariman, A.M. Khanwilkar, Indu Malhotra and D.Y. Chandrachud. The Court had observed that the law was based on certain presumptions. It took the Court 4, separate and concurring, judgments to abolish adultery as a crime under the Indian Penal Code. The Court had also declared that no man is the master of his wife. This historic judgment blew the patriarchal laws in India. The Chief Justice of India (CJI), Dipak Mishra along with Justice Khanwilkar said:

“We declare Section 497 IPC and Section 198 CrPC, dealing with the prosecution of offences against marriage, as unconstitutional”.

ADULTERY AS A MATRIMONIAL WRONG AMONG ALL RELIGIONS

Even though adultery is no more a crime in India, it still exists as a matrimonial offence and is an effective ground for Divorce.

Since adultery is no longer a criminal wrong, the Supreme Court had held that “proof beyond a reasonable doubt” is not needed and, also, “preponderance of probabilities” is just as sufficient to prove the offence of adultery.

As per Section 10 of the Hindu Marriage Act, 1955, defines adultery as a ground for ‘Judicial Separation’, mentioning that the parties to a marriage may file for a divorce under any of the grounds mentioned explicitly under the Section 13(1) of the Hindu Marriage Act, regardless of the fact that whether the marriage was solemnized before or after the commencement of origination of the Act.

According to Section 2 of the Shariat Act of 1937, if a man accuses his wife of adultery, she has the right to file a divorce until the man doesn’t take back his statement. There exist no provisions in the Dissolution of Marriage Act, 1939, that deal with adultery as an offence. However, the Section 2 (vii) (b) states that if the husband is involved with an ill-reputed woman, the wife has the authority to file for a divorce but based on ‘cruelty’ and not adultery. In Zaffar Hussain V. Ummat-ur-Rahman[3], the plaintiff’s wife allegedly claimed that her husband stated to various persons that she had illicit intercourse with her brother; however, it was held by the court that the woman is being falsely accused of adultery and, hence, can rightly claim for divorce. However, the wife can file a suit only if the statement of her husband is false, and she is not guilty of adultery.

For the marriage among couples of two different religions otherwise for those who don’t want to get their marriages registered, under their personal laws, the Special Marriage Act, 1955 comes into the picture. This act too claims adultery to be a ground for divorce, provided under Section 27(a). The Court had stated that adultery may be proven by a prevalence of evidence and the necessity to prove it beyond any reasonable doubt as the prima facie evidence of adultery may not be present and, in turn, the circumstantial evidence would have to suffer, in the case of Sari V. Kalyan[4].

CONCLUSION

In India, marriage is considered to be a sacrament or a sacred bond, and ever since then, adultery has been frowned upon. Until the Hindu Marriage Act, 1955 came into the picture; divorce had no role to play in India, as it was too radical at that time.

Due to the judgment passed in Joseph Shine V. Union of India, men are no longer the master of women. This historic judgment of decriminalizing adultery has made it into a valid ground for divorce, and thus, provides a sense of relief to the spouses that need not be forced to stay in such an unhappy marriage.

References-

1. https://www.bbc.com/news/world-asia-india-45404927

2. https://www.lawctopus.com/academike/divorce-under-hindu-law/

3. https://blog.ipleaders.in/adultery-and-divorce/#:~:text=Adultery%20as%20a%20ground%20for%20divorce%20in%20India,who%20is%20not%20the%20spouse%20of%20the%20respondent.

4. https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-adultery-law-under-section-497-ipc/

5. Hindu Marriage Act, 1955 (bare act, 2020 edition)

6. The Muslim Laws (bare act, 2020 edition)