Adultery and Divorce under Hindu Marriage Act

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  • Last Updated on 30 December, 2021

Adultery under Hindu Marriage Act 1955: 

Adultery means when a man or a woman who is married as per Hindu Marriage Act 1955 has voluntary sexual intercourse outside the lawful wedlock and this is considered a valid ground for judicial separation and divorce under the Hindu Marriage Act, 1955. Under Section 10 of the Hindu Marriage Act 1955, even a single or isolated act of adultery will entitle other party to seek judicial separation from his partner. Only sexual intercourse with a person other than his or her spouse constitutes adultery, mere caresses, or other acts of intimacy with any other person does not amount to adultery. If first marriage is considered void and a man marries second time but continues his sexual relationships with his first wife, then as per Section 13 of Hindu Marriage Act, 1955, second wife can file and obtain divorce under the Hindu Marriage Act, 1955.

Adultery, as a rule, is proved by, based upon any one or more proofs as below –

    • Circumstantial evidence
    • Evidence of non-access and birth of children
    • Contracting of venereal diseases
    • Evidence of visits to houses of ill repute
    • Decrees and admissions of parties which should generally be corroborated
Though proceedings of divorce in Indian Courts are never hasty and may take long durations to preserve the marriage here are a few exceptions where the decision could come quite easily-
 
    • Adultery proved with one person is not exceptional depravity. 
    • Adultery aggravated by the desertion of wife or cruelty to wife would constitute exceptional hardship to the wife.
    • Wife having a child by adultery.
    • Husband’s adultery promiscuously with another woman.
    • Husband committing adultery soon after marriage. 
    • Sexual intercourse with the wife’s sister or servant of the house.
The burden of proof, in cases of adultery always lies on the petitioner. The offence of adultery must be proved beyond reasonable doubt.
In case the petitioner has accepted the adulterous act of respondent and further respondent have not committed any act of adultery, then the petitioner will not succeed to make a valid case against respondent. One such example is when the petitioner continues to live with respondent after him having committed adultery, then the petitioner condones the respondent.
Although a single act of adultery is enough to grant judicial separation amongst the married couples but if adultery is proved it is enough to deny maintenance under Section 125(4) of Code of Criminal Procedure, 1973.
In many cases reported before the courts, where the spouse may have committed the act of suicide in response to the act of adultery by his or her spouse, the court does not consider it to be an act of cruelty and is only considered as an instance when one of the partners failed to discharge the marital obligations. Filing for divorce due to an act of adultery is always a civil case when put forward before the court although it requires valid proof of adultery to be proved.

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