Answer By law4u team
Under Indian personal laws, an extra-marital affair constitutes a valid ground for seeking a decree of divorce. The legal framework governing marriage and divorce in India varies depending on the religion of the parties involved, but adultery or a voluntary sexual intercourse with any person other than the spouse is universally recognized as a statutory ground to dissolve a marriage or to obtain a judicial separation. 1. Hindu Marriage Act, 1955 (HMA): Under Section 13(1)(i) of the HMA, which applies to Hindus, Buddhists, Sikhs, and Jains, any marriage solemnized, whether before or after the commencement of the Act, may be dissolved by a decree of divorce on a petition presented by either the husband or the wife on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. This means that a single act of voluntary sexual intercourse outside the marriage is sufficient in law to constitute adultery and serve as a ground for divorce. 2. Special Marriage Act, 1954 (SMA): For civil marriages solemnized under the provisions of the Special Marriage Act, Section 27(1)(a) similarly provides that a petition for divorce may be presented by either party to the marriage on the ground that the respondent has, since the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. 3. Parsi Marriage and Divorce Act, 1936: Under Section 32 of this Act, any married person may sue for divorce on the ground that the defendant has since the solemnization of the marriage committed adultery. 4. Dissolution of Muslim Marriages Act, 1939 and Islamic Law: Under Muslim personal law, a wife can seek judicial divorce under various grounds, and the husband's extra-marital involvement, particularly if it leads to cruelty or a false accusation of adultery (li'an), can form the basis of a claim for dissolution of marriage. A Muslim husband generally has the right of talaq, but judicial avenues also recognize matrimonial misconduct. 5. Indian Divorce Act, 1869: This Act governs Christians in India. Section 10 of the Act allows any husband or wife to present a petition for divorce on the ground that the respondent has, since the solemnization of the marriage, been guilty of adultery. Historically, the law required a wife to prove an aggravating circumstance such as incestuous adultery, bigamy, cruelty, or desertion along with adultery, but amendments have simplified this, making adultery by itself a sufficient ground for either spouse. Regarding the legal definition and proof of adultery, it is important to note that direct evidence of sexual intercourse is rarely available because such acts are committed in privacy. Therefore, the courts in India rely on circumstantial evidence. The standard of proof required in matrimonial proceedings is not beyond reasonable doubt as in criminal law, but rather on a preponderance of probabilities. If the petitioner can show an inclination, disposition, and opportunity for the respondent to commit adultery, the court may draw an inference against the respondent. In the landmark judgment of Joseph Shine v. Union of India, the Supreme Court of India struck down Section 497 of the Indian Penal Code (IPC), which had criminalized adultery only for men while exempting women and treating them as victims or property. The Supreme Court held that criminalizing adultery was unconstitutional, violated the right to equality, and infringed upon individual privacy. However, the apex court explicitly clarified that while adultery is no longer a criminal offense leading to imprisonment, it remains a civil wrong and a very strong ground for seeking a divorce under all personal laws governing marriage in India. Apart from being a direct ground under the head of adultery, an extra-marital affair frequently constitutes another independent ground for divorce, which is cruelty. Under various personal laws, mental and physical cruelty inflicted by one spouse upon the other is a ground for divorce. The Supreme Court and various High Courts have repeatedly held that discovering a spouse's persistent extra-marital affair, or being subjected to public humiliation, neglect, and emotional trauma because of an affair, amounts to grave mental cruelty. Consequently, even if a petitioner faces evidentiary hurdles in proving actual sexual intercourse to the strict standard required for the specific ground of adultery, the mental agony caused by the affair can be successfully pleaded and proved as an act of cruelty under provisions like Section 13(1)(i-a) of the Hindu Marriage Act, 1955. When filing a divorce petition based on an extra-marital affair, the petitioner must generally implead the third party, commonly known as the adulterer or co-respondent, in the divorce petition, depending on the specific rules of the court and the applicable personal law. However, failure to implead the third party does not necessarily defeat the main divorce petition if the court finds sufficient evidence of the affair between the husband and wife. The petitioner must collect evidence such as chat logs, hotel receipts, photographs, call detail records, or testimony from witnesses to substantiate the allegations before the family court. In conclusion, an extra-marital affair is entirely recognized as a valid, substantive ground for divorce in India. It can be pursued directly under the statutory ground of adultery across all major civil and religious personal laws, or it can be pleaded under the broader and equally potent ground of mental cruelty. The removal of criminal penalties for adultery under the former Indian Penal Code (IPC) did not diminish its civil consequences, and courts continue to grant divorces to aggrieved spouses who establish that their partner has engaged in an extra-marital relationship.
