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Adultery is a serious ground for divorce
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Siddhartha Shah
A practicing advocate of Mumbai High Court. He specialises in Civil, Criminal, International and Matrimonial Laws. He opines on Indian Laws and the Legal System. Have a question? Click here...
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Every woman must know about her rights against "ADULTERY" - serious ground for divorce.
Adultery is not a criminal offence in all countries. In some countries, just as in UK, it is merely a civil wrong, entitling the aggrieved person to claim damages. But with regards to matrimonial laws it is a serious offence. The scope and ingredients of the criminal offence of adultery vary from country to country. Adultery may be committed by the wife or the husband.
Adultery is one of the strongest and one of the more serious grounds for divorce under all the marriage Acts mentioned below:
Hindu Marriage Act, 1955
Special Marriage Act, 1954
Indian Divorce Act, 1869
The clause is as explained, "Either of the spouse has, after the solemnisation of marriage, had a voluntary sexual intercourse with any person other than his or her spouse". Adultery is also a ground for judicial separation.
What Constitutes adultery ?
As in India Section 497 of the Indian Penal Code, 1860 which reads 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 the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
Thus under Section 497 of the Indian Penal Law :
- an adultery can be committed only by a man and not by woman.
- the person committing adultery must also know or should have reason to believe that woman with whom he had intercourse is the wife of another man, and
- the sexual intercourse should not amount to the offence of rape.
The complainant husband can only vindicate himself if he can establish the above, otherwise his complaint would fail. What is most significant in the penal offence of adultery is that invariably the husband takes his vengeance against the third person, i.e. the adulterer : though in some jurisdictions he may also be able to reap it against the wife. But in most cases the main target of his vengeance is the adulterer.
The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even as an abettor.
In this regard the matrimonial offence of adultery is different from the criminal offence.
In the matrimonial Court when a Petition is filed for the matrimonial relief of judicial separation or divorce on the ground of adultery, the main relief is sought against the spouse and not against the adulterer, though, in most systems, adulterer, if known is a necessary party to proceedings and must be made a co-party respondent.
In the matrimonial Court when a person accuses his spouse of adultery his or her main target is not the adulterer or adulteress, but the wife or the husband. Since both under Penal law and Matrimonial law, adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. What is also essential to establish in the matrimonial offence of adultery is that the sexual intercourse was willingly indulged into by the parties. If the wife can establish that she was raped by the co-respondent then the husband would not be entitled to divorce.
Definition of adultery in matrimonial law.
In adultery there must be voluntary or consensual sexual intercourse between a married person and another whether unmarried or married, of the opposite sex not being the other's spouse, during the subsistence of marriage. The sexual intercourse contemplated under the matrimonial ground of adultery is with a non-spouse. Thus intercourse with the former or later wife of a polygamous marriage (where polygamy is recognised) is not adultery. But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery.
Any one caught in the above mentioned situation can file the necessary applications and petition for obtaining divorce under the Matrimonial laws of our land in the appropriate jurisdiction of the place of marriage or residence to the Matrimonial Forum in India or have an option to make a criminal complaint invoking the penal sections under the Indian penal code in the appropriate Criminal Forum in India.
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