Adultery with reference to Christian and Hindu Law

 Adultery with reference to Christian and Hindu Law

Adultery as defined under Section 497 of the Indian Penal Code, 1860, means 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.” The key ingredients of adultery are: An

act of sexual intercourse outside marriage and the intercourse should be voluntary

Adultery as a ground for divorce under Hindu Law:

Under Hindu Marriage Act, 1955 adultery is a ground for divorce under Section 13(1)(i). According

to it, adultery is an act of voluntarily indulging into sexual intercourse out of marriage. Thus, it

becomes necessary for the petitioner to prove that he/she is married to the respondent, and the

respondent made voluntary sexual intercourse with another person. Adultery was treated as an

immoral act before the enactment of the Marriage Laws, 1976, and was subjected to shame as well

as irrespective of gender. However, it was not a ground for divorce. Adultery was considered as the

grounds for judicial separation and divorce after the 1976 amendment, which marked a great

development in the Hindu Personal Laws. Section 10 of the Hindu Marriage Act, 1995 declares

adultery as a ground for judicial separation.

In Patayee Ammal V. Manickam, it was held that it is unreasonable to expect direct evidence of

adultery as it is rare and impossible to obtain due to the nature of the act. In Baby Ammal V.

Varadarajulu, it was held that the degree of proof may not reach a level of certainty but a level of

probability. In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, according to the

husband, the wife frequently visited the house of the co-respondent where she was often found in a

compromising situation with him and even used to neglect her duties. Thus, the decision was taken

in favour of the petitioner on the basis of evidence provided due to which judicial separation was

granted. In Sachindranath V. Nilima Chatterjee, it was held that the evidence for cruelty may be in

the form of non-access, birth of children, contracting of venereal disease, evidence of visits to house

of women of easy virtue, confession and admission of the spouses. Mere opportunity to commit

adultery is not enough, the same has to be committed. In M. Mallika V. M. Raju, it was held that

where a petition is presented on the ground of adultery, the adulterer must be impleaded as a co-

respondent.

Adultery as a ground for divorce under Christian Law:

Divorce and judicial separation among Christians in India is governed by the Indian Divorce Act,

1869 and the Indian Christian Marriages Act, 1872. Section 10 of the Indian Divorce Act lays down

grounds for dissolution of marriage. Adultery has been laid down as a ground for divorce under

Section 10 (1)(i) i.e. if the either party has committed adultery after the solemnisation of marriage,

the other party may file a suit for divorce. A century ago this act contained certain harsh and

discriminatory provisions, for example, adultery simpliciter was a ground available to only

husbands and it was the only ground provided to them whereas, wives could not obtain divorce on

the ground of adultery simpliciter, she had to prove an additional matrimonial offence like cruelty,

desertion, conversion or bigamy along with adultery. In Mary Sonia Zachariah V. UOI, phrases like

“adultery coupled with” were struck down as ultra vires and it was held that cruelty or desertion

without adultery was sufficient ground for divorce. In Ammini E J. v. Union of India also, the

constitutionality of Section 10 was challenged, and certain discriminatory phrases were struck down

to provide justice to to the petitioner. The court quashed the provision which requires a Christian

wife to prove that her husband had been indulging in “incestuous adultery” or “adultery coupled

with cruelty or desertion” in order to obtain divorce. In Arokia Raj Morais V. Mobia Bibia Rani

Morais, it was held that petition for adultery cannot be made on pre-marriage adultery, it can only

be after the solemnisation of the marriage and not before.