Adultery

Adultery is voluntary sexual intercourse by a married person with someone other than their lawful spouse. In Indian law, adultery has undergone a dramatic transformation: it was formerly both a ground for divorce and a criminal offence (IPC Section 497), but the criminal provision was struck down by the Supreme Court in 2018. Today, adultery remains a ground for divorce under Section 13(1)(i) HMA (and equivalent provisions under other personal laws) but is no longer a crime.

Adultery as a civil ground for divorce: Section 13(1)(i) HMA provides that any marriage may be dissolved by a decree of divorce on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than their spouse. The petitioning spouse must prove: (1) voluntary sexual intercourse (not rape); (2) with a person other than the spouse; (3) after the solemnisation of the marriage; and (4) by the respondent (the other spouse). Direct evidence of adultery is rarely available — courts infer it from circumstantial evidence (opportunity + inclination: the parties were together in circumstances where intercourse was possible and had a disposition toward it).

Standard of proof in civil adultery cases: in civil divorce proceedings, the standard is the civil standard — balance of probabilities, not proof beyond reasonable doubt. However, because of the seriousness of the allegation (stigma equivalent to a criminal charge), courts in practice require strong and convincing evidence before finding adultery proved on the balance of probabilities. Circumstantial evidence — hotel receipts, telephone records, birth of a child outside the marriage's probable period, private investigator reports — are typically used.

For advocates, adultery grounds in divorce proceedings require: (1) assembling circumstantial evidence showing opportunity and inclination — the respondent's relationship with the third party and their physical proximity; (2) DNA evidence where the question of paternity of a child is relevant; (3) responding to adultery allegations — challenging the circumstantial evidence and the inference drawn; and (4) advising clients that adultery by either spouse may affect maintenance (a spouse who has committed adultery may receive reduced maintenance, though no automatic forfeiture rule exists).