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Understanding Adultery – Grounds For Divorce In India

In a survey conducted by Ashley Madison, a global dating website, it was revealed that 76% of Indian women and 61% of Indian men don’t think that infidelity is a sin or immoral. People may not find infidelity a sin or immoral, but I would like to remind you that adultery is illegal as per Section 497 of the Indian Penal Code, 1860 which reads as under:

497. Adultery 

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.

Adultery is also one of the valid grounds for divorce in India under Section 13(1)(i) of the Hindu Marriage Act, 1955 which reads as under:

13 Divorce  
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party;
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

With the legal provisions out of the way, allow me to explain as to how exactly the concept of adultery is understood as a ground for obtaining divorce before Indian Courts.

Now adultery is understood to mean a willing sexual intercourse between a husband or wife with one of the opposite sex, while a marriage subsists. Even a sexual intercourse between those persons falling short of a complete penetration may also constitute it adultery. It is also immaterial whether the marriage itself had been consummated by the husband and wife or not.

A voluntary sexual intercourse by a party to the marriage with any person other than his or her spouse must be after solemnization of marriage between them, which means, that during subsistence of a marriage. For example, if in-spite of the fact that the wife had delivered a fully matured child within six months of her marriage with her husband, as a result of her illicit relationship with someone else prior to her marriage, it would not fall within the ambit of adultery. In this case, the husband would have no case for dissolution of his marriage with his wife on the ground of adultery.

It is also to be remembered that there has to be actual sexual intercourse with someone else during an existing marriage for it to be constituted as adultery. For example, in case a wife had written some letters and had shown some gestures of love before marriage to another person, that cannot be made the basis of divorce after marriage on the ground of adultery.

The important thing to understand is that the act of sexual intercourse must be voluntary, but if it is involuntary, for example rape, then there can be no adultery. Adultery is a ground for divorce, rape is not. There is a fundamental difference between the two; adultery is with consent, while rape is without consent.

Adultery Grounds For Divorce In India, Procedure for Divorce in Delhi, Procedure for Getting Divorce in Delhi, Procedure for Hindu Divorce in Delhi, Procedure for Divorce under Hindu Marriage Act, Procedure for Legal Divorce in Delhi, Procedure for Obtaining Divorce in Delhi, Procedure for Divorce Petition in Delhi, Procedure for Divorce as per Hindu Marriage Act in Delhi, Procedure for Divorce as per Indian Law, Procedure for Seeking Divorce in Delhi, Procedure for taking Divorce in Delhi, What is the Procedure of Divorce in Delhi, Procedure for Contested Divorce in DelhiNow prior to an amendment in the Hindu Marriage Act in 1976, the expression “living in adultery” was used in Section 13(1)(i) which meant a continuous course of adulterous life as distinguished from one or two lapses from virtue. Till 1976 the law was that if a spouse was “living in adultery”, the other side could claim divorce, but now the law is that if a spouse after the solemnization of the marriage indulges in voluntary sexual intercourse with a person other than his or her spouse, he or she as the case may be would be entitled to get divorce, meaning that even one act of extra marital sex would be enough to grant divorce to the other spouse.

The important thing is that the burden of proving a serious misconduct like adultery lies heavily on the party asserting it. In cases where the allegations consist of a spouse living a life of adultery, and it is not confined to adultery with any specified individual or individuals, then it that case, direct evidence should be made available to the Court. That the evidence must be clear and convincing so as to lead to a clear conclusion that the alleged offence of adultery had been committed, beyond possibility of a reasonable doubt.

The evidence of adultery should be pretty clear and conclusive or else the divorce proceedings may boomerang. For example, in a case where false allegations that the wife had sexual intercourse with a person other than the husband, is a serious allegation against the wife and would show the cruel conduct of the husband entitling the wife to seek divorce from him. Also, baseless allegations made against the wife with respect to her character and mere allegations that the wife had committed adultery without naming the person with whom she allegedly had a sexual relationship on the pretext that he does not know that person, would be a very weak case and may not not take him anywhere in his divorce case.

There is a fundamental difference between committing adultery and intention to commit adultery. Mere intention to commit adultery is not an offence under the Indian laws, and therefore the intention itself is not a proof of adultery and hence not a valid ground for divorce.

Again, the charge of extra-marital connection is a serious charge and casts some serious aspersion on the character of the other spouse, hence the other spouse must get an opportunity to meet the charge, therefore the petition for divorce must state specific act of illicit sexual intercourse, the name, occupation and place of residence of the other person involved in the adulterous relationship.

Since we now have a basic understanding of adultery as a ground for divorce in India, I’ll conclude by stating that, adultery is, as a general rule, proved by presumptive proof based upon;

(a) circumstantial evidence;

(b) evidence of non-access and the birth of children;

(c) contracting venereal diseases;

(d) by evidence of visits to house of ill-repute;

(e) decrees and admissions made in previous proceedings; and

(f) confessions and admissions of the parties which should be generally corroborated though in exceptional circumstances, even if uncorroborated may be acted upon.

Therefore, it is important to understand that mere bald allegations by a spouse that his/her partner was having adulterous relationship with his/her lover after marriage, in absence of any cogent evidence, would not be sufficient to grant divorce.

  • Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.

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2 comments

  1. I am 45 with a teenage daughter. My husband is a good man but has no time for me as he is working very hard in office. I tried all ways to get him interested in me, but he is keen only in earning more money (yes, to provide for us !!!). He is not bad man at all, he is a gem of a guy but a very very boring man. He is a great dad.

    I met this guy six years ago who is married too but separated from his wife of 14 years. He and his wife live in the same city, have a son too. His wife walked out of the matrimonial house when the boy was 5 and has been living with her parents. In spite of his repeated requests, she never returned. But they keep meeting once in 2-3 months and message when some need is there. But he is banned from meeting his son. She wants him to move out of his house n live with her and her parents, but he has an ailing old mom so can’t move out of his house. He used to cry for his son, but she never let him see the boy for the past two years. I even read her chats on his phone saying he CANNOT meet his son unless she allows which is around once in a year. So he didnot lie to me.

    So, I got into an affair with this man that lasted for six years. He kept saying that he does not love her but wants her in his life for his son and society etc etc. Secretly behind my back he was messaging her and begging her to return home though he said he loved me only. So I continued this affair without much guilt as they both never had any physical or emotional relationship after she moved out. I didnot break their home, it was already broken even before I entered his life.

    Suddenly his wife found all the emails and pics we shared over the period of 6 years and became crazy. She threatened him with a divorce. I was surprised because they hardly met after she left him ( that is 8 years ) and both haven’t seen each other in the past two years. However, she felt that he has been two-timing her too as he was still married to her and still asking her to return home for the past eight years.

    Unfortunately, once she got to know about the affair, the guy panicked and said that all has to end and that he was worried that she would open up everything and forward those emails n pics to his friends and relatives. So he begged me to ‘keep a low profile’ for one year and not contact me at all. When I asked him if his marriage meant this much to him then why he had to two time me as well!
    I asked him why he did not leave me and worked on his marriage? I lost six years of my life and never made any effort to gain my hubby’s love in these six years.

    I’m devastated. I put in all my efforts into this relationship through its immoral, illegal, whatever. How could he dump me and disconnect forever? I’m not able to recover from this terrible shock; I don’t want to go to any counselor.

    When I asked him if he wants to give his marriage a second chance and when I asked him if he is dumping me forever, he says ‘ i don’t know’!

    I want to die. I can’t forget those six years. I’m also burning with revenge. So now he is making his marriage work (which never existed before) while I ruined my life.
    I can’t move on. I lost my love; I also lost a great friend.

    I confessed to my husband about the affair and he was shocked. I didnt have guts to tell him that it was physical but said it was an emotional affair. Though terribly hurt, he is supporting me to get through this. He is too good for me I know but Im so depressed and became so insensitive that instead of feeling guilty, Im missing my lover.

    We were extremely close, spent 6 years of time almost every day together sharing everything going on in our lives. It was an extremely intimate affair. Not just physical. In fact we got physical rarely.

    Will he ever come back to me? or it is all over from his side?
    Will his wife take him back? How can she when she has been staying separately from him for eight years? Will they now suddenly restart their lives staying together?

    Please don’t judge me. Now all I want is my lover coming back to me and I want to teach him a lesson ( by dumping him myself once he comes back) for dumping me this way and for 2 timing me.

    Please tell me what would happen now in our lives from now?

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