Adultery is a widely recognized ground of divorce in almost all legal systems of the world. Some countries have also criminalized Adultery, that is, it can invoke punishment under penal laws. Simply put, Adultery is the act of cheating upon your spouse by having voluntary sexual intercourse outside marriage with another person. Till recently, the Indian Penal Code, 1860 recognized Adultery as a ground of punishment. However, this was a gender specific law as it was selectively applicable only on the man committing the adulterous act with wife of another. Further, a woman whose husband committed adultery could not bring charges against him. Adultery was accorded one of the highest quanta of punishment under Indian Penal Code, amounting to five years imprisonment, or fine, or both.
Section 497 of IPC read as follows:
"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."
Section 497 of IPC, 1860 contained the criminal law on adultery. But this provision was declared unconstitutional by Hon’ble Supreme Court of India in the Josephine Shine v. Union of India [September, 2018]. It was unanimously struck-down by a five-judge bench who declared it violative of Articles 14, 15 and 21 of Indian Constitution. Essentially, the selective application of criminal punishment on man committing adultery and the bar on woman to bring charges against her husband for committing adultery was together held as violative of Right to Equality, Right against Discrimination, and Right to Life. Further, the Supreme Court called the law as archaic and patriarchal in nature as it was based on a common social notion that wife is the property of her husband and therefore under his Guardianship. Along with Section-497, the corresponding section 198(2) in Criminal Procedure Code, 1973 was also struck-down which provided that only the husband could file charges of adultery.
Lawyers must note here that Josephine Shine v. UOI is applicable retrospectively by virtue of A.S. Gauraya v. S.N. Thakur, (1986) 2 SCC 709, wherein the court has mentioned that any law declared by Supreme Court applies to pending proceedings. Further, in the Josephine Shine judgment, the court also pointed out that if a partner commits suicide due to the alleged adulterous act of his partner, then such a partner can be prosecuted under Abetment to suicide. This is particularly relevant as prosecution under section 306 of IPC (Abetment to suicide) seems to be on rise.
What is the Effect of Josephine Shine on Adultery as a ground of Divorce?
The Hon’ble Supreme Court in Josephine Shine case unanimously recognized Adultery in nature of a civil wrong. It is important to note here that the burden to prove the allegation of adultery lies on the petitioner. It is seen that proving adultery is legally cumbersome, especially where the court has to rely on circumstantial evidence. However, courts usually do away with the necessity to prove adultery beyond reasonable doubt since such standard of proof can be difficult to get in personal relationships.
Under the Hindu Marriage Act, Adultery is a ground for divorce as well as judicial separation. The petitioner in such case must prove (to the extent of reasonable doubt) that his/her spouse indulged in act of voluntary sexual intercourse with another person, without the petitioner’s consent. Unlike section 497 of IPC which was struck-down subsequently, the petitioner can be either the wife or husband.
An important aspect to note here is that many women and men may bring a charge of Adultery against their spouse in order to harass their partner after a fall-out. The courts are starkly aware of this phenomenon in society. The court can order payment of compensation to the respondent if it is proved that the allegation of adultery was false and malicious. Further, the court can also authorize the respondent to file a case of malicious prosecution, mental cruelty for divorce proceedings and in certain situations - a case of defamation can also be filed by the respondent.
Under Muslim Law also, Adultery is a recognized ground for divorce. While the husband can bring a charge of adultery against his wife and deny paternity of his child after marriage, the same right is not available to the wife. She can file for a divorce based on cruelty owing to her husband’s acts of adultery. The concept of ‘Lian’ or ‘Laan’ exists in Muslim law. Under this provision, the wife who is falsely charged with adultery can sue her husband and file for divorce if the charge is proven false.
As far as Christians are concerned, adultery is not recognized as a ground for divorce in itself. The wife must prove allegation of adultery along with other grounds, such as desertion, insanity, change in religion etc. However, it must be noted that the Indian Divorce Act allows a Christian woman to file for judicial separation on ground of adultery alone.
Under Special Marriage Act, 1954, Adultery is a recognized ground for divorce as well as judicial separation.
A charge of Adultery is not limited by time. Thus, the petitioner can file for judicial separation or adultery as and when he learns about the alleged act. In some cases, the husband can file a case of adultery if he has reason to suspect the paternity of child born after his marriage. However, if the respondent proves that the petitioner showed unreasonable delay in filing the case after learning of the adulterous act, then he/she can claim covert condonation of the act, which will nullify the petitioner’s case. Further, if the petitioner is proved to be guilty of adultery, then the charge brought by him/her will also fail.