Under the Hindu Marriage Act, 1955, extra-marital affairs (adultery) constitute a valid ground for divorce under Section 13(1)(i), provided the respondent is “living in adultery”. While decriminalized in 2018, adultery remains a strong civil ground for divorce or judicial separation if proven through evidence like photos, videos, or birth of a child.
Key Legal Aspects of Adultery under HMA
- Definition: Voluntary sexual intercourse with any person other than one’s spouse after marriage.
- “Living in Adultery”: Section 13(1)(i) requires more than a single isolated act; it implies a continuous course of adulterous conduct at the time the petition is filed.
- Alternative Grounds: Even if not “living in” adultery, a single act of infidelity can be used to prove “cruelty” under Section 13(1)(i-a).
- Evidence Required: Direct evidence is rare, so courts accept circumstantial evidence, such as testimony of witnesses, hotel records, or birth of a child, as proof.
- Burden of Proof: The petitioner must substantiate the claims with sufficient, convincing evidence.
- Maintenance Implications: A wife living in adultery may lose her right to claim maintenance under Section 125(4) of the CrPC.
Commonly Used Evidence for Proving Adultery:
- Photographs/videos showing intimate relationships.
- Communication records (WhatsApp, emails, social media).
- DNA reports or proof of an illegitimate child.
- Testimony of private investigators or witnesses.
Disclaimer: Divorce laws can be complex and are highly fact-dependent. Consulting with a legal professional is advised