Understanding Adultery as a ground for divorce under Hindu Law which is governed by the Hindu Marriage Act, 1955, also governs marriage and divorce among Hindus, Jains , Buddhists, Jains, and Sikhs . Adultery is a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act. Now it is very difficult to prove adultery. Sometimes it prima facie appears that there is a case of adultery depending on the averments and documents placed on record however in some cases even when you know such a thing is present but it becomes difficult to prove .
What is Adultery ?
Normally what we understand is it is a sexual relationship outside marriage between a married person and someone who is not the spouse. and also involves consensual sexual relationship between such individuals.
How does one prove Adultery in Divorce Cases
As we know adultery is a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act,1955 but proving it becomes difficult at times even when you know there is. The burden is always on the Petitioner who files the case in court and must be proved beyond reasonable doubt. Also circumstantial evidence and if proved will certainly be denied maintenance . Circumstancial evidence means circumstances which make it apparent that there exists such relationship between married individuals. The word s”living in adultery” in section 13(1)(i), Hindu Marriage Act, also appears in 488(4) of the CrPC which is no BNSS. Evidence such as testimony of eyewitness , whatsapp communications etc are reliable source for proving adultery also photographs in compromising position which is although difficult to obtain.
What is essential to prove adultery ?
consensual intercourse
Voluntary and intercourse with consent
That such person is married at that time to another person
Prima facie appears with circumstantial evidence that such relationship exists
Does Cases of Adultery affect in granting child custody rights ?
Certainly yes. However in case of custody court will always keep in mind the welfare of the child which is of paramount importance.
Conclusion for Adultery as a ground for divorce under Hindu Law
Although it is no longer a criminal offence however it is a valid ground for divorce . Refernce of a few landmark judgments such as Swapna Ghosh vs Sadananda Ghosh And Anr. on 22 July, 1988, (AIR1989CAL1, 93CWN231) is a famous case wherein adultery has been seen as a form of mental cruelty . For more information kindly submit your query here
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