Adultery as a ground for Divorce

  • Extra marital sex – prior to amendment of 1976 it was living with adultery – now even a solitary instance of extra marital sex is sufficient to grant DIVORCE
  • Mere allegation of adultery without any details not sufficient
  • Mere suspicion – NO
  • Attempt to commit adultery – NO

Any petition which alleges adultery as a ground has to make adulterer as the necessary party

It would amount to non joinder of necessary party – Rajesh devi 2020 case

Adultery by its nature is a secret act.

Direct act of adultery is difficult

The prove required is based on positive evidence

Direct evidence not necessary – can be proved by oral, documentary or circumstantial evidence for an inference to be drawn beyond reasonable doubt = Case – john wite case 1956 SC

Adultery is generally proved by presumptive prove-

  1. Circumstance prove
  2. Evidence non sex and child birth
  3. Venerable diseases
  4. Admission & confession

Circumstance evidence cannot be accepted as an accepted rule –

Hence the general rule is such that a circumstances must be such that a reasonable man would come to a conclusion that there was an act of adultery

Higher degree of probability mere suspension not enough

Presumption of legitimacy highly favored by LAW.

Hence, a mere premature birth of child not enough

= birth of child by wife, where husband access not there – adultery

Evidence 112 – it can be proved

Issue Access and Not Access – where the paternity of child DNA prevails over sec 112 of evidence. Now with advancement of science there is no room of presumption.

Condonation of offences –

Section 23 2(b) – of Hindu marriage act – can condonation of cruelty & adultery

  • Forgiveness and restoration with knowledge of all material knowledge
  • With an implied condition it would not be repeated.
  • To constitute condonation – needs –forgiveness & restoration
  • SC held – reconciliation & co habiting is test of condonation .
  • Avinash eknath nikalgi cse – undertaking given by wife – subject to implied condition not to be repeated if done – fresh petition for divorce can be held – can go back to the original allegation
  • Res Judicata – when there is a decision given on the grounds but does not apply for condonation.