Concept of adultery under Hindu Marriage Laws
Authored By- Munis Nasir
Extramarital Affair, Direct Evidence, Adulterous Intercourse, Sacrament Arrangement, Judicial Separation, Unconstitutional
In India marriage is considered to be of sacred relation between husband and wife. Further, in Hindu Religion, marriage is considered to be of permanent nature which remains endless for the lives in the future. Adultery is something that is defined as having sexual relations of a married person with a person other than the spouse. Under the Hindu Law, adultery stands as a perfect ground for judicial separation and divorce between the married couple.
Adultery can be defined as, having sexual relations between a married person and someone other than the spouse. In every society, written or customary prohibitions exist against adultery. However, the rules may vary from society to society. There are many societies where marriage is considered to be a less-valued arrangement and where the extramarital affair is hardly condemned.
Adultery as a general rule can be proved on the basis of:
(1) Circumstantial evidence
(2) Evidence as to non-access and birth of children;
(3) Contracting venereal disease;
(4) By evidence of visits to the house of ill-repute;
(5) Decrees and admissions made in previous proceedings; and
(6) Confessions and admissions of parties
It is not necessary to prove adultery by direct evidence as it varies from case to case. However, the evidence needs to be of such nature that it would lead a reasonable man to the conclusion that the offence has been committed.
In the case of Patrick Donald Stracey v. Eileen Stracey and Another, the Assam High Court held that if adultery is alleged as the ground for dissolution its proof beyond a reasonable doubt would be necessary. Adultery from its very nature is a secret act. Direct evidence of an act of adultery is so difficult to obtain that insistence on it by the Courts may well amount to a denial of the protection of marital rights. Couples may not get caught in the act even if indulgence in adulterous intercourse continues for a long time. Adultery may be presumed when guilty attachment existed and there were opportunities for adulterous intercourse.
Hindu Marriage Act, 1955 on adultery
In India, a marriage ceremony is considered a very sacramental arrangement between a man and a woman. Further, as per Hindu religion, marriage is considered to be a permanent bond between the husband and the wife which is unbreakable in nature, not only for the present life but also for the next lives. Thus, the Hindu Marriage Act was incorporated for the sole reason to provide justiciable rights to the husband and the wife.
As we know that adultery is defined as having sexual relations between a married person and someone other than the spouse. Similarly, adultery under Section 13(1) (i) of the Hindu Marriage Act, 1955 is defined as when a man or a woman who is married as per Hindu Marriage Act, 1955 have voluntary sexual relations which are outside the wedlock. Further, adultery under the Hindu Marriage Act, 1955 fits as the perfect ground for judicial separation and divorce. Judicial separation is an important aspect under the Indian marriage laws, providing an option to the married couples to introspect their married life before going through the divorce proceedings.
Section 10 of the Hindu Marriage Act, 1955, deals with the subject of judicial separation. It provides that either party to marriage whether solemnized before or after the commencement of this Act, may ask for a judicial separation by way of presenting a petition in court on any of the grounds specified in sub-section (1) of section 13, and in case of a wife, also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
Recently in the year 2018, Section 497 of the Indian Penal Code along with the part of Section 198 of the Code of Criminal Procedure was held unconstitutional and was struck down.
Section 497 IPC
Section 497 of IPC says that “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”.
For the repeal of the Section 497 IPC, a petition was filed by Joseph Shine before the Supreme Court in December 2017. Shine in his petition argued that the 158-year-old law was discriminatory on the grounds that law was unjust, illegal and, violated certain fundamental rights of the citizens.
The Centre had favoured control of penal law on adultery on the fact that it causes a public wrong and further mental pressure to the spouse, children and the family. Moreove,r on August of 2018, the Supreme Court was of the view that the law on adultery related provisions in the IPC was anti-women and old.
Justice D.Y. Chandrachud stated in his judgment that Section 497 IPC deprives a woman of agency, and autonomy and destructive of a woman’s dignity. Further, he said that “A woman loses her voice, autonomy after entering marriage and manifest arbitrariness is writ large in Section 497”.Moreover after Chandrachud, Justice Indu Malhotra stated that Section 497 “institutionalises discrimination”.
Therefore as per the changing dynamics and needs of the society, the Supreme Court struck down Section 497 IPC which talks about the punishment for adultery. It can be seen from the past that many laws were enforced and many were taken down due to many reasons.
A.I.R. 1957 Assam 66.  Section 10 of the Hindu Marriage Act, 1955  Section 13 of the Hindu Marriage Act, 1955  Joseph Shine v. Union of India, 2018 SC 1676  Supra note 4.