Adultery section 13(1)(1) of the Hindu Marriage Act

section 13(1)(i) of the Hindu Marriage Act, "living in adultery", is a ground for divorce. This
should be contrasted with "adultery", which is the ground of divorce usually mentioned in

legislation in other countries and also in the Special Marriage Act.

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.

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
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:
that the respondent was impotent at the time of the marriage and at the time of the
institution of the suit;that the parties are within the prohibited degree of consanguinity
(whether natural or legal) or affinity; 3 AIR 1999 Ker 354that either party was a lunatic or
idiot at the time of the marriage;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.

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.