Is Adultery a Ground for Divorce in India

Being a divorce lawyer in Gurgaon, many clients ask this question to Advocate Vipin Raina. According to Vipin Raina, a senior divorce lawyer from Gurugram, adultery is defined in the Indian Penal Code of 1860. Therefore, under section 497 if a man has sexual intercourse with a person who is the wife of another man, without the consent and knowledge of that man, falls under adultery. Most personal laws consider adultery a valid reason for separation.

The two bases of adultery

●    Sexual intercourse outside marriage
●    The act must be voluntary

There is quite a disparity in judgements on adultery. For instance, in one case the court stated that circumstances should be so compelling that can prove adultery. However, in another case, Madras High Court said that if an unknown person is found with another person’s wife after midnight, it can be a base for adultery under the law. Therefore, it is important to note that the responsibility of proof submission that whether the act of adultery happened or not lies on the petitioner only.

Hindu Laws on Adultery

Initially, adultery was only considered immoral but it had no legal standing for divorce. However, post amendment in the Marriage Act, 1976 any aggrieved party gets the right to file a petition for divorce or judicial separation by choice under the said act. Section 13(1) of the Hindu Marriage Act, 1955, defines adultery as a ground for divorce in India. As per the law,  the petitioner needs to prove that he/she is married to the respondent and that the respondent made voluntary sexual intercourse with another person. The court states that the spouse that made the allegation has the responsibility to submit suitable proof in the court of law. 

Muslim Laws on Adultery

The Quran states adultery is a punishable act that is to be punished by stoning to death. But India follows the Constitution of India, so stoning to death is not allowed here. So, if a Muslim husband alleges his wife for adultery and fails to prove this in court. Then he will have to ask for forgiveness in a proper manner. And whether the wife wishes to pursue divorce or wishes to drop the divorce case, lies fully on the wife.

Conclusion

There is no clarity on adultery. The court of law considers each case with its circumstantial evidence.  Therefore, partners whose case has an adultery base for separation or divorce, they need to hire a good divorce lawyer. Only an expert and experienced lawyer can deal with technicalities well. 

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