Adultery in India
- A ground for Divorce
Either party to the marriage may
present a petition for divorce under cl. (i) of sub-sec. (1) of s. 13, on
the ground of adultery of the respondent. The expression 'living in
adultery' used in old s. 13(I)(i) meant a continuous course of adulterous
life as distinguished from one or two lapses from virtue. It would not be
in consonance with the intention of the Legislature to put too narrow and
too circumscribed a construction upon the words 'is living' in (old) cl. (i)
of sub-sec. (1) of s. 13 of the Act. On the other hand, it was clear that
too loose a construction must also not be put on these words. For
attracting the operation of these words, it would not be enough if the
spouse was living in adultery sometime in the past, but had seceded from
such life for an appreciable duration extending to the filing of the
petition. It is not possible to lay down a hard and fast rule about it
since the decision of each case must depend upon its own merits and turn
upon its own circumstances. But it is clear that for invoking the
application of (old) cl. (i) of sub-sec. (1) of s. 13, it must be shown
that the period during, which the spouse was living an adulterous life was
so related from the point of proximity of time, to the filing of the
petition that it could be reasonably inferred that the petitioner had a
fair ground to believe that, when the petition was filed, the respondent
was living in adultery. By using the words 'is living in adultery' the
Legislature did not intend to make such living co-extensive with the
filing of the petition. The identical expression of 'living in adultery'
is to be found in s. 488(4) the Code of Criminal Procedure (old) and in s.
125(4) of the Code of Criminal Procedure (new). This expression implies
that a single lapse from virtue even if true will not suffice, and it must
be shown that the respondent was actually living in adultery with someone
else at the time of the application. Living in adultery is different from
failing to lead a chaste life.
The expression 'living in adultery' refers to an outright adulterous
conduct and the respondent lived in a quasi-permanent union with a person
other than the petitioner or the purpose of committing adultery. illicit
conception, living as concubine or kept as mistress does not mean living
in adultery. After the commencement of the marriage Laws (Amendment) Act
1976, even a single act of voluntary, sexual act by either party to the
marriage with any person other than his or her spouse will constitute
ground for divorce for the other spouse. But under the old law an isolated
act of adultery did not attract the provision of s. 13(1)(i) of the Act,
but provided a ground for judicial separation. To maintain a distinction
between divorce and judicial separation - e court should even in the
context of the Marriage Laws (Amendment) Act 1976, put suitor construction
for granting the decree of divorce than the decree of judicial separation.
It is because the relation of the husband and wife has to be considered
not only from the point of view of the welfare of the husband and wife but
also of the children of the marriage.
In case of adultery direct proof is difficult to get and one has to rely
for proof thereof on circumstantial evidence and the same may be
sufficiently proved from which adultery maybe inferred. The burden of
proving adultery in a matrimonial case is on the person who makes the
allegation. The standard of proof in "proceedings under the Act being
initially of a civil nature is by preponderance of, probabilities and not
by proving it beyond reasonable doubt. General evidence of the ill-repute
of the husband or of the lewd company that he keeps, or even that he knows
the addresses of prostitutes and was seen with doubtful women, would
neither prove nor probabilise adultery. Adulter , as a general rule, is
proved by presumptive proof based on:
(i) circumstantial evidence,
(ii) evidence 0 non-access and the birth of children,
(iii) Contracting venereal disease,
(iv) evidence of visit to houses of ill-repute,
(v) admissions made In previous proceedings,
(vi) confessions and admissions of the parties Mere suspicion is not
There must be circumstances amounting to proof that opportunities could be
used, such as the association of the parties was so clear that adultery
might reasonably be assumed as the result of an opportunity for its
A. Blood Grouping Test And Standard Of Proof In
Presumption Of Parentage:
If the husband has established that he had no sexual intercourse with his
wife, he need not prove further that he had no opportunity. The blood
grouping test is a perfect test to determine the question of disputed
paternity of a child and can be relied upon by courts as a circumstantial
evidence. But no person can be compelled to give a sample of blood for
blood grouping test against his will and no adverse inferences can be
drawn against him for this refusa1. The value of blood test for
establishing as well as eliminating the paternity of a particular person
is increasing in modern time.
In ordering the blood test for determining the paternity of a child, the
court should take into account the interest of the child. While the court
should be alert to exercise its protective jurisdiction on behalf of the
child, it shall give uppermost importance to the interest of justice. It
is best to know the truth even if it results in bastardizing a child. The
importance of blood tests for establishing, and not merely eliminating the
paternity of a particular man is felt much in modern time. It has been
estimated that by using a combination of blood group systems there is a 93
per cent chance of excluding a man alleged to be the father of the child.
But the Law Commission in England (points out that such testing will not
always provide a conclusive answer. But where the blood test shows that
the husband along with about 11 per cent of western European males could
be the father, the onus lies heavily on the husband to prove that he is
not the father. In many cases disputed parentage is solved by availing the
opportunity of forensic serology.
In the 69th Report the Law Commission3 has observed that blood tests may
act negatively. Its result cannot conclusively establish the paternity of
a child. At common law the presumption of parentage could be rebutted only
by evidence beyond reasonable doubt, but s. 26 of the Family Law Reforms
Act, 1969 lays down that the standard of proof may be the balance of
probabilities. In some decisions, however, it is suggested that the
standard of proof should be more than the ordinary civil standard of
balance of probabilities. In S v S Lord Reid said that "even weak evidence
against legitimacy must prevail if there is no other evidence to
counterbalance it". If it can be shown that the husband have had the
intercourse, but yet he is not the father, because the husband was sterile
and evidence may also be adduced by blood test or DNA profiling.
In India s. 112 of the Evidence Act 1872 lays down that if a person is
born during the continuance of a valid marriage between his mother and any
man or within two hundred and eighty days after its dissolution, the
mother remaining unmarried, it shall be the conclusive proof of his
legitimacy as a son of that man unless it is proved otherwise. The
standard of proof for rebuttal of legitimacy is beyond reasonable doubt
and not merely balance of probability.6 In Goutam Kundu v State of West
Bengal the Supreme Court has laid down the propositions of law as to the
permissibility of blood test to prove paternity which are as follows:
(1) The courts in India cannot order blood test as a matter of course.
(2) Whenever applications are made for such prayer in order to have roving
inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must
establish non-access in order to dispel the presumption arising under s.
112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the consequence
of ordering the blood test, whether it will have the effect of branding a
child as a bastard and the mother as an unchaste woman. (5) No one can be
compelled to give sample of blood for analysis.
B. Philosophy Underlying S. 497, I.P.C.
The philosophy underlying the scheme of the provisions of s. 497, I.PC. is
that as between the husband and the wife social good will be promoted by
permitting them to "make up" or "break up" the matrimonial tie rather than
to drag each other to the criminal court for the offence of adultery. They
can either condone the offence in a spirit of "forgive and forget" and
live together or separate by approaching a matrimonial court and snapping
the matrimonial tie by securing divorce. They are not enabled to send each
other to jail. Perhaps it is as well that the children (if any) are saved
from the trauma of one of their parents being jailed at the instance of
the other parents.
C. Instances Of Adultery.
In the following cases the plea of
adultery has been upheld by courts:
(a) Wife had been absenting herself from her house for some times and seen
in the company of a stranger to the family of her husband without
reasonable explanation or any explanation.
(b) Unrelated person found alone with wife after midnight in her bedroom
in actual physical juxtaposition.
(c) Child born beyond the period of twelve months after the cessation of
marital consortium between the spouses.
(d) Evidence on post-suit adultery is admissible to prove and explain
other evidencegiven in the case and to show the character and quality of
the previous acts.
(e) Paramour's letters indicating facts of illicit relationship.
(f) Admission of adultery by wife through letters.
(g) Testimony of disinterested witnesses to the effect that they had seen
the respondent sleeping together with another person in nights is
sufficient to prove adultery.
(h) A solitary instance of voluntary sexual intercourse by wife with other
person is enough.
(i) Wife left her husband and was living at her parent's house. The
allegation by husband that she became pregnant there without his access to
wife. Statement by wife that husband used to visit her parents house and
stayed overnights and cohabitated with her. Wife failed to examine her
parents or any other witness in support of her statement. There was no
interference with the decree of divorce granted against the wife.
D. Instances Of No Adultery
In the following cases the plea of adultery has been rejected by courts.
(a) The presence of the wife in a restaurant cabin with her blouse and
brassiere unhooked and the co-respondent holding her breasts in his hands
is not sufficient to prove adultery.
(b) No conclusion of adultery where the wife was found going on the
scooter of some other person or talking with someone other than her
(c) No corroboration to prove adultery of wife when she remains in a room
with door though shut but unbolted at 10 p.m. with another person when the
mother of the husband and five grown-up children were present in the
(d) Mere fact that some male relation writes letters to a married woman
does no necessarily prove that there was illicit relationship between the
writer and recipient of the letters.
(e) Wife becoming pregnant after husband had undergone vasectomy operation
without proving that the operation was successful, no illicit relationship
of wife can be presumed.
(f) Serious doubts may be raised as to the allegation of adultery of wife
when the husband makes no such allegation in the notice for divorce prior
to the filing of the suit.
(g) Where the husband files the petition for divorce 8 years after he came
to know that his wife has committed adultery and has not explained the
reason for the inordinate delay alone.
(h) Mere presence of the alleged adulterer in the bedroom of the parties
does not constitute an adulterous act.
(i) Masturbation of co-respondent by wife is not adultery.
(j) Allegations of the husband that he saw his wife talking with other
persons on three occasions in daytime without any physical contact are not
E. Hotel Cases.
Where the adultery is alleged to have been committed in a hotel or a
boarding house with an unknown person, the court views such case with
suspicion. There is need in some cases for the petitioner to prove a
background of an adulterous association. The court makes a finding of
adultery where a hotel bill is produced and a witness from the hotel is
called to say that the respondent and a person of the opposite sex were in
F. Hotel Bill Cases.
When a marriage had hopelessly broken down and the spouses wanted divorce
on the ground of adultery, they would arrange that the husband should
'provide the grounds for divorce', which meant that he would go to a hotel
with a woman and send the hotel bill to his wife. The courts used to grant
decree of divorce on such evidence inferring adultery of the husband. It
might happen that the husband had never visited any hotel with any woman.
G: Adultery After Petition: Ante-Nuptial
A petition for divorce on the ground of adultery should be based on
adultery committed prior to the presentation of the petition. But evidence
of acts of adultery subsequent to the filing of the petition is admissible
for the purpose of drawing inference by the court about the course of
conduct of the respondent. But there may be necessary to file a
supplementary petition incorporating those subsequent acts of adultery.
The general rule is that it is not permissible to plead ante-nuptial
intercourse, because it is said that marriage operates as an oblivion to
all that has passed. But ante-nuptial intercourse may be pleaded where
adultery is charged with the same person with whom ante-nuptial
intercourse took place. Cohabitation between the spouses prior to the
marriage is relevant in relation to ancillary relief. This suggests that
other relations prior to the marriage with other persons may likewise be
relevant on the facts of a particular case.
H. Condonation Of Adultery
The fact that the husband cohabited with the wife even after the knowledge
that she had been guilty of cohabiting with another person would be
sufficient to constitute condonation. The husband's condonation of
adultery disentitles him to decree of divorce, even if such condonation is
for the sake of dignity of the family.