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Legal » Matrimonial-laws » Adultery-040621
The extra-marital affair and law

The extra-marital affair and law
The extra-marital affair or an adulterous relationship is one of the important and a principal ground for divorce under almost all the personal laws in India. The Concise Oxford Dictionary defines adultery as "voluntary sexual intercourse of married person with any person other than his spouse". The legal meaning of adultery adds another ingredient to this linguistic definition.

The Halsbury's Laws of England (10th Edtion); states the legal definition of adultery as follows: "For the purpose of relief in matrimonial jurisdiction, adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse." It must be very clearly understood that any sexual relationship before the solemnization of marriage is NOT adultery. A sexual relationship becomes an adulterous relationship only after marriage. A single adulterous act is enough to constitute a matrimonial offence entitling the other spouse to divorce. However, an attempt to adultery must be clearly distinguished from adultery, as such attempt shall only entitle the spouse to Judicial Separation.


Adulterer as Co-respondent
As a general rule, the pleadings of allegations of adultery must be specific and distinct. The particulars not only about the person with whom the adultery was being practiced but also about the place and time at which such adultery was committed should be given. (Dr. Dwaraka Bai vs. Nainan Mathew) Mere suspicion, hunch that the spouse has an extra-marital affair with someone is not sufficient. Law necessitates that all the adulterers who are known must be joined as co-respondents and must be named with specific allegations. They must be joined as necessary parties to the suit or the suit may fail on the ground of technical default of non-joinder of necessary parties. This is so because the Court watches over the interests of the Petitioner and the Respondent as well as the persons who are named as adulterers.

Standard of Proof
The charge of adultery requires strict proof. While the courts acknowledge that adultery by its very nature is generally a secret act where direct evidence is almost impossible. Madras High Court in the above cited case has observed that "It is unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. So, circumstantial evidence is all that can be normally forthcoming regarding adultery. The circumstantial evidence thus produced must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery." The Orissa High Court endorses this view of the Madras High Court by stating "To prove factum of adultery direct evidence is not necessary, it can be proved by oral documentary of circumstantial evidence from which the Court can draw inference beyond reasonable doubt that the opposite party had adulterous relationship with the third person."

Onus of Proof
As the law presumes innocence till the guilt is proved the party alleging adultery must bear the burden of proving the charge. The charge of adultery, in absence of any direct evidence, can be generally proved by producing presumptive evidence like; (a) circumstantial evidence; (b) evidence of non-access and birth of children; (c) contracting venereal diseases and (d) confessions and admissions. Calcutta (now Kolkata) High Court has opined that as 'character assassination is very easy to make but very difficult to prove; the courts, therefore, must ask for strong circumstantial evidence as well as independent corroboration having regard to the facts and circumstances of the case.

Corresponding Sections of the Indian Penal Code
Adultery is an offence under section 497 of the Indian Penal Code. However offence under this section can be lodged by the lawful husband of the female against the man who has adulterous relationship with her. The penal law differentiates adultery and rape on the basis of consent to relationship. When the spouse involved in such adulterous relationship also marries the adulterer then it amounts to offence of bigamy under section 494 of the Indian Penal Code. Under the criminal law the degree of proof required to prove both these offences is much more strict then just reasonable doubt and probability.

Jai Vaidya
Leading advocate at the Mumbai High Court
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