Adultery or No Adultery

INTRODUCTION

 

One of the darker taboos of the Indian social structure- Adultery, has found a reasonable space in society today. While ethics have condemned the practice and sentenced it as a vile crime, the advancing generations of this time are making room for reasoning and analysis of the act. As the debate for right and wrong in this subject wages on between the masses, it's place in law is defined and prescribed. However, the practicality of these laws have been challenged manifold in the last decade.

 

Adultery has been a part of our society since ancient times. It's most traceable roots go far back to the 17th century.  However, through the passing of ages, law has set a check on this practice declaring it as immoral and uncivil. In our lives today the practice lurks and is still considerably prevalent. 

 

LAWFULLY SPEAKING

 

As per Section 497 of the Indian Penal Code, if a married man has sexual intercourse with a woman that he knows is married to another man, outside of his marriage, then his act amounts to adultery. It is a matter of great bewilderment that as per this act only a man can be charged for adultery while the woman cannot, whatsoever. Furthermore, this same act also has a clause as per which if married man has sexual intercourse with an unmarried woman or widow or prostitute or even a married woman who has her husband's consent, then too he cannot be charged with adultery.

 

In case of adultery it is difficult to get direct proof hence one has to rely on circumstantial evidence and the same may suffice to prove the inferred adultery. The burden of proving adultery in a matrimonial case is upon the person who is making the allegation. The standard of proof in "proceedings under the Act being initially of a civil nature is by preponderance of, probabilities and not by proving it beyond reasonable doubt. General evidence of the ill-repute of the husband or of the lewd company that he keeps, or even that he knows the addresses of prostitutes and was seen with doubtful women, would neither prove nor probe adultery. Adultery, as a general rule, is proved by presumptive proof based on:

 

 

• Circumstantial evidence,
• Evidence 0 non-access and the birth of children,
• Contracting venereal disease,
• Evidence of visit to houses of ill-repute,
• Admissions made In previous proceedings,
• Confessions and admissions of the parties. Mere suspicion is not sufficient.

 

 

There must be circumstances amounting to proof that opportunities could be used, such as the association of the parties was so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.

 

Instances of Adultery

 

In the following cases the plea of adultery has been upheld by courts:

 

 

• Wife had been absenting herself from her house for some times and seen in the company of a stranger to the family of her husband without reasonable explanation or any explanation.
• Unrelated person found alone with wife after midnight in her bedroom in actual physical juxtaposition.
• Child born beyond the period of twelve months after the cessation of marital consortium between the spouses.
• Evidence on post-suit adultery is admissible to prove and explain other evidence given in the case and to show the character and quality of the previous acts.
• Paramour's letters indicating facts of illicit relationship.
• Admission of adultery by wife through letters.
• Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
• A solitary instance of voluntary sexual intercourse by wife of another person is enough.
• Wife left her husband and was living at her parent's house. The allegation by husband that she became pregnant there without his access to wife. Statement by wife that husband used to visit her parents house and stayed overnights and cohabitated with her. Wife failed to examine her parents or any other witness in support of her statement. There was no interference with the decree of divorce granted against the wife.

 

 

Instances of No Adultery

 

In the following cases the plea of adultery has been rejected by courts.

 

 

• The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
• No conclusion of adultery where the wife was found going on the scooter of some other person or talking with someone other than her husband.
• No corroboration to prove adultery of wife when she remains in a room with door though shut but unbolted at 10 p.m. with another person when the mother of the husband and five grown-up children were present in the house.
• Mere fact that some male relation writes letters to a married woman does not necessarily prove that there was illicit relationship between the writer and recipient of the letters.
• Wife becoming pregnant after husband had undergone vasectomy operation without proving that the operation was successful, no illicit relationship of wife can be presumed.
• Serious doubts may be raised as to the allegation of adultery of wife when the husband makes no such allegation in the notice for divorce prior to the filing of the suit.
• Where the husband files the petition for divorce 8 years after he came to know that his wife has committed adultery and has not explained the reason for the inordinate delay alone.
• Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an adulterous act.
• Masturbation of co-respondent by wife is not adultery.
• Allegations of the husband that he saw his wife talking with other persons on three occasions in daytime without any physical contact are not sufficient.

 

 

Over the last decade a lot many appeals have been made, based on an mass opinion to repeal or amend this law. The question that arises now is that of a moral value. While there is a side of the general masses that looks down upon the sheer idea of adultery, there are also a moderate number of those who find it a justified and reasonable act. Regardless of which side has more support, the issue of adultery and the laws related to it are definitely at question.

 

Seeing is believing! Click here to watch our mass-opinion survey on Adultery.