ADULTERY – A TRANSFORMING GROUND OF DIVORCE IN TECH ERA

I. INTRODUCTION

Adultery since historical times is considered to be a blot on the marital life of individuals and
continued to be seen as a shameful act in societies even to this era of post-modernism which is
witnessing rapid change in the life-style of people around the globe. Since this is a serious
matrimonial lapse and even the most liberal of societies view this as extremely damaging to a
harmonious marital relationship1 and that’s why the law takes it into consideration while looking
into the matters of matrimonial dispute. The term "adultery" has its origin in the Latin term
adulterium. Though it has not been defined in personal laws properly but it is understood as a
voluntary sexual action by a married person with another married or unmarried individual.
Almost every religion condemns it and treats it as an unpardonable sin2.
Section 497 of IPC which has been declared as unconstitutional by Supreme Court in case of
Joseph Shine V. Union of India3 defined it as “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”. In plain terms of matrimonial jurisprudence, it is the

voluntary sexual intercourse by a married person and a person of opposite sex, the two persons
not married to each other.4 The provisions regarding adultery has been changing in different
periods of time and in India, it was dealt as both a civil and criminal wrong but now this has been
decriminalized and left as a ground for divorce. In England this has been treated as a civil wrong
but in India it was not feasible to do so due to sanctions and commands of different religious
authorities over adultery. In penal laws there has been a presumption about the female
adulterator that she is not guilty at all and the burden was shifted to the male associated with that
which has been criticized in the feminist interpretations over the years. In the age of online
communications, chances of adultery have grown and whether infidelity can be construed as a

1
Kusum, Family Law Lectcures :Family Law I, (4th Edn., Lexis Nexis 2015)
2
Encyclopaedia Dictionary of Religion (The Sisters of St. Joseph of Philadelphia, 1979).
3
(2019) 3 SCC 39.
4
L.I. Stranger-Jones, Eversley's Law of Domestic Relations, (Sixth Edn. 1951).
part of adultery is the new point of debate. Its form and scope is subject to changes over the
different period and they have to pass the test of transformative constitutionalism.

II. HISTORICAL& RELIGIOUS BEDROCK OF ADULTERY

The changes in the pattern of living is evident in the society which has moved much further from
old complex structure of religious laws governing the social as well as personal life of the
people. The religious laws have provided guidelines on several issues which also encircles
personal behaviour of individuals. Ancient laws on adultery especially in India were of
patriarchal in nature and often severe restrictions were imposed on women in the garb of these
laws. In ancient India, the laws of Manu are striking on this point, "though destitute of virtue or
seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly
worshipped as a god by a faithful wife"; on the other, hand, "if a wife, proud of the greatness of
her relatives or (her own) excellence, violates the duty which she owes to her lord, the king shall
cause her to be devoured by dogs in a place frequented by many".5

The scene of Abrahimic religions is as much stringent with oriental one where adultery was seen
as an act harmful not only for the institution of marriage but also to the society at large. Today,
Jewish law forbids a man to continue living with a wife who cheated on him, he is obliged to
give her or get a bill of divorce written by a scribe. Neither is the adulteress permitted to the
adulterer, who must also give her a bill of divorce. In the Greco-Roman world there were
stringent laws against adultery but it was applied only to those having sex with a married
women. In Christianity, Adultery before the New Testament was punishable with death but after
New Testament, it was considered as a grave sin and great social wrong. As one verse of Bible
notes that “Marriage should be honoured by all, and the marriage be kept pure, for god will judge
the adulterator and sexually immoral6”. In Judaism, adultery was forbidden, but this did not
apply to a married man having relations with an unmarried woman. Only a married woman
engaging in sexual intercourse with another man was counted as adultery, in which case both the
woman and the man were considered guilty. Islam treats adultery as a ground of divorce in both
pre-marital and post-marriage period and regards this as a grave sin. Thus since ancient times,

5
Manu, IX , 101-102.
6
The Bible, Hebrews 13:4.
adultery has been subject to severe sanctions, including the death penalty, and stoning to death. It
has been a ground for divorce under fault based divorce laws.
III. PERSONAL LAWS ON ADULTERY AS A GROUND FOR DIVORCE

III.I ADULTERY& HINDU PERSONAL LAWS

The Hindu Marriage Act, 1955 allows divorce on the ground that a party is ‘living in adultery’.
Single or isolated acts of adultery will entitle the other party to seek only judicial separation
under section 10 of the Act. When intercourse takes place by force or fraud, it cannot amount to
adultery. Mere caresses or other acts of intimacy with another’s wife do not amount to adultery
unless there is sexual union though it is not necessary that the sexual act should have been
completed.7 The conduct of parties may, off course raise a presumption of adultery but which
cannot be drawn when it is shown that the man was impotent. Sexual intercourse with a person
other than his or her spouse would constitute adultery and hence it a married man marries again
and starts living with the second wife then the man, apart from being guilty of bigamy, is also
living in adultery.
In the case of Ammini E.J. v. Union of India8, the Kerala High Court has held that the husband is
in a favorable position with respect to it being a ground for divorce because the wife has to prove
adultery along with some other aggravating circumstances and hence it is discriminatory towards
the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery,
without any other qualifying offence such as cruelty or desertion. Before the enactment of the
Marriage Laws, 1976, adultery was treated as a conduct of grave immorality. It was a thing of
grave shame irrespective of the gender; however it wasn’t a ground for divorce. After the 1976
Amendment, the grounds for judicial separation and divorce are the same and it is a mark of
great development in the Hindu Personal Laws.

ADULTERY UNDER MUSLIM LAW

7
Dennis v. Dennis, (1955) 2 All E.R. 51.
8
AIR 1995 Ker 252.
In Muslim law offence of adultery is severely dealt with. a false charge of adultery by the
husband against his wife entitles the latter to sue for divorce. This form of divorce is known as
lian and if the husband persists on the charge, a decree of divorce is possible under the
Dissolution of Muslim Marriage Act, 1939. Similarly, if the husband associates with women of
evil repute and leads an infamous life the wife is entitled to a decree of divorce. It seems that
isolated acts of unfaithfulness or immorality would not be a sufficient cause under the
Dissolution of Muslim Marriage Act. A Muslim husband has a right to put an end to the marriage
by pronouncing Talaq and in case the wife is guilty of adultery the husband may put an end to
the marriage if he feels so.

EVIDENCE TEST - The act of adultery is not easy to prove through direct evidence and thus
the circumstantial evidence which is put forth by the party seeking divorce. Adultery as a general
rule is proved by presumptive proof based upon; (A) circumstantial evidence; (B) evidence of
non-access and birth of children; (C) contracting of venereal diseases; (Iv) by evidence of visits
to houses of ill repute; (V) decrees and admissions of the parties which should generally be
corroborated though in exceptional circumstances, even if uncorroborated they may be acted
upon.9 The true test where a confession or admission of adultery made by the other spouse is
relied upon would seem to be that the court should be satisfied from all the surrounding
circumstances that the averments are true and there is no collusion. If so satisfied it is open to the
court to grant relief, notwithstanding the absence of independent corroborative testimony10. If a
party starts living in adultery with another person other than his or her spouse after the judicial
separation, then it forms a ground for divorce. The Supreme Court has relied on the decision of
Privy Council of Preston Jones v. Preston Jones11 laying the correct test, that the court must be
satisfied beyond reasonable doubt about the commission of the matrimonial offence and that the
evidence must be clear and satisfactory beyond mere balance of probabilities.

The spouse who wants to file a divorce petition has to substantiate the statements with proper
evidence. The Indian Courts time and again had stressed that adultery has to be proven beyond
reasonable doubt. However, in the recent years, the Supreme Court is seen to be deviating away

9
Mahalingam Pillai v. Amsavalli, (1956) 2 M .L.J. 289
10
Mulla, Hindu Law (13th ed. LN, 1966).
11
(1951) A.C. 391.
from such notions stating that proving beyond reasonable doubt is essential in criminal cases and
not in civil cases. In the case of Dastane v. Dastane12, the apex court held that there certainly is
no necessity of the presence of proof beyond reasonable doubt where personal relationships are
involved especially those between a husband and wife.

IV. ONLINE INFIDELITY & ADULTERY

As far as the early penal provisions and definition of adultery is concerned then they are
becoming much obsolete in the modern times as the internet revolution has engulfed personal
lives of individuals with it. A lot of people now spend their time on Internet and different social
media platforms, instances of infidelity with their partners have grown sporadically with the
advent of online means of communication. Given the advent, variety, and prevalence of online
sexual gratification13 ( any and all online activity that could lead to sexual satisfaction), it is not
difficult to imagine that many Internet users are engaging in online sex (two online users
engaging in a discussion of sexual fantasies, usually while self-stimulating sexually). The major
arises here is that because online infidelity lacks in-person contact; it does not qualify as adultery
in most jurisdictions allowing fault-based divorce on that ground. Assessing the age-old issue of
adultery through the lens of modern technology raises the question of whether family law is
lagging behind the technological advances that invade its sphere.14 The technical advancement
has posed new challenges before the law and the dynamics of the relationship is changing day by
day.

Now the major question before the judicial authorizes is that how online infidelity constitutes
adultery as the limits and its extent varies in different cases but it certainly constitutes the
elements of adultery. Although further empirical studies are needed and not all infidelity is
necessarily adultery in the eyes of the law, several considerations support the argument that
certain instances of online infidelity do qualify as adultery. First, many experts have argued that

12
1975 AIR 1534
13
Peter D. Goldberg, Cybersex: The Impact of a Contemporary Problem on the Practices of Marriage and Family
Therapists, (2008) J. MARITAL & FAM. THERAPY 34
14
Michelle L. Evans, Note, Wrongs Committed During a Marriage: The Child That No Area of the Law Wants to
Adopt, (2009) 66 WASH. & LEE L. REV. 465
online infidelity causes the same types of harms as does traditional infidelity.15 Second, early
studies indicate that the younger generation, which is arguably more, informed and accustomed
to technology, equates online infidelity with traditional adultery. Third, recent trends in the
current law of adultery indicate that many courts are moving away from a strict definition of
adultery by recognizing that certain in-person sexual activity that is “less than” intercourse still
qualifies as adultery. Some state jurisdiction of the US recognizes online sexual relationship as
adultery while some of the state jurisdictions don’t takes into account such developments.

In India, whether the court takes cognizance of such acts as adultery is a growing debate for the
policymakers and academia. In recent researches into the psychology of divorced couples or
those couples with strained relationship shows that it causes serious damages to the matrimonial
relationship. A senior psychologist of Mumbai has commented on this issue that “Mostly those
involved in such behavior and women are as much a part, don’t think they are being unfaithful.
They don’t see it as emotional infidelity; the tremendous hurt and a sense of betrayal felt”.16 The
relationship has been under attack due to such behavior and it can be observed that such
incidents cause a block in long time which ultimately results in irretrievable breakdown of
marriage. First, the institution of marriage involves emotional and sexual exclusivity and hence,
sexual involvement with someone other than the spouse is considered unacceptable. Second, it
typically occurs in secrecy, and is usually kept hidden from the spouse. Third, the consequential
nature of chat room liaisons and the breach of trust it can create, substantiate their classification
as infidelity. Most spouses feel as betrayed, angry, and hurt by online infidelity as they would if
skin-to-skin adultery had taken place.17 With regard to considering this as an ingredient of
adultery the laws laid by the Apex Court is not satisfactory. In the case of Dharmendra Kumar V.
Usha Kumar18 the court has made it clear that “‘wrong’ means only serious or grave misconduct
on the part of the party seeking divorce or relief against the other”. Although more empirical
studies are needed, this potential age differentiation on the topic could be a very relevant
consideration in proactively reconsidering the parameters of adultery in family law. After all, the

15
Bethany Catron, Grounds for a Fault Based Divorce, (2005).30 U. DAYTON L. REV. 339.
16
Shai Venkatraman, ‘Online infidelity’ Livemint ( 12 Aug 2013)
<https://www.livemint.com/Leisure/1ZSPmZTm2bEGDsThemniUL/Internet-infidelity.html>
17
Angelina Mao& Ahalya Raghuram, ‘ Online Infidelity: The New Challenge to Marriages (2009) Ind. J. of
Psychiatry 302
18
AIR 1977 SC 2218
very purpose of the law is to reflect societal mores of the times. Thus, these early surveys
indicate that future generations may be even more hostile to online infidelity, making the theory
more concrete that certain forms of it should qualify as adultery as a ground for divorce in fault-
based divorce jurisdictions.

V. CONCLUSION

The existing age old law of adultery, against this backdrop, deserves a serious relook and
revision to the effect that a person, male or female, who, being married, has sexual intercourse
with a female or a male (as the case may be) not his or her spouses without the consent or
connivance of such spouses be brought in court of law for divorce with acceptance of new social
relaities. As far as the laws of adultery is considered, the spouse of the errant spouse be allowed
not only to seek divorce from the other life partner but also to initiate legal proceedings with a
view to fixing criminal liability of the "outsider" for wrecking the marriage. The latest proposals
for reform of the Fifth and the Fourteenth Law Commissions of India deserve serious and
immediate attention of the legislature.

Online infidelity is a serious problem that adversely impacts spouses and society. While many
jurisdictions consider adultery as one factor in determining numerous legal rights of adulterous
spouses, the current definition of adultery in most jurisdictions is not broad enough to include
online infidelity. It could be that the current law of adultery has lagged behind the pace of
technology, considering the current and future opportunities for online infidelity; the evolution of
the views on marriage and infidelity; the similarity of the effects of traditional adultery and
online infidelity; the views of younger people; the direction of the law of adultery; and the stated
reasons for finding certain activity to be adultery. Therefore, it may be time to expand the law of
adultery to include some, but not all, instances of online infidelity. Infidelity is a problem as old
as the institution of marriage itself, but the new mechanisms to achieve it demand consideration
of whether the current law of adultery should be revamped. It is likely that Court will have to
decide whether online infidelity reaches the level of adultery in the eyes of the law. Certainly, the
law is supposed to mirror societal mores, and research on how exactly society feels about online
infidelity is still in its infancy. Arguably, because the harm of traditional adultery is erosion of
intimacy between the spouses, similar erosions, like some forms of online infidelity, may also
qualify. Taking this into account, adultery as a ground for divorce has certainly came a long way
from its inception in the old religious laws which reflected societal position of that time and now
in this tech era, it needs to be revamped or it will do same with society.