Adultery

Yes it can be

Section 497 penalizes s*xual intercourse of a man with a married woman without the consent of her husband when such s*xual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the s*xual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having s*xual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.

mere sms is not sufficient to prove that the spouse is living in adultry.   living in adultry does not mean that a spouse had a few s*xual encounters.  it means that the act of adultry is being committed on regular basis.  sms can be a ground to raise the suspicion but is not a conclusive proof of adultry.  the records can be summoned from the service provider.

dear u posted almost similar queries.

Rajiv ji absolutely correct in his reply.

pvt companies wont give u the material directly, u ll ve to summon the record through the proccess of court....but will be of no use unless and untill u satisfy the other ingredients of the section.

to prove adultry you have submit proofs mere airtel print out cannot be accepted as evidence under indian evidence act

I am clear about one thing. Mere sms, chat or s*x talk does not constitute adultery. Adultery is physical s*xual intercourse. Sms, chat, etc. can be merely used as supporting evidence only. If you get evidence from mobile service provider, it can be used only as supporting evidence in proving adultery. Mere existence of sms, chat, etc. does not prove adultery.

But can this SMS  be a basis of proving cruelty and seeking divorce ?

Sadly no (in my opinion). In India to seek divorce it should be either mutual or there are specific reasons defined which include adultery as one of them. In this case adultery cannot be proved.

Also please note the recent judgement of Delhi high court which has been applauded as a victory for gays will have bearing on adultery as well.

It states,if two people indulge in consensual s*x in private the act is not criminal. I feel this has lots of repercussions on adultery as well where the man indulging in adultery could be tried in court on the complaint of a woman's husband.

However, adultery still stands as one of the reasons for grant of divorce. However, mere s*x sms, s*x chat etc cannot prove adultery.

sending SMS  suggestive of s*x**al overtones to anyone other than spouse - can that AT LEAST BE CRUELTY. I am not talking of adultry but mere cruelty ? and that Cruelty with other things - can that be basis of seeking divorce on basis or cruelty ?

It can again be used as supporting evidence and nothing more. Getting a divorce is very very difficult.

what about taped talk  proving cruelty of spouse beyond doubt ...and email addresses with IP originating from Spouse's locality.

are those strong grounds alongwith the above to establish cruelty ?

Again only supporting eveidences.

How that is supportive evidence. Open confession by wife ? supporting evidence ? then what is fool proof evidence.

On bais of what act is it supportive evidence only ? Its undeniable evidence.

If such direct evidence is supportive , what does court consider definitive evidence ?

That is what our law is like. In any case they do not consider taped evidence as main evidence.