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Adultery as a ground of Divorce: A Comparison between Hindu and Muslim Personal Law

Adultery is defined under section 497 of the Indian Penal Code as "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 consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." It happens during the existence of a valid marriage. Adultery is a treated as a ground for divorce in many personal laws except in Muslim Marriage Act.

There are personal laws where the usage of the section differs i.e. in either Hindu or Muslim law. This provision was very gender biased from its initiation and has been regarded as discriminatory of article 21 infringing private rights of husband and wife. Under Hindu Law divorce has never been talked about historically as marriage is considered as a sacrament. But Adultery is taken as a crime which can be taken as a ground for divorce.

The petitioner has to prove it beyond reasonable doubt that the spouse has committed adultery with strong circumstantial evidence. Today under Hindu personal law adultery is a ground for divorce and judicial separation especially after 1976 amendment. Under Muslim law adultery is considered to be a grave immorality towards the spouse. A person is stoned to death committing adultery. A Muslim man can file for a divorce on the ground of adultery on showing some evidence whereas for women if there is any false accusation she becomes eligible to file for divorce and not in other cases.

This research paper will look into many other aspects with case laws regarding adultery as a ground for divorce under both personal laws. Marriage is considered as an indissoluble sacrament under Hindu and Christian personal laws but is considered a contract under Muslim law and Chinese Buddhists since its elements are such. In this project the researcher will look into the very aspect of adultery, case laws under Hindu and Muslim personal laws.

What Is Adultery

To understand adultery in a layman's language, then it is developing voluntary sexual relationships with any other woman or man other than the marital spouse. Earlier this was considered a heinous crime. In the code of Hammurabi1 , on committing the offence of adultery a person was drowned to punish him/her for death. In ancient Roman and Greek culture only women were killed and no men were punished.

But the culpability was equal for both men and women in Shariat law by pelting stones to death, still this practise is prevalent in Iran and Afghanistan. It is a ground for divorce under fault divorces, where one party is necessarily at fault and can be blamed for the marriage to get dissolved. In bible adultery is said to be occurred when even a look at a woman with lust occurs. At some places it is considered a crime whereas at other places it's not. The defence available to a person under the offence of adultery is to show that the sexual act never happened or no consummation took place. Mainly incriminating evidences are called circumstantial evidence that is used to look into the very facts of the cases and decide accordingly.

Occasionally, adultery has been successfully asserted as a defense to the crime of murder by an individual charged with killing his or her spouse's lover. Courts are loath, however, to excuse the heinous crime of murder on the ground that the acc used party was agitated about a spouse's adulterous activities. However, individua ls who kill their spouse after catching him or her committing adultery may be abl e to rely on a heat of passion defense, and thereby face prosecution or conviction for Manslaughter, rather than first degree murder.

Adultery as a ground for divorce under Hindu law

As per Hindu Marriage Act 1955, adultery is defined as when a man or a woman is married but they have voluntary sexual intercourse outside their marriage with any 1 Babylonian code of law of Mesopotamia, dated about 1754 BC.  other male or female. It is a valid ground for judicial separation and divorce2 under this Act. Under section 10 of the Act, even a single act will entitle the other party to seek judicial separation.

The vital part to constitute adultery is sexual intercourse and not caressing, talking or getting intimate with the other spouse constitutes adultery. For example, if a man has a void marriage and marries other woman but continue to have sexual relationship with his first wife, it will make him liable for adultery and the second wife can file for divorce under section 13 of the Act.

Adultery can be proved by under the following grounds:

  • Circumstantial evidence
  • Evidence of birth of child
  • Contracting venereal diseases
  • Admission or decrees of parties that should be corroborated
  • Visits of houses of ill-repute Though adultery related cases in Indian courts take a very long time to get settled, there are still some exceptions to the rule where the decision doesn't take much longer time, such as:
    • Adultery when proved with the person involved
    • Adultery by husband just after marriage
    • Adultery by women getting pregnant
    • Aggravated adultery by desertion or cruelty on the wife
    • Intercourse with wife's sister or maid.

Petitioner has the responsibility to prove the case, as he is the one who files and that too beyond any reasonable doubt. But if the petitioner has settled the marriage or the relation between each other after knowing that the husband or wife was in an adulterous relationship, then any petition against the same cannot be filed or accepted by the court. In this case the marriage is said to be condoned by the petitioner. Mostly adultery is dealt as a civil suit and criminal case.

These case laws will make the understanding more lucid: 2 Section 13 of HMA, 1955

  1. Elam Plakkat Mathew Alias Joly ... vs Mulam Kothrayil Kochurani Alias 3

    Facts:
    A three judge bench, under Calcutta jurisdiction. In this case husband is the petitioner and wife is the respondent. She was alleged to be the adulterer by the husband since after the solemnization of her marriage (through Christian rites) with her husband in 1996, she was already pregnant by someone else's child, to whom she gave birth to after a year, in 1997. Husband has filed a petition in the family court, demanding an injunction. He stated that prior to filing of the petition she was living away from the petitioner since a year. On the basis of evidence produced by the petitioner the family court passed a decree of divorce to the marriage under section 10 of the Indian Divorce Act 1869, subject to the confirmation by the court under section 17 of the same Act. But the court on reviewing it found out that section 10 has not been validly used.

    Issue: Whether the petition filed by the petitioner under section 10 of the Act is correct or it should be filed under section 19 of the Act?

    Holding:
    The court after analysing the case, found out that under section 10 it talks about the decree of divorce passed by the court on the condition that adultery is found out after the solemnization of the marriage. Which can also be termed as a post-marriage lapse. But in the present fact scenario, it can be seen that the woman was in an adulterous relationship before marriage with another man. And the present petition under section 10 is difficult to be addressed for the issue.

    This analysis came to be done under the section 11 of the said Act, where a higher court reviews the judgment of the lower court. Court observed that decree may be granted but through a petition under section 19 of Indain Divorce Act and not section 10. Since it is the case of fraud played by the woman on the husband. These are the grounds available under section 19:
    1. that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
    2. that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity; 3 AIR 1999 Ker 354
    3. that either party was a lunatic or idiot at the time of the marriage;
    4. that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

    And the decree was set aside by the High Court.

    Ratio:
    The vital fact that was supposed to be known by the Husband was concealed by the wife prior to their marriage. Which is a direct case of fraud and not adultery since as the court pointed that adultery should be done after the solemnization of the marriage which has not been considered as a relevant contention here.

    The Section also provides that nothing in the said Section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. So the decision of the court to set aside the decree passed is correct and the petitioner is allowed to file a new petition for the same but under section 19.
     
  2. Sunil Eknath Trambake V. Leelawati Sunil Trambake 4

    Facts: under a single judge bench in the court of Nasik.The petitioner and respondent are husband and wife whose marriage was solemnized under Hindu Marriage Act, 1955, in 1986. They were blessed with a girl child. But some differences arose between them prior to 1995 and the husband filed the petition for divorce under section 13 of the Act. But the wife set up an issue stating that the husband had illicit relations with another woman in 1996 and also fathered a son born in 1997.

    The petitioner however denied the allegations. The respondent wife wanted a DNA test to be done to make it a case of adultery by the husband. Now the courts have to look for the final outcome of the case with the evidences available or tobe procured through DNA test. 4 AIR 2006 Bom 140

    Issue: Whether the DNA Test a proper method to find out the existence of an adulterous relationship of the Husband?

    Holding:
    The learned counsel for the petitioner alleged that DNA test is not required in the present case scenario as it is quite personal and against the principles of natural justice. Deoxyribonucleic acid test, which is commonly known as 'DNA' test, is useful to determine the question of disputed paternity. Usually in a case where there is difficulty in finding out the answer to the question of paternity, DNA test is suggested by the courts but here there was no requirement sought.

    Also, if the test comes out to be negative it leaves a negative impact on the lives of the mother and child as also noted in the case of Goutam Kundu v. State of West Bengal and Anr. But at the same time courts order for the test if it is in the best interest of the child. In the present case the wife is not talking about DNA test for the child but for her own interest, to prove adultery by the husband. So therefore she was not entitiled for divorce.

    The court has set aside the case for DNA test. So the petition of the husband is allowed. Trial court was directed to proceed with the hearing and dispose off the case as soon as possible.

    Ratio: the court held the decision good. Since just to prove adultery infringing someone else's right to be heard whether a minor or major is in itself a gross violation. All the reasoning given by the judge were satisfactory and in the interest of all the parties negating the self interest of the wife. In the present case the ground available was circumstantial evidence which was provided with quite ambiguity and advantage in own case. This case explains and sets an example that how not every evidence is taken into consideration. It depends on case to case basis. 

Adultery as a ground for divorce under Muslim Personal law

Under Muslim Law adultery is considered as the infringement of matrimonial bond and is considered a crime under the religion by Allah as mentioned in Quran. Zina is the term in Arabic which mean premarital or extramarital affair. It is punishable as it is considered as one of the most heinous crimes, or the offender may be punished to death for committing it.

Quranic verses prohibiting adultery as said by Allah are:

"Do not go near adultery. Surely it is a shameful deed and evil, opening roads to other evils." "Say, 'Verily, my Lord has prohibited the shameful deeds, be it open or secret, sins and trespasses against the truth and reason."

"Under Islamic laws in an Islamic state it is not lawful to shed the blood of a Muslim except for one of the three sins: a married person committing fornication, and in just retribution for premeditated murder, and [for sin of treason involving] a person renouncing Islam, and thus leaving the community [to join the enemy camp in order to wage war against the faithful]." In Quran it is considered so diabolic for the only reason that it affects the marital relation between the spouses and destroys the house.

It leads to betrayal and destructs the loyalty and faith required to keep the family united. Knocks off the balance and the person committing the sin has to face the fury of Allah. Fornication and infidelity are regarded as unpardonable and reprehensible sins and regarding adultery, the Prophet said:
"When adultery and promiscuous behavior becomes rampant in a nation, Allah will expose them to His chastisement and He will send upon them such (strange) diseases that their own ancestors never heard of."

If they commit adultery they are stoned to death as the punishment. Men are exceptional in this case since a married man having an adulterous relationship with an unmarried woman is not guilty of it. But if a woman is found committing it then she is guilty and stoned to death.  If the husband levies false charges on woman of adultery and they turn out to be false then in that case she can ask for divorce for putting false allegations on her. This is called lian. If the guilt that is put up by the husband as allegations on the wife is proved wrong then he is striped with 80 stripes for slander. For lian the requirement is there should be husband and wife who are of sound mind and have attained puberty

And the procedure that follows is: The procedure for lian is as follows:
"the husband should bear witness four times saying each time, 'I attest by God that I was a speaker of the truth when I cast at her the charge of adultery, and he should then say the fifth time, the curse of God be upon me if I was a liar when I cast at her the charge of adultery'. The woman is then to bear witness four times, saying each time, 'I attest by God that he is a liar in the charge of adultery that he has cast upon me', and saying the fifth time, 'the wrath of God be upon me if he be a true speaker in the charge of adultery which he has cast upon me".

Then comes the stage of retraction by the husband, where there is no divorce granted to the wife. After the arrival of Dissolution of Muslim Marriage Act, 1939 valid retraction can be done if: the husband has alleged the wife to be in adultery, the allegations are false, and he has retracted before the end of trial court. But if proved that the charges were false then she is entitled for the decree. But the cases that come to the court are dealt with a lot of concentration since their law are specific and intertwined because of the religion they follow.
  1. Nurjahan Bibi v. Md. Kajim Ali 5

    Facts: Wife is the petitioner in the present case. It is the second appeal in a single judge bench, as in the first appeal the decree of divorce was granted by the Munsif but was set aside by the ADJ, Murshidabad. She wanted dissolve the marriage with her husband on the ground that he accused her to be in an adulterous relationship with her brother Asgar. She wants to end it on the basis of Lian, since there marriage 5 AIR 1977 Cal 90  was solemnized under Mohammaden law. Munsif granted divorce taking into consideration pleadings of the wife that she was always devoted towards her husband also on the ground that defendant failed to prove guilt of wife. But on consideration by the judge he found out the allegations werenot enough to prove adultery and it is no the case in itself of adultery so no divorce should be granted. The decision of lower court was quashed.

    Issue: Whether the decision quashed by ADJ was in good interest against which the second appeal has been filed?

    Holding: the court found out that the decision taken by the munsif was based only on surmises and the was not considering the evidences available to him. The husband proved that the wife had an affair, he proved that he saw them in a compromising situation, he never retracted from the allegations he made, there is no misconduct from his side that is acceptable and is regarded by the court. Same facts and holdings were witnessed in Zafar Hussain v. Ummat-ur-rahmaan 6. In the result, appeal was dismissed.

    Ratio: the courts correctly came out with a decision considering each and every evidence and not just the decree passed by the Munsif. Mohammadan law has very intricate rituals and rites and that doesn't apply in the particular case. There is a case by case analysis that decides the outcome. In Saju v. Maksed7 case, they were married in 1940 they were Muslims. But the husband in 1944 charged woman of bigamy and adultery. But had no evidence to prove the guilt. Wife on this wanted a divorce but because the husband loved her and did not want to leave her, he retracted. So the divorce was not granted.

Analysis 6 49 Ind Cas 256 7 1945 Cal WN 122

After going through both the personals laws, it is quite evident that no one method is followed to simply find out a way to define adultery. The definition what they say is same but the way it is meted out under the different personal laws depends. In both the laws marriage is considered to be heart of all the relations whereas divorce is regarded as bad that may lead to break the ties and spousal healthy relationships affecting children and lives of people associated with the union. Certain theories got evolved under Hindu law then, same was witnessed under Muslim law when divorce was considered as one of the grounds.

Adultery was recognized as one of the grounds, where anyone found guilty of it will make the other one eligible to ask for divorce. In Dastane v. Dastane case the proposition that it should be proved beyond reasonable doubt made a difference. Even if a male and female lie naked on a bed they cannot be considered to be liable under adultery since it requires penetration and not otherwise. Section 10 of Hindu Marriage Act allows a person to get a decree of judicial separation.

In Islam only first time divorce was granted. Though it was granted in the rarest of the rare cases, prophet considered it a sin. But after the introduction of Dissolution of Muslim Marriage Act, 1939 Muslim women were also allowed to divorce their husbands on false allegations. After going through the cases it is quite clear that the finding of adultery purely depends upon the cases and the facts that lead to such happenings. Then only the courts are in a position to decide a case and they then act as precedents making way for understanding the concepts clearly. There no such harsh differences between both the religion. It's just the way the cases are taken into consideration.

Conclusion and Suggestion
1975 AIR 1534  Under both the laws marriage as a union is considered to be of utmost importance. It is a sacrament under Hindu law whereas it is a Contract under Muslim Law. It is all about the evolution where under Muslim law women were not considered an entity entitled to get a decree for divorce. But now they have a rescue at their perusal. Adultery is one such ground that should be condemned as it leads to committing a sin.

Though in a recent judgment of 2018, Joseph Shine v. Union of India 9 adultery was turned down for being unconstitutional under section 497 of IPC. It was against the constitutional structure which was not even gender neutral. Now adultery doesn't stand as a crime anymore. These are the recent developments that have taken place in the recent times. The suggestion would be to consider adultery more cautiously and to set some standards to be considered in Muslim law.

Muslim must be more gender neutral giving rights to women more. Husbands are possibly in a far better position as they can marry more than twice and still are protected under their laws. This sort of discrimination has to be removed and it should be made more gender neutral with more of laws specific. 9 2018 SCC OnLine SC 1676.

Bibliography
Statues:
  • Hindu Marriage Act, 1955 (Bare Act)
  • Dissolution of Muslim Marriage Act, 1939
  • Indian Penal Code, 1860
Cases:
  • Elam Plakkat Mathew Alias Joly ... vs Mulam Kothrayil Kochurani Alias
  • Sunil Eknath Trambake V. Leelawati Sunil Trambake.
  • Nurjahan Bibi v. Md. Kajim Ali.
  • Zafar Hussain v. Ummat-ur-rahmaan
  • Saju v. Maksed
  • Dastane v. Dastane

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