Adultery verdict applies to all religions, but laws of matrimony remain separate
New Delhi, Sep 27: The Supreme Court struck down Section 497 of the Indian Penal Code, which criminalised adultery. The court however made it clear that adultery can be a ground for divorce.
Further the court also said that if a person commits suicide due to the adulterous relation of the partner, then it could amount to abetment to suicide if there is sufficient evidence. To put the entire judgment in simplest of terms, the verdict specifically says that adultery is not a criminal offence.
Now coming to the matrimonial part of it. Each religion is governed by its own matrimonial law. Striking down of Section 497 would apply to a Hindu, Muslim, Christian and all other religions in India. However each religion would be governed separately by the respective matrimonial laws.
Senior advocate, Navkesh Batra says that these are different issues. One is working in the sphere of the criminal law and the SC has said that adultery is not an offence. The other would be under the ambit of the matrimonial law, which would work separately.
The Hindu law:
Under Section 13 (1) of the Hindu Marriage Act, adultery is described as, " Any marriage solemnised, whether before or after the commencement of this 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 has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."
It has been said that in order to prove adultery, two elements would be necessary- the intention to be adulterous and the opportunity to gratify such an intention. Further the burden of proof in such cases would lie on the petitioner and it is their duty to show the court that the respondent is guilty.
The Muslim Law:
The Muslim Marriage Act does not have any specific provision for adultery. However Section 2 (viii) of the Muslim Marriages Act says that if a man associates himself with a woman of evil repute or leads an infamous life, it amounts to cruelty to the wife.
In the Kalim Uz Zafar case the court had held that the term cruelty can be interpreted widely so as to include mental and physical cruelty.
Under the concept of Lian in the Islamic laws, when a man accuses a woman of adultery, the wife can bring a claim for dissolution of marriage. The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty. In another ruling the same HC had said that where a man himself committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.
The Christian Law:
Section 10(1)(i) of The Divorce Act of 1869 says, "Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery."
Earlier only a Christian man could file for divorce on the grounds of adultery. For a Christian woman to file for divorce on this ground, it either had to be incestuous or coupled with other grounds like desertion or cruelty.
The Parsi law:
Under Section 32 (d) of the Parsi Marriage and Divorce Act of 1936, any married person could file for divorce if the spouse has committed adultery. Under the section there is a limitation period of two years from the point where the petitioner comes to know about an adulterous relationship.
The section reads, " when a married person has sexual intercourse with either a married person or an unmarried person, this section is attracted.
Section 34(d) grants the right of a married person to sue his/her spouse on the grounds of adultery, fornication, bigamy, rape or any other unnatural offence.