Adultery- a ground for divorce

-Bharti Taliyan, Dewan Law College

Introduction

Marriages are considered very pious and sacred in the Hindu religion. It is a way of socially acknowledging your relationship with your partner. Marriages are a way by which your partner gets rights to your property and is recognizable by society as well as law. A valid marriage that is by free consent and fulfills the conditions of Section 5 of the Hindu Marriage Act is recognizable by law in India for Hindus. Marriages are considered necessary to cohabit and have sexual relationships with your partner in India. Marriages are like a pious bond between a male and a female where both husband and wife are obligated to maintain dignity, respect, and care for each other. Certain boundaries are restricted and should not be crossed to maintain the sacredness of this bond. Adultery is one such boundary. Partners are expected to be and should be loyal and faithful to each other and should respect the bond between them. Getting involved in an adulterous act is restricted and is a ground for divorce.

Meaning of adultery

Adultery is a form of extramarital intercourse between a married man and a woman or a married woman who is not his wife or intercourse between a married woman and a man or a married man who is not her husband. Adultery is a practice that is forbidden and restricted in marriages in both Hindu law and Muslim law. Adultery is called Zina in Muslim law and is a crime punishable in Islamic law. In Hindu shastras, adultery is a serious breach of Dharma. Marriages in both Hindu and Muslim law are considered to be very sacred and unification of two bodies and souls and indulging in such as is not permissible and accepted. Adultery is like another synonym for cheating on your partner with another person. When two people enter into marriage this where to be loyal to each other and engaging in such acts is not only disrespecting the marriage but also disrespecting your partner. Society as well as the lord does not respect and recognize such adulterous relationships and the children born out of these relationships are not acknowledged by society and even in the eyes of the law they do not have rights equal to the rights that are conferred to a legitimate child.

Previous Section covering adultery.

Adultery is no longer a criminal offence in India but it used to be. Adultery was covered under chapter XX(20) of the Indian Penal Code. Adultery was a criminal offense under section 497 of the Indian Penal code which states that a man who had sexual intercourse with the wife of another man without the consent or permission or connivance of the husband of that woman / has committed the offense of adultery and can be punished for this offense with imprisonment of optim 5 years or a fine or both. It only stated it as an act between a man and another woman who is not his wife and thus the man was guilty here and not the woman. The punishment was also only for the man and not the woman and that targeted only the man. Secondly, if the man engaged in a sexual act with an unmarried woman no party was guilty and then the act was not punishable. Thirdly it was seen as an offence against the woman’s husband and not against the wife of the man who indulges in this act.

Case Laws

There have been many cases from time to time that revolve around the issue of adultery in India. In the case of Yusuf Abdul versus the state of Bombay, 1954 the Supreme Court upheld the legality of section 497 and stated that neither the man nor the woman can bring down legal proceedings on their unfaithful spouses. Only the other party in the relationship and that too specifically the offended husband can initiate prosecution. In the case of Sowmithri Vishnu versus Union of India 1985 it was held by the Supreme Court that section 497 of the Indian Penal Code violates articles 14 and 15 of the Constitution of India which differentiates between a man and a woman. They stated that section 497 of the Indian Penal Code gives the right only to the husband and not the wife of the offended to initiate criminal proceedings against them. After this, the judgment of V.Revathi versus Union of India 1988 came where the Supreme Court upheld the constitutionality of section 497 of the Indian Penal Code along with section 198 of The criminal procedure code and said that it was not discriminatory. On September 27, 2018, the Supreme Court in its landmark judgment in the case of Joseph Shine versus the Union of India struck down the 158-year-old Victorian Morality Law against adultery. In the judgment, the Supreme Court held that adultery is no longer a crime in India and it is a right of an individual to engage in sexual activity with the person of their choice and it should be shielded from criticism and legal action. They also said that the husband is not the master of the wife and there cannot be husband rule over the wife and Section 497 was declared to be outdated and unconstitutional.

How is adultery a ground for divorce now in India?

According to the Supreme Court and its landmark judgment in Joseph Shine versus Union of India, 2018 the act of adultery is no longer a criminal offense, and friction 497 is unconstitutional and no longer valid in India. So adultery is no longer a punishable offence but a civil remedy can be used to accomplish the goal and that should be enforced. So you can demand a divorce from your spouse if they indulge in an adulterous act with any other man or woman. Section 13(i) of the Hindu Marriage Act states that ‘living in adultery’ is a ground for divorce. It is very difficult to maintain and live in a marriage where your husband or wife has cheated on you with another person. Adultery can be cited as a ground for divorce and the burden of proof or the burden of proofing the act of adultery lies on the person who makes the allegation. The party demanding divorce on such grounds must prove that the defendant has indulged in an adulterous act with another person. Adultery is equivalent or to be precise is like and synonym for cheating and it is really difficult to live with a person who has cheated you and disgraced such a sacred relationship. If the partner wants they can also claim monetary relief from the accused partner through a civil plaint for the mental and emotional breakdown that they have to go through because of such an act by their partner. It is really difficult for a partner to accept and live with a partner whose sight reminds him or her of the act in which they have indulged. So a person can claim divorce from their partner based on adultery and it is a sufficient ground for divorce or judicial partition if proven in a court of law.

How society sees adultery

Even though the Supreme Court has de-criminalized adultery, it is seen as an offense by society. Marriages have always been considered very pure, pious, and sacred in Indian society. It is seen as a unification of two bodies, two souls, and two families. Society plays a big role in marriages as they witness this pious ceremony. Marriage is accepting your partner in front view society and it gives you a respectable place in society also the children born out of valid marriages are accepted by society unlike the children born out of adulterous relationships who are not accepted and are even sidelined by society. Indian society has still its roots attached to ancient times. Marriages are a way of getting acknowledged as partners in society. In Indian society cohabiting and having sexual relationships before marriage is not allowed so how can the society accept adult trust relationships where a married man or married woman has a sexual relationship with another man or woman even when they have sworn loyalty to their partners? Society does not accept adultery and not the offspring born out of such relationships.

Conclusion

The perspective of the young people of the country is changing and even the courts try to pass a judgment seeing the current situation, circumstances, and the changing time. Even though the Supreme Court has ruled adultery as a non-punishable offense, it is still an offense in the eyes of ety. It is wrong towards the partner to whom you have been betrothed and married. The spouse cannot initiate criminal proceedings against such a partner but it is a ground for divorce and civil proceedings can be initiated against them. Adultery is allowed legally in India but still, it is socially unacceptable, and no doubt it should be. Even though you can’t legally punish that person the partner can still opt for divorce and separation from such partner based on the commencement of such act by him or her.