The institution of marriage has importance in every society. No can deny that an institution like marriage can exist on commitment, loyalty and faithfulness of partners. So marriage has been given a pious and a sacred position. Only the blind and bigot persons can say that such institution is the product of social contract in which there are certain particular duties of husband and in return the wife has some particular duties. If either of the spouses commits adultery, they are not only breaking the promises that were made to each other but also ruining the sanctity of the marriage. The offence of adultery was built on the assumption of bigot people that the man who committed the act of adultery guilty and that the married woman was a helpless victim of adultery. The husband has only power to prosecute the offence and she was free from “criminal responsibility” and that the man committing the offence of adultery was unfaithful to the married man and he is solely responsible for sexual liaison. A husband if commits the act of adultery can not be prosecuted at the instance of wife.
Joseph Shine filed Public Interest Litigation under Article 32 of the Constitution of India challenging the constitutionality of the offence of adultery. The apex court rightly struck down the offence of adultery as it violates the basic dignity of women and treats women as the personal property of the husband.
Under Section 497 of the Indian Penal Code, 1860 the act of committing adultery is criminalized, it states that any person who has sexual intercourse with a married woman without the consent or connivance of her spouse, such act amounts to the offence of adultery.
The punishment for committing adultery may extend up to imprisonment for five years, or with fine, or both. On 27th July 2018, a five-judge bench of Supreme Court unanimously struck down Section 497 of IPC and Section 198 (2) of Criminal Procedure Code as being violative of Articles 14, 15 and 21 of the Constitution of India. The bench held in the judgement that the Section is violative of Article 14, which deals with the right to equality and it only penalizes men and not women. Article 15(1) of the Constitution prohibits the State from discriminating on the grounds of sex. The offence only considers the husband as the aggrieved party if his wife commits the offence of adultery but the law does not consider the wife as an aggrieved party if her husband commits sexual intercourse with another woman. It is violative of Article 21 of the Constitution which deals with the protection of life and personal liberty, and section 497 of IPC treats women as the personal property of the husband and goes against the basic dignity of women. Any act of adultery by any spouse is a civil wrong. it is still a ground for divorce in both Hindu and Muslim personal law.
Adultery - The word adultery is derived from the Latin word ‘Adulterium’. It is termed as the extramarital sex. an is considered objectional on social, religious, moral, or legal grounds. Merriam-Webster dictionary defined adultery as “voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.” Even if the offence of adultery is decriminalized under Section 497 of the Indian Penal Code, it constitutes to be a reasonable ground for divorce, i.e. if either the husband or wife commits adultery, the other person can file for divorce solely based on this reason. Marriage is a pious bond and involves that both pastries should be loyal to each other, therefore if either party is violating the sanctity of the bond, then the law allows the other person to file for divorce on the ground that his or her wife committed the act of adultery.
Under Section 13(1)(i) of Hindu Marriage Act, 1955, the Act lays down that if either the husband or wife after solemnisation of marriage had sexual intercourse with any person other than his or her spouse, then that person has committed the offence of adultery and it is a reasonable ground to file a divorce. A Hindu man, as well as the woman, can seek divorce on the grounds that his or her spouse committed the act of adultery. Therefore, under the Hindu Marriage Act, having voluntary sexual intercourse with someone other than his or her spouse is a reasonable ground for divorce.
Under the Muslim personal law, it is an allegation of adultery to the wife by the husband that entitles her to file a suit for dissolution of marriage and to get a divorce if the charges are proven to be false. According to Muslim law, a marriage is valid until a verdict is passed by the judge. To dissolve a marriage under the doctrine of lian, (which states where the wife is charged with adultery and the charge is false) the court should determine whether the charges of adultery were unjustly made.
In Islam, sexual relation out of wedlock is a major sin. According to the provisions laid down in the Dissolution of Muslim Marriage Act, 1939, a married woman under the Muslim law is entitled to obtain a decree for the dissolution of marriage if her husband associates with women of ill-repute. Although adultery as a ground for divorce is not mentioned in the Act, the interpretation of the above Section helps us to understand that if a Muslim man indulges himself in adultery it is a valid ground for divorce.
In the case of adultery, direct evidence is difficult to get. One has to rely on circumstantial evidence. The act of adultery will be inferred from Circumstantial evidence, Evidence which states non-access and the birth of children, Evidence of visits to the houses of ill-repute, Contracting venereal disease and Admissions that have been made in previous proceedings.
The steps to follow to take legal action against the spouse if he or she commits the act of adultery:
1. Firstly, it is extremely important to ensure that the act is adulterous. These acts are considered adulterous; the birth of a child beyond the period of twelve months after the cessation of the marital consortium between the spouses, admission of adultery, etc.
2. The spouse may want to appoint a private investigator to collect evidence which could be presented before the court.
3. After the spouse is done with the collection of evidence he or she might contact a lawyer as it is important for him to weigh out his options and also to understand the legality of admission of pieces of evidence before the court.
4. Fourthly, if the spouse wants to file for divorce then he or she should move to court and file a petition for divorce.
5. If both the husband and wife after reviewing the above factors decide to opt for divorce through mutual consent, then:
i. both the parties need to file for divorce before the district court.
ii. Before filing the petition, couples should live separately for a period of one year or more. Then after the petition is allowed parties are required to file a statement and if any party is unavailable then the statement will be filed by his or her family member.
iii. Now, before the court couple needs to give reasons as to why they are unable to live together and mention in the petition that they have mutually agreed to dissolve the marriage.
iv. Finally, the court will inspect the documents and after a period of 6 months and not more than 18 months will give a date for listening to the parties. And after hearing the parties, if the court is satisfied then it may pass a decree of divorce declaring the marriage to be dissolved.
6. If the parties try to seek divorce through contest, then:
i. the spouse needs to file the divorce petition before the family court.
ii. the court will send a copy of the petition to the spouse.
iii. Then both the parties should be prepared to face the court proceedings as the divorce is contested by either the husband or the wife.
iv. if the divorce is granted then the court will further give a six-month span for reconsidering the issue and the maintenance which ought to be provided will also be decided.
7. Maintenance which is to be provided after the divorce:
i. If the wife commits the act of adultery, then she will not be entitled to receive maintenance from her husband or
ii. if she refuses to live with the husband without any sufficient reason or cause.
iii. if the husband commits the act of adultery then he will be liable to provide maintenance to the wife if she is unable to fend for herself.