Divorce on Adultery
Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955
13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;
Now How to prove Adultery in Indian Courts?
The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the cruelty ground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.
Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.
What are the facts that can prove adultery?
Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.
But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary sexual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.
Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man? that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.
34. To address the aspect whether ethical and moral considerations should be factored-in to decide admissibility of evidence, attention may be drawn to the observation of the Supreme Court in Pooran Mal (supra), where the court said that when there is no express or specifically implied prohibition in the Constitution, it is uncalled for and unwarranted to invoke the spirit of the Constitution to exclude evidence. Equally so, in the face of the settled rule of evidence as augmented by section 14 of the Family Courts Act, it would be unwarranted to bring into the picture subjective and undefined ethical and moral values or considerations, to decide if evidence should even be receivable by a Family Court. Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be (i) in breach of section 14 which unequivocally expresses the intention of the Legislature; (ii) in breach of settled principles of evidence; and (iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values. Such construction would have more potential for mischief than possible salutary effect.
35. If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14 would be rendered nugatory and dead-letter. It must be borne in mind that Family Courts have been established to deal with what are essentially sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties. If section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then section 14 may as well be effaced from the statute. And yet, falling back upon the general rule of evidence, the test of admissibility would only be relevance; and accordingly, even ignoring section 14, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be served by emasculating the salutary provisions of section 14 of the Family Courts Act by citing breach of privacy. Looking at it dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst, it is the process of collection of evidence that would be tainted
Sachin Arora vs. Manju Arora (10.05.2023 – DELHC) : MANU/DE/3057/2023
The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.
Advocate Nitish Banka