There is a big confusion among people regarding ground on which the divorce can be filed in court when wife or husband has extra martial affair.
There are two grounds on which the situation can be address one is Adultery and other is cruelty.
Now depending on the evidence the above question can be answered.
Now on the ground of adultery the evidence required is bit strong and her are some case laws
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;
Divorce on Adultery
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 crueltyground 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.
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.
In case of Extra Martial affair
In the case of extra martial affair the burden of proof is not that strong the main difference is here you do not have to show physical intimacy proof.
In H Vs. W it is held that the trial court had made a mistake in assesment with regards to evidence the petitioner had infact filed the divorce on the ground of cruelty and not adultery and evidence is different. The court admitted greeting cards and other material like letter and granted divorce on ground of cruelty. Now this judgement is not available online I am publishing extract.
Now another good judgement holding in this field is Barnali sen Vs. Debashish Sen
From the evidence adduced on behalf of the respective parties it is quite clear, as observed by the learned trial Court, that the appellant was not leading an unblemished life. Even if the evidence of P.Ws. 1, 2 and 3 is treated with circumspection, there is no reason to disbelieve P.W.4, an elderly lady, who quite candidly stated that at the time of her oral testimony she had no sympathy for her daughter-in-law. She too deposed of how Burki Saha’s mother and sister came to her house and threatened her and other members of her family about the appellant’s relationship with Burki Sana which compelled them to shift to the respondent’s unfinished flat at Manicktala. She also stated that even after the family shifted to Manicktala from Paikpara, the appellant did not change her ways and continued to roam outside the house.
57. The evidence of P.W.4 completely supports the case of the respondent, and, on the other hand, it is highly significant that none of the appellant’s family members came to depose or support the appellant’s case. Such conduct is hardly expected from the family members of an Individual whose married life was at stake in the suit, unless they had wilfully chosen to stay aloof which casts a shadow over the simplistic defence taken on behalf of the appellant that the respondent had filed the suit for divorce as she was unable to satisfy his sexual appetite after her repeated operations, including removal of her uterus, which left her in continuous pain.
58. The general view adopted by the Supreme Court and the High Courts is that cruelty against a spouse must be specifically pleaded and such acts of cruelty should be discernible from the evidence adduced, the standard of proof being of a lesser degree than a criminal trial.
59. In our view, the preponderance of events which appears from the evidence adduced by the parties clearly supports the case of mental cruelty made on behalf of the respondent husband who appears to have been compelled to file the suit for divorce after a series of incidents where the marital fidelity of the appellant came to be questioned and the marital ties came under severe strain. In our view, the circumstances were sufficient to establish mental cruelty suffered by the respondent on account of the actions of the appellant.
Conclusion-: In Adultery if you have an absolute proof of physical intimacy then only it is the best way to go on this ground otherwise do not do any mistake to go on ground of adultery if there is only an affair.