59

ADULTERY AS A GROUND OF DIVORCE IN HINDU LAW

Written by Kunal Garg

ABSTRACT

Adultery simply means having sexual intercourse with any married person other than with
spouse. The term varied from country to country. At some places adultery is when a woman
has voluntary sexual intercourse with any other man other than her husband, at other places
adultery is when a woman has sexual intercourse with a third person without her husband’s
consent. The central theme is sexual relation outside of marriage in one form or another. In
Indian Penal Code it is for the protection of right of a husband but in Hindu law it is considered
as a ground of divorce. Section 13(1) of Hindu Marriage Act, 1955 describes adultery as a
ground of divorce. If any married Hindu person found guilty of it he can be liable for divorce
under this section. In this research paper we will discuss about the term adultery and its
interpretation, its validity in India, adultery as a ground of divorce and its relevancy in Hindu
Marriage Act etc.

Keywords – adultery, sexual intercourse, sexual harassment, divorce, Hindu law, personal
laws, offence, punishment

RESEACRH QUESTION:

 What is adultery in Indian context?

 Why it is considered as a ground of divorce in Hindu law?
 Difference between adultery in Indian Penal Code and adultery as a ground of divorce.
 Judicial interpretation of the word adultery?
 Why women are not prosecuted for this offence?

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 60

ADULTERY IN INDIAN CONTEXT:

In India both marriage and criminal law have their own definition of the word “Adultery”.
Under criminal law it is considered as a punishable offence. Section 497 1 of the Indian Penal
Code defines the term adultery. This section says that any person who has knowledge or
sufficient grounds to believe that the person with whom he is doing sex is the wife of another
man without that man consent is guilty of the offence adultery under Indian Penal Code.
However it is not necessary that third person should be a married person. 2 The punishment of
this offence is maximum 5 years. Under this section only man can be prosecuted for this
offence. Wife is exempted from this liability. In Sowmithri Vishnu v Union3 of India the
Supreme Court said that “the law is that the wife who is involved in an extra-marital sexual
relationship is not a author of a crime but is a victim and the legislature considers it to be
offence against the sanctity of a matrimonial home, and the offence is generally considered to
be committed by a man.” In W. Kalyani vs. State Tr. Inspector of Police4 the Supreme Court
said that “wife cannot be punished even as an abettor - A woman makes her completely immune
to the charge of adultery and she cannot be proceeded against for that offence”. So in criminal
law, only men are liable for the offence of the adultery. Women are exempted from the liability
of adultery. But in Hindu marriage law the situation is different. In Hindu law it is considered
as a ground for both divorce and judicial separation. Under Indian Penal Code only husband
can file a case but under Hindu Marriage Act both the spouses can use it as a ground of divorce.
Section 13(1)(i)5 of the Hindu Marriage Act talks about adultery as a ground of divorce while

1
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, and shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not
be punish as an abettor.
2
Samraj Nadar vs Abraham Nadachi on 10 February, 1969, AIR 1970 Mad 434
3
AIR 1985 SC 1618, 1985 SCR Supl. (1) 741
4
(2011) 13 SCALE 154, 2011 (8) SLT 711
5
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 has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than
his or her spouse.

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 61

section 10(1)6 talks about adultery as a ground of judicial separation. These sections says that
any person who does sex with any other person other than his or her spouse then the other
person gets the right to file a petition of getting the decree of divorce or for judicial separation.
Under this clause either man or woman can file a petition for getting the decree of divorce or
for judicial separation. For getting the decree, the petitioner has to prove that there was sexual
intercourse by the respondent with a person other than his or her spouse.

ADULTERY IN HINDU LAW:

Before the existence of Hindu Marriage Act divorce was unknown to the Hindus. There was
no concept of divorce among Hindus as the marriage was regarded as a sacrament and an
unbreakable relationship between the couples. Even in the ancient Hindu sources of law there
was no concept of divorce. In Manusmriti, it is regarded as an indissoluble union between
husband and wife. Manu in Manusmriti declares that “a wife cannot be released by her husband,
let mutual fidelity continue till death, this in brief may be understood to be the highest dharma
of the husband and wife.”7 But this changed when the Hindu Marriage Act came into the
picture. Divorce was introduced in the act when it passed in 1955. Various grounds for divorce
were included under section 13 of the act. Necessary amendments were done under this act
time to time. Before passing of the Marriage laws (Amendment) Act 1976, the grounds for
divorce and judicial separation were different but after the amendment came, the grounds for
both divorce and judicial separation were made common.8 Under the Hindu Marriage Act of
1955 adultery is considered as a ground for divorce and for judicial separation. Section 13(1)(i)
talks about adultery as a ground for divorce and section 10(1) talks about adultery as a ground
for judicial separation. There are some theories of divorce under Hindu law like fault theory,
mutual consent theory, irretrievable breakdown of marriage.9 The first theory i.e. the fault
theory which is also known as the offence theory or the guilty theory says that a marriage can
be dissolved when one party to a marriage commits a matrimonial offence. In this situation the

6
Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a
petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of
Section 13, and in the case of a wife also on any of the grounds might have been presented.
7
http://www.lawctopus.com/academike/divorce-under-hindu-law/, Agarwal, R.K, Hindu law ,Central law
agency, Print 2014
8
Chapter V, The Changes in the law of Divorce-Under Hindu Law
http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/12/12_chapter%205.pdf
9
Chapter IV, Different Theories of Divorce,
http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 62

other party i.e. the innocent party gets the right to seek the remedy of it. Under section 13(1)
there are 9 grounds of fault theory on which either husband or wife can sue for divorce but in
addition there are 2 more fault grounds under section 13(2) on which wife alone can sue for
divorce. The second theory i.e. the mutual consent theory talks about the divorce by mutual
consent. Under section 13-B10 of the act both husband and wife by mutual consent can present
a petition for getting the decree of divorce. The third theory of divorce is irretrievable
breakdown of marriage. It is defined as “such failure in the matrimonial relationships or such
circumstances adverse to that relation that no reasonable probability remains for the spouses
again living together as husband & wife”11 such marriage should be dissolved. Adultery which
is a matrimonial offence comes under the fault theory where one spouse is at the fault and the
other spouse gets the right to seek for decree of divorce. Though it is not recognized as the
criminal offence in all the countries but as a matrimonial offence it is recognized in most.12
One can prove adultery in the court of law by circumstantial evidence, contracting venereal
disease etc. In Swapna Ghose vs. Sadanand Ghose13, the Calcutta High Court said that “the
wife found her husband and the adulteress to be lying in the same bed at night and additional
evidence of the neighbors that the husband was living with the adulteress as husband and wife
is sufficient evidence of adultery” and granted the decree of divorce in favour of petitioner
wife. Before passing of the Marriage Laws (Amendment) Act 1976, in order to prove adultery,
the petitioner has to prove that the respondent was living in adultery. But after passing of the
act one single act of adultery can itself be a ground of divorce. There is no need to prove that
the respondent was living in adultery.14 So now just a single act of adultery backed by actual

10
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be
presented to the District Court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground
that they have been living separately for a period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is
not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making
such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are
true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
11
Divorce under Hindu Law, http://www.lawctopus.com/academike/divorce-under-hindu-law/
12
Ibid
13
AIR 1989 Cal 1
14
Chapter V, The Changes in the law of Divorce-Under Hindu Law
http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/12/12_chapter%205.pdf, B.M. Gandhi- Hindu Law,
3rd edn. 2008, p. 300, Eastern Book Company, Lucknow

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 63

proof or circumstantial evidences is far enough to seek the decree of divorce in the court of
law.

JUDICIAL TREND:

Judiciary has now interpreted adultery in its own language. As a criminal offence it is treated
differently where the third person is guilty of the offence and as treated as offender and the
wife is exempted from the liability15 while in Marriage laws it is treated as a ground of divorce
wherein both the spouse can use it as a ground of divorce. For using it as a ground of divorce,
there has to be a consensual intercourse between husband/wife and the third person. If the wife
can prove that she is raped by the third person and not gave her consent for sexual intercourse
then it can’t be used as a ground of divorce.16 A woman who got drunk and have sexual
intercourse then it would not amount to adultery if the intoxication is involuntary but in case
of voluntary intoxication and then the woman having sexual intercourse will amount to
adultery.17

If a man commits bigamy after the commencement of the act then the wife can file a case for
getting the decree of divorce because second marriage is void marriage and its consummation
will amount to adultery. In Mrs. Veena Kalia vs Dr. Jatinder Nath Kalia18, the Delhi High
Court granted the decree of divorce in the favour of petitioner because the respondent’s second
marriage amounted to void which lead to him committing the act of adultery.

The act of adultery must be proved beyond reasonable doubt in the court of law. It cannot
always be proved by direct evidence. Circumstantial evidences are also taken into
consideration. In Subbarama Reddiar vs Saraswathi Ammal19 the Madras High Court held that
“the unwritten taboos and rules of social morality in this country and particularly in village
areas must necessarily be taken into account. If an unrelated person is found alone with a young
wife after midnight, in her bed room, in an actual physical juxtaposition unless there is some

15
Supra note 4
16
Supra note 8
17
Goshawk v. Gushawk (1965) 109 SJ 290;
http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/12/12_chapter%205.pdf
18
AIR 1996 Delhi 54, 59 (1995) DLT 635
19
AIR 1967 Mad 85

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 64

explanation forthcoming for this which is compatible with an innocent interpretation, the only
interpretation that a Court of law can draw must be that the two were committing an act of
adultery together.” In Smt. Pushpa Devi vs Radhey Shyam20, the Rajasthan High Court said that
“it is not necessary to prove the fact of adultery by direct evidence. It would be unreasonable
to expect direct evidence and such evidence, if produced, would be normally suspect and is
likely to be discarded. Normally the matrimonial offence of adultery is expected to be
established by circumstantial evidence, but in that event the circumstances must be such as lead
to the necessary conclusion that adultery was committed by the spouse concerned.” In Pattayee
Ammal vs Manickam Gounder and Anr.21, the Madras High Court said that “Adultery, from its
nature, is a secret act. Directed evidence of an act of adultery is extremely difficult. It is very
rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even
when produced, the court will tend to look upon it with disfavour, as it is highly improbable
that any person can be a witness to such acts, as such acts are generally performed with utmost
secrecy.”

If the adulterers are found in a position where it can be inferred that sexual intercourse
happened then court will usually be satisfied that adultery happened between them. In Swapna
Ghose v. Sadananda Ghose22 the Calcutta High Court said that “the wife found her husband
and the adulteress to be lying in the same bed at night and additional evidence of the neighbors
that the husband was living with the adulteress as husband and wife is sufficient evidence of
adultery.”

The adultery in the court of law must be proved beyond reasonable doubt. In Anupama Misra
vs Bhagaban Misra23, the Orissa High Court said that “Before granting relief on the ground of
adultery the court must be satisfied beyond reasonable doubt that the matrimonial offence
complained of is established. There is always the presumption of innocence and it is for the
petitioner to prove the allegations relied upon. The respondent, on the other hand, bears the
burden of establishing affirmative defenses set up in reply...... What is required is that the court
must be satisfied beyond reasonable doubt that the charge is established.”

20
AIR 1972 Raj 260, 1972 WLN 305
21
AIR 1967 Mad 254, 1967 CriLJ 900
22
AIR 1989 Cal 1
23
AIR 1972 Ori 163

COMMON LAW REVIEW JOURNAL [VOLUME 1]

 65

In adultery the act must be proved either by direct evidence or by circumstantial evidence. Mere
suspicion is not come under any category of the evidence. In Dr.Ashok Kumar Aggarwal vs
Smt.Anju Raje24 the Punjab and Haryana High Court said that “mere suspicion of the husband
cannot be a proof of adultery, especially when the appellant had not seen the respondent in the
company of any male member, nor he could name anyone.”

CONCLUSION:

As we seen above, the meaning of adultery is different in criminal law and marriage laws. In
both laws it is treated differently wherein in criminal law it is treated as a criminal offence
where the third person is guilty of the offence and the wife is exempted from the liability. While
in marriage laws it is treated as a matrimonial offence and used as a ground of divorce. In
Hindu Marriage Act either husband or wife committing the act of adultery makes it as a ground
of divorce for the other spouse. Adultery in itself is such an act which makes the other spouse
incapable of living together. In Hindu law, marriage is a sacrament and a tight bond between
husband and wife which cannot be easily dissolved. It is a relationship between a husband and
wife which is based on love, trust, mutual consent, care etc. If anyone fails to fulfill these
responsibilities then it leads to rift between the couple which further makes one party to a
couple incapable to live with another one. Adultery is an act which violates the trust, love etc.
between husband and the wife. After committing adultery by one spouse it becomes hard for
the other spouse to live with him/her. It also sometimes amounts to mental cruelty to the other
party. Therefore as a ground of divorce it is at its right place where one spouse can get rid of
further cruelty by dissolving their marriage.

24
AIR 2010 (NOC) 442 (P & H)

COMMON LAW REVIEW JOURNAL [VOLUME 1]