Voluntary sexual intercourse between a married person and someone other than the spouse is what amounts to adultery and considered as such a fault ground of Divorce under the Hindu Marriage Act.
The Supreme Court of India in terms of a Constitution Bench Judgment in the case of Joseph Shine Vs. Union of India (2019) 3 SCC 39 struck down section 497 of Indian Penal Code and ruled that Adultery cannot and should not be a crime holding that the said Section 497 is violative of article 14 of the constitution of India and it also violates the non -discrimination clause of article 15. It can thus at best be a ground for a civil offence, and a ground for divorce.
How to prove Adultery?
Some questions that may need to be formulated to address the above may be thus:
1. Do I need a Direct Evidence to prove adultery/sexual intercourse by the spouse?
It is unlikely that a direct evidence of adultery, such as an eyewitness account may be available.
Cheating spouses are usually very smart and maintain a low profile, so evidence of an affair like photos or video footage of a sexual encounter is extremely difficult to obtain.
A seasoned Private Investigator, however, may be able to collect a definite evidence, which may be admissible in the Court as per law.
It helps if you can find people who are willing to testify in court in support of the allegations and offer reliable witness account.
Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person is sufficient to prove adultery.
Other common types of direct evidence may include:
- videos, or
- a spouse’s admission.
2. What would be considered as Indirect evidence?
Circumstantial evidence may be defined as Indirect evidence and can be relied upon in the Court to prove adultery such as:
The respondent had the chance to commit adultery, such as being alone with an unrelated person after midnight in her bedroom, and given the situation, sexual intercourse was likely to have taken place.
Wife seen in the company of a stranger without reasonable explanation or any explanation or the said person found alone with the wife in actual physical juxtaposition.
In some cases, one can use bank or credit card statements showing the purchase of gifts for the paramour by the wife or for the lover by the husband, phone records showing phone calls between the two, copies of email and/or text messages between your spouse and his lover, and hotel and airline records related to any trips or vacations they took together.
Important & Crucial
It is important to combine the indirect evidence with the respondent’s desire and ability to commit adultery.
Remember, it is not enough to show that your spouse had the opportunity and desire to cheat. You must prove that he or she actually followed through with intentions.
Child born beyond the period of twelve months after the cessation of marital consortium between the spouses is a definite evidence of adultery / voluntary sexual intercourse and can be relied upon as a fault ground of divorce.
One solitary instance of voluntary sexual intercourse by wife with that other person is enough to bring home the point of adultery as a fault ground of divorce.
Additionally, an important aspect of introducing evidence, direct or indirect, in court is that you must show that you obtained the evidence legally, meaning thereby that the petitioner must submit and prove the source of obtaining such evidence. If you cannot authenticate the source of evidence, the court may not finally accept it.
Filing of a petition
A petition u/s Section 13 (1) (i) read with section 13 (1) (ia) of Hindu Marriage Act should be filed alleging besides adultery that such conduct of the respondent amounted to cruelty.
The petition may be filed before either of the Family Court of competent jurisdiction in the District where the Respondent resides or where the marriage between the parties was solemnized or where the Petitioner wife at the time of filing of the petition is residing.
In a recent judgement in the case of K.V. Prakash Babu Vs. State of Karnataka [2017 (11) SCC 176], however, the Supreme Court ruled that adultery does not constitute cruelty.
Therefore, I am only suggesting alleging about adultery as an instance of cruelty and to prove cruelty on other facts besides adultery.
For any clarifications, please email:
Mr. Rakesh Taneja
Advocate, Supreme Court of India