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The Supreme Court Says Adultery Is Not Cruelty, But Is It Worth It?

Extramarital affairs can leave a trail of tragedy and destruction.

16/12/2016 12:29 PM IST | Updated 19/12/2016 8:37 AM IST
Neil Webb

In a recent judgement, the Supreme Court ruled that adultery does not constitute cruelty. The facts of the case were that Anand* was married to Meenakshi in 1997. Meenakshi suspected Anand of having an extramarital affair with Akanksha and confronted him about this many times. Her protestations fell on deaf ears, however, and unable to tolerate the situation any further Meenakshi committed suicide in 2004. A case was filed in a lower court, then went into appeal in the high court and eventually the Supreme Court.

Today with all the devices available to us it is easy to have an extramarital affair but on the flipside it is also easy to get caught.

The husband finally got relief in the Supreme Court where a bench of Justices KS Radhakrishanan and PC Ghose ruled, "Essentially, we are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage, and failed to discharge his marital obligations, as such would not amount to cruelty."

Adultery as contemplated under the Hindu Marriage Act, 1955, is one of the grounds for divorce:

Section 13. 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...

Marriage is based on commitment and loyalty to the spouse. Adultery is extramarital sex that is considered objectionable on social, religious, moral or legal grounds. The legal definition of adultery, however, varies from country to country and statute to statute.

In an interesting case that was referred to me, Rohit, a TV producer, filed for divorce against his wife of eight years, Priyanka, a media professional. They have no children and for the past four years Rohit has been suspecting Priyanka of having an affair with her boss at work. He cited adultery as a ground for divorce. However when the matter reached the cross-questioning stage Rohit realised he had a tough job at hand.

Usually in the case of adultery, direct proof is extremely difficult to obtain. One usually needs to rely on circumstantial evidence about adultery. The burden of proving adultery in a matrimonial matter lies on the person alleging the adultery. This in a way prevents one spouse from unnecessarily maligning the other in the marriage, as Rohit found out.

Adultery as a general rule is established by presumptive proof based on:

1. Confessions by a party that s/he has committed adultery. If the spouse who has been accused of adultery confesses to having done so, such confessions can be used as evidence in court. In one case that I am handling, the husband Deepak has confessed to an extramarital affair to his wife Suparna, after which they decided to divorce. However, although Suparna can file for divorce under the provision of adultery as provided under the Hindu Marriage Act, she has decided not to do so. Instead, after discussions with the family she has decided to file for divorce by mutual consent to avoid any further pain and embarrassment to them and to their relatives.

2. Circumstantial evidence. The evidence should be enough so that all the facts of the matter lead up to the indisputable conclusion that one of the spouses is having an extra-marital affair.

It's not the actual act of committing adultery but also the collateral damage that causes anguish to the aggrieved parties.

Adultery is still considered as one of the reasons/grounds for filing for divorce in India, and the recent ruling by the Supreme Court does not change that. However, it provides a different legal twist. In fact the bench has been very clear in its judgement where it has stated:

"... we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify."

It's not the actual act of committing adultery but also the collateral damage that causes anguish to the aggrieved parties. Like in the case before the Supreme Court, the wife Meenakshi committed suicide. Even Akanksha committed suicide and so did her mother and brother who were unable to cope with the emotional trauma and upheaval. Anand has been in various courts for the past decade. It really does make you wonder whether an extramarital affair is worth so many lives. His bad decisions have resulted in a trail of destruction and tragedy.

Today with all the devices available to us it is easy to have an extramarital affair but on the flipside it is also easy to get caught. WhatsApp chats and Facebook accounts leave a long electronic trail which can actually become a noose around your neck in court if you are having an affair. Even pictures that are clicked together and uploaded on social media can serve as evidence and substantiate the claims of adultery in a marriage.

* All names changed

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