DECLARATION PAGE

I Ajit Kumar Sharma student of B.A.L.L.B. (Second year) in Chanakya National Law
University declare that the research project entitled “Adultery as ground of divorce”
submitted by me for the fulfillment of FAMILY LAW I course is my own work. This project
has not been submitted for any other Degree / Certificate / Course in any Institution /
University.

Name of the candidate

AJIT KUMAR SHARMA

B.A.L.L.B (1st Year) Signature of Candidate

ROLL NO. 1303

ACKNOWLEDGEMENT PAGE

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I am highly elated to have worked on my research topic “Adultery as ground of divorce”
under the guidelines ofMR. RAVI RANJAN, (FACULTY OF FAMILY LAW). I am very
grateful to him for his proper guidance.

I would like to take this opportunity to express my profound gratitude and deep regard to him
for his exemplary guidance, valuable feedback and constant encouragement throughout the
duration of the project.

His valuable suggestions were of immense help throughout my project work.

His perceptive criticism kept me working to make this project in a much better way. Working
under him was an extremely knowledgeable experience for me.

I would also like to thank all my friends and my seniors. Apart from all these I would like to
give special regard to the librarian of my university who made a relevant effort regarding to
provide the materials to my topic and also assisting me.

Finally I would like to thank my parents and brother for their immense support and presence
during this whole project work.

Ajit Kumar Sharma

CONTENTS

NAME OF CHAPTERS PAGE NUMBER.

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DECLARATION…………….…………………….. ………. 1

ACKNOWLEDGEMENT………….. 2

INTRODUCTION…………………………………………………… 3

AIMS AND OBJECTIVE……………………………………………… 5

HYPOTHESIS ……………………………………………………… 5

SOURCE OF DATA…………………………….…………. 5

METHOD OF DATA COLLECTION……………………………… 5

2. ADULTERY IN PERSONAL AND CRIMINAL LAW ……….. 6-9

3. DIFFERENT GROUNDS FOR DIVORCE …………………………….. 10-11

4. JUDGEMENT AND COMMENTRIES…………………… 12-15

5.CONCLUSION ………………………..………....…………………… 16-17

BIBLIOGRAPHY………………………………….…………………… 18

CHAPTER I

INTRODUCTON

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India is a country which abounds in personal law; each community has its own personal law.
The Hindu ,the major community have their own personal law; so as Muslim, parse, Jews
which is minority in India have their own separate family law. They are govern by their own
personal law.

HINDU has their own personal law HINDU MARRIAGE ACT 1955. All the conduct of
their personal law Hindu is govern by this act. It is very difficult to define the term Hindu in
reference to religion since Hindu religion is so diverse and multifaceted that the definition of
the term Hindu is terms of Hindu religion is almost an impossible task.

Section 2 of Hindu marriage act 19551 talks about Application of Act.- (1) This Act applies,-

(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would
not have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be,- (a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or
Sikh by religion and who is brought up as a member of tribe, community, group or family to
which such parents belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.

1 Bare act
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(3) The expression "Hindus" in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion is, nevertheless, a person whom this Act applies
by virtue of the provisions contained in this section.

Marriage is the sacred institution; it is the very foundation of a stable family and civilised
society. There are however certain prerequisites and conditions for a valid marriage. All the
personal law lay down some conditions which need to be complied with to enter into or
solemnise a legal marriage.

Section 5 of hindu marriage act 19552 talks about the validity of Hindu marriage act –

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party,- (a) is incapable of giving a valid consent of it in
consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such
a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) the bridegroom has completed the age of twenty one years and the bride the age of
eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two

Divorce is the golden key to the legal cage of marriage. The term divorce comes from the
Latin word divortium which means to turn aside; to separate. It is the legal cessation of a
matrimonial bond.

Section 13(i)3 of Hindu Marriage Act talks about the adultery.

In personal law adultery is the ground for divorce any husband or wife has after
solemnization of marriage had voluntary sexual intercourse with any person other than his or

2 Bare act
3 BARE ACT
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her spouse. In this both husband and wife is guilty of such offence. Such offence must be
voluntary and consensual and other than his/her wife. If party to the marriage commits
adultery due to unconscious, mental illness, fraud, forcefully, kidnapping then he/she will be
not liable for adultery.

In criminal law adultery is defined is defined under section 497 4 of Indian penal code, 1860
that Whoever has sexual intercourse with a person who is and whom he knows or has reason
to believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor.

Section 497 penalizes sexual intercourse of a man with a married woman without the consent
of her husband when such sexual intercourse does not amount to rape. That is, it draws a
distinction between consent given by a married woman without her husband’s consent and a
consent given by an unmarried woman. It does not penalize the sexual intercourse of a
married man with an unmarried woman or a widow or even a married woman when her
husband consents to it. In case the offence of adultery is committed, the husband cannot
prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence
of adultery can be committed by a man with a married woman only, the wife of the man
having sexual intercourse with other unmarried women cannot prosecute either her husband
or his adulteress. What is interesting here is that the section itself expressly states that the
unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery
therefore is an offence committed against the husband of the wife and not against the wife.

OBJECTIVES OF THE STUDY

The objectives of the study to

4 IPC BARE ACT

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 (i) To study the ground for divorce under the Hindu marriage act.
(ii) To study the adultery as a ground for divorce and the punishment for adultery
under criminal law.

HYPOTHESIS
The researcher comes with the following hypothesis,

(i) Having sexual intercourse with a person other than spouse is not enough for
divorce.
(ii) Male personal is only punishable for this offence.

RESEARCH METHODOLOGY
The researcher will depend upon the existing materials like books, case laws, thus the
researcher will opt doctrinal method of research. The researcher will visit library and refer the
primary and secondary sources available there.

SOURCES OF DATA
The researcher will go for primary and secondary sources of data. Secondary sources are all
those work done on primary sources.

LIMITATIONS OF THE STUDY

The researcher will have time limitation as he has to complete this project within one month.

SCOPE OF THE STUDY

This research will be a source for a further researcher. This research will give him/her the
basic ideas in a very simple manner.

CHAPTER II
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 ADULTERY IN PERSONAL LAW AND CRIMINAL LAW
Adultery is a serious matrimonial lapse and even the most liberal of societies view this as
extremely damaging to a harmonious matrimonial relationship. Under almost all the personal
law statues in India adultery of a spouse entitles the other to seek divorce or judicial
separation though the verbal formula to dente deviation from marital fidelity is disentitled to
claim maintenance under the section 125 5of crpc ,1973.

Under section 13(i)6 and section 10(i) 7of the Hindu marriage act, 1955, either the husband or
the wife may file a petition for dissolution of marriage or judicial separation respectively, on
the ground that the other party ha after the solemnisation of marriage had voluntarily sexual
intercourse with any person other than spouse. The provision is same as the Hindu marriage
act, 1955. Under the Muslim law husband can divorce his wife without assigning any reason.
So far as the wife is concerned though adultery by the husband is not clearly mentioned as the
ground for divorce, but an inference to this effect can be drawn by a clause in the dissolution
of Muslim marriage act, 1939, which provides that she shall entitled to claim divorce o the
ground of cruelty.

It would pertinent to point the during the past few years law has undergone an extensive
change. So far as the Hindu personal law and special marriage are concerned, prior two the
1976, there were two categories of adultery entitling the petitioner to two different reliefs- a
lesser relief is judicial separation for this petitioner has prove that just a single act of adultery
of the respondent. And for serious relief by way of divorce decree. Since divorce is more
serious offence for this petitioner has to prove the more serious act of respondent. After 1976
amendment in section 13(i) even a single act of voluntarily sexual intercourse of respondent
other than his/her wife is sufficient for the decree of divorce. The new provision do not
include the word adultery but use the word voluntarily sexual intercourse with other than
his/her wife.

It is only the post marriage lapse that gives petitioner aground for divorce against the
respondent not pre marriage act. If a person committed the sexual intercourse to other person
that not fall in the ambit of adultery. The act of sexual intercourse must be voluntarily not by
fraud or force or by any means.

5 Bare act of crpc

6 Bare act of family
7 Ibid6
8|Page Personal Law
The burden of prove lying on the petitioner who is alleging the same adultery may be prove
by direct evidence of circumstantial evidence leading to the inference of the act or by
confession or where the respondent the wife given the birth of child that father is other than
her husband. Rajasthan high court pointed in the B.D.CHARLES V. NRA BENJAMIN 8 case
that direct evidence of adultery is very rare so that can be established by circumstantial
evidence. And that circumstances must be reasonable so that common man inference from
that evidence.

In Sunil Trambake v. Leelavati Trambake9 case wife alleged that husband has entered into
the bigamous relation and had a child from that marriage so she sought for DNA test in trial
court, court approve that but same was challenged in high court , court upheld the decision
and said that DNA test should not be directed as daily routine but on exceptional case.

So in personal law spouse can file case for divorce on the ground of divorce that mentioned
in the section 13(i) of Hindu Marriage Act, 1955. And spouse may claim maintenance. But as
far their punishment is concern that mention in section 497 of Indian penal code,1860.

Adultery an offence in criminal law

Section 49710 of Indian penal code,1860 talks about the adultery that Whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe to be the wife
of another man, without the consent or connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which may extend to five years, or with
fine, or with both. In such case the wife shall not be punishable as an abettor.

The cognizance of the offence is limited as this offence has been committed against the
married women only and the male offender alone has been made liable under this act. So
adultery is the offence that had been committed by a third person against the husband in
respect of his wife. It is not necessary that offender should know that offender know that
whose wife she is, provided that he knows that she was a married women.11

To prove the offence of an adultery following essentials are required to prove12 :-

8 AIR 1979Raj 156

9 AIR 2006 Bom 140
10 Bare act ipc
11 Madhub chunder giri, (1873)21 WR(Cr) 13.
12 Ratanlal and dheeraj lal
9|Page Personal Law
(a) sexual intercourse by a men with a women who is and whom he knows or has reason to
believe to be a wife of another man.

(b) such sexual intercourse must be without the consent of of the husband.

(c) such sexual intercourse must be not amount to rape.

This provision is under a strong criticism. In this section only men are liable for the offence
because women are the property of another man. In this section expressly provide that
women are not punished even as the abettor of the offence.

No court shall take cognizance of the offence under this section except upon a complaint
made by the husband of the women or in his absence made with the leave of the court by the
other person who had care of such women on his behalf at the time when such offence was
committed . like wise if the husband is under eighteen years of age, or is an idiot or lunatic or
is from sickness unable to make complaint, some other person may make a
complaint(criminal procedure code section-198).

CHAPTER III

DIFFERENT GROUNDS FOR DIVORCE

In Hindu law there is a provision of monogamy. Hindu believes do not accept the provision
of polygamy marriage. In Hindu marriage not for only one life but for seven life. Before 1955

10 | P a g e Personal Law
of Hindu marriage act Hindu marriage is sacrament it is indivisible but after this act divorce
provision is also included and there are different grounds of divorce are mentions here.

Section 1313 talks abound different grounds of divorce - (1) Any marriage solemnized,
whether before or after the commencement of the Act, may, on a petition presented by either
the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with
any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion ; or

(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

Explanation- In this clause- (a) the expression "mental disorder" means mental illness,
arrested or incomplete development of mind, psychopathic disorder or any other disorder or
disability of mind and include schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind
(whether or not including sub-normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the other party and whether or not
it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive; Explanation.- In this
sub-section, the expression "desertion" means the desertion of the petitioner by the other

13 Bare act
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party to the marriage without reasonable cause and without the consent or against the wish of
such party, and includes the wilful neglect of the petitioner by the other party to the marriage,
and its grammatical variations and cognate expression shall be construed accordingly.

(1-A) Either party to a marriage, whether solemnized before or after the commencement of
this Act, may also present a petition for the dissolution of the marriage by a decree of divorce
on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage
for a period of one year or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage
for a period of one year or upward after the passing of a decree of restitution of conjugal
rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of
divorce on the ground-

(i) in the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before the commencement or that any other wife of the husband
married before such commencement was alive at the time of the solemnization of the
marriage of the petitioner: Provided that in either case the other wife is alive at the time of the
presentation of the petition;

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality; or

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of
1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2
of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898),
a decree or order, as the case may be, has been passed against the husband awarding
maintenance to the wife notwithstanding that she was living apart and that since the passing
of such decree or order, cohabitation between the parties has not been resumed for one year
or upwards;or

12 | P a g e Personal Law
(iv) that her marriage (whether consummated or not) was solemnized before she attained the
age of fifteen years and she has repudiated the marriage after attaining that age but before
attaining the age of eighteen years. Explanation.- This clause applies whether the marriage
was solemnized before or after the commencement of the Marriage Law (Amendment) Act,
1976.

13-A. Alternate Relief in Divorce Proceedings.- If any proceeding under this Act, on a
petition for dissolution of marriage by a decree of divorce, except in so far as the petition is
founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section
13, the court may, if it considers it just so to do having regard to the circumstances of the
case, pass instead a decree for judicial separation.

13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce may be presented to the District Court by both
the parties to a marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have
been living separately for a period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.

CHAPTER IV

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 JUDGEMENT AND COMMENTRIES
Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of Hindu
marriage act,1955 which states that any marriage before or after the commencement of this
act shall be dissolved by a decree of divorce on the ground that the other party had voluntary
sexual intercourse with any person other than his or her spouse after the marriage. The
following are the cases on the basis of which adultery as a ground of divorce can be analysed:
-

Earnest John White vs. Mrs. Kathleen Olive White and Others (AIR 1958 SC 441): -In
this case the husband filed a decree of divorce on the grounds of adultery. Trial court granted
the divorce decree but high court reversed the judgement of high court. The case went on
appeal to the Supreme Court. The question before the Supreme Court in this case was
whether just an inclination to have sexual intercourse and thereby leading to adultery would
arise in this case or not by living in one room as the respondent and the appellant wife stayed
in one room for a night. The court held that her conduct as shown by the evidence clearly
justifies that she has committed adultery and therefore Supreme Court reversed the order of
high court and thereby granting the decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285): - In this case the
respondent that is the wife filed a petition for divorce seeking judicial separation against her
husband. Accordingly the high court of Karnataka granted a decree for judicial separation and
ordered husband to give maintenance charges to his wife and daughter. But the husband after
two years filed a petition for divorce under section 13(1-A)(a)of the Hindu marriage act, 1955
on the ground that there has been no resumption of cohabitation between the parties for more
than one year after passing the decree of judicial separation. Hence the question before the
Supreme Court was that whether this can be taken as a ground of divorce even after the
husband and the wife as in this case are living under the same roof even after the passing of
the decree of judicial separation. The court held that husband who continued to live in
adultery even after the passing of decree of judicial separation with his wife will not succeed
for a petition of divorce under section 13(1-A)(a).

Chiruthakutty vs Subramanian14

The respondent married the appellant in March, 1969. As per the averment in the petition,
three children were born to them out of this wedlock. The respondent underwent vasectomy
14 AIR 1987 Ker 5
14 | P a g e Personal Law
operation on 8-1-1976. Thereafter the appellant and respondent lived together. On 30-8-1978
the appellant gave birth to another child. The allegation is that the appellant was having illicit
connection with others and she became pregnant out of it and therefore she had committed
adultery. Divorce was prayed for on that ground.

In the counter filed by the appellant she denied the allegation of adultery. Her contention was
that the child born on 30-8-1978 was begotten through the respondent and none else.

In this court decided that there is a chance of failure in Vasectomy operations. The respondent
has not established that the appellant is guilty of adultery. So court dismissed the case.

Punishment and liability under the provision of section 497 of Indian penal code, 1860 on the
ground that the other party had voluntary sexual intercourse with any person other than his or
her spouse after the marriage. The following are the cases on the basis of which adultery as a
ground of divorce can be analysed:-

CHAPTER V
CONCLUSION
After going through this entire project i come to a conclusion that my first and second
hypothesis proved correct .Under section 13 (i) of the Hindu Marriage Act, 1955 having
sexual intercourse other than wife is sufficient ground for divorce. Both husband and wife has

15 | P a g e Personal Law
right to claim divorce on this ground. And under the section 497 of Indian penal code if a
person sex with a women who is wife of another person shall be liable for this offence. Only
male member is liable for this offence married women will not be liable for this offence even
if she is the abettor.

In my opinion, women should be equally punished for adultery as men and for that section
497 of IPC must be made gender neutral in India that is both men and women must be
punished equally or no one at all. In today’s era women is nowhere less than men in any
aspect such as getting highly reputed jobs, getting a top corporate or government job and
hence if they are capable of being equal in every aspect then they must be punished in this
respect also. If we see the law in other countries then there the wife is also punished such as
in France, the wife is punishable for this offence for a minimum of three months to maximum
of two years but the discretion is upon the husband whether he accepts her again as his wife
or not and the adulterer is also similarly punished. But if we look at other countries such as
Malaysia, Hongkong and Singapore there adultery is not punishable at all. In the most
powerful country of the world that is U.S.A, there is no gender discrimination and either of
them are punishable or not punishable at all. Hence it is high time that this law must be
revisited in India and section 497 must be amended to meet present circumstances.

BIBLIOGRAPHY

PRIMARY SOURCES
Bare act of Hindu Marriage act,1955

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Bare act of Indian penal code,1860

SECONDARY SOURCES

Books
Paras DiwanModern Hindu Law (Allahabad Law Agency, 2013 10th Edition)

Paras Diwan and PeeyushiDiwanFamily Law (Allahabad Law Agency, 2013.)

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