Adultery - A Matrimonial Offense

Adultery may be defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. Therefore, the definition of adultery brings out a few ingredients, which are:

a. It is a voluntary act of the parties. A forceful act cannot be termed as adultery

b. Adultery can be indulged into only by a married person. A sexual intercourse by an unmarried person cannot be termed as adultery

c. The sexual intercourse should be with a person other than the adulterer’s spouse

Therefore, all the above 3 ingredients are important for an act to be termed as adultery.

Now a question arises that why are we discussing adultery; this is because this is a ground for divorce in the Indian Marriage Laws. The act of adultery is not a ground for divorce for the moral turpitude involved in it but for voluntary surrender to another person of the reproductive organs of the guilty person. Hence, adultery is actually an offense against the spouse in a marital relationship and not an offense of moral turpitude.

A question which comes up during discussions with married people, whose spouses have indulged in adultery, is a question of howto prove it during a divorce proceedings. As a divorce proceeding is civil in nature, the proof need not be as strict as in a criminal case and therefore proof beyond reasonable doubt is not required.

Adultery can very rarely, if ever, be proved by the direct evidence of witnesses who saw the parties in flagrante delicto and witnessed the act. In most cases, the evidence must be circumstantial in character and must depend upon the situation spoken to in regard to which the act is alleged, and the probabilities relating to that situation (Subbarama Reddiar vs Saraswathi Ammal). Therefore, a direct evidence is not required to prove adultery, infact direct evidence, if produced in the court, could be negative. The reason is that adultery is a secret act and it is highly improbable that there could be a witness to such a secret act (Pattayee Ammal vs Manickam Gounder). Only proof of preponderance of probabilities is required to prove adultery. In common parlance this means that the proposition is most likely to be true in a given situation. If the probability is more than 50% that the given proposition being true, the test of preponderance of probability is met and the proposition is considered to be true.

Hence, from the above discussion, we understand that

a. Direct evidence is not required to prove adultery, infact direct evidence may be treated negatively by the courts

b. The proof need not be strict in nature as in case of criminal offenses. Proof of adultery is not to be proved ‘beyond reasonable doubt’

c. The test of preponderance of probability is applied to civil matters such as divorce proceedings

How to prove adultery?

In a case, the hon’able judge had held that ‘The Court usually infers adultery from the fact that the respondent shared a bed or bedroom for the night with a person of opposite sex other than the petitioner or from the fact that the respondent had been carrying on an association with a person of the opposite sex other than the petitioner and there is evidence of illicit affection or undue familiarity between them coupled with an opportunity for them to have committed adultery.’ Therefore we can understand from the above, to prove adultery, the petitioner has to prove that his/her spouse

a. Voluntarily shared a private moment with a person of the opposite sex such as a bedroom, an apartment etc…

b. Has an illicit affection or undue familiarity with the person of the opposite sex. This implies acts of the spouse which are generally forbidden by law, rules or customs of the society and which tend to generate suspicion in the mind of a person

c. The spouse and the person of opposite sex should have an opportunity to commit adultery. For example, if the accused spouse and the other person are in a room alone for a few moments, the 3^rd condition is not satisfied as there is no opportunity for them to commit adultery.

d. All the above 3 conditions viz. voluntarily sharing of a private moment, illicit affection/undue familiarity and opportunity to commit adultery should exist at the same time when the said act of adultery is alleged to be performed. This is required so that the conditions of preponderance of probability is met.

As mentioned above direct evidence of adultery is not available, circumstantial evidence is required to be produced in courts. It is to be noted that the circumstances should be such that it should lead to a necessary conclusion that adultery was committed. This can be proved by preponderance of probability method enumerated above.

Adultery can also be proved by

a. evidence of non-access and birth of children

b. contracting venereal disease

c. confessions and admissions

Hence, if the wife delivers a baby or conceives a child, provided the husband does not have access to the wife during the time she was expected to conceive the foetus, is a proof of adultery by the wife.

Similarly, if either spouse contracts a venereal disease, it can be argued that such a disease is spread due to sexual intercourse, which the spouse may have had with another partner.

Further, any confession and admission by the adulterer is also considered as satisfactory proof of commission of adultery.

Can adultery be condoned?

Yes, the courts have held that adultery can be condoned by the other spouse if he/she cohabits with the adulterer even after the knowledge of adultery. The idea behind this is that adultery is considered as a repulsive matrimonial offence and even after the knowledge of the other spouse committing adultery, if the non-adulterous spouse continues cohabitation, it is considered as a condonation of the act of adultery.

The Supreme Court of India in N. G. Dastane vs S. Dastane held that condonation means forgiveness of the matrimonial offense and restoration of spouses to the same position as he or she occupied before the matrimonial offense was committed. Hence, condonation implies both forgiveness and restoration, that is forgiveness by the non-offending spouse and restoration or mending of ways of the offending spouse. If the offending spouse does not mend his or her ways even after commitment of mending ways, it does not constitute condonation of matrimonial offense by the non-offending spouse.

Do feel free to comment on the article.

Twitter: @StandUp4Cause

Blog: Stand up for a Cause

Note: This article is not a legal advice and cannot be construed as such. The author will not be responsible for any liability, legal or otherwise, arising from use of the above article. The readers should consult their legal advisors and not rely on the above article.