Marriage under Hindus was traditionally considered sacrosanct, and the sacred union was indissoluble. But with changing social realities & growing individual autonomy, it became necessary to acknowledge that some marriages fail, beyond repair. After the implementation of the Hindu Marriage Act, 1955, it laid down the grounds of divorce for Hindus, Sikhs, Jains and Buddhists, which marked a shift from sacramental rigidity to realism. Adultery is one of the grounds available to both parties to dissolve the marriage & is considered a serious matrimonial offence. 

Introduction

A marriage is built on the foundation of fidelity and mutual trust, and adultery strikes at the core foundation by violating the exclusivity of the marital bond. In 2018, by a judgment pronounced by 5 five-judge bench of the apex court in the matter of Joseph Shine vs Union Of India (2019) [Joseph Shine vs Union Of India, 2019 (3) SCC 39], adultery was decriminalised by striking down Section 497 IPC. However, it remains a valid ground for divorce. In contemporary times, it has a reasonably high share, amounting to 25-30% of divorces, and reports show that divorce due to adultery has seen a three to fourfold rise, driven by factors like better awareness of legal rights, economic independence, and less social pressure to stay in unhappy marriages. Adultery remains a relevant & contentious ground. 

Meaning & Statutory Basis: Adultery

The word “Adultery” derives from a French word “avoutre”, which means ‘to corrupt’. While the dictionary meaning of adultery is when a married person enters into penetrative intercourse with another person with whom they have not entered into a marriage. The Hindu Marriage Act, 1955, lays down 9 fault-based grounds available to both parties & 2 grounds exclusively available to the wife, for divorce of a valid marriage under section 13 of HMA. Adultery is mentioned explicitly in Section 13(1)(i), it says “Any marriage solemnized, 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 solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”.  

In simple words, any spouse after the solemnization of a valid marriage voluntarily engages in a sexual relationship with a person who is not their spouse, which amounts to adultery. The emphasis had been laid on voluntary sexual intercourse & with any person other than their spouse. It does not involve close friendships or emotional affairs; the courts expect actual proof of sexual contact. 

Before 1976, the law talked about ‘living in adultery’, which meant multiple occurrences of a sexual act, but after the 1976 amendment, even a single occurrence can constitute the offence of adultery. The amendment also made the ground gender neutral, revoking old bias, where only adultery of a wife mattered more.

Essentials to invoke Adultery

Burden of proof lies on the petitioner to prove their spouse’s engagement in an adulterous relationship by a preponderance of possibilities, unlike criminal, ‘beyond a reasonable doubt’. 

Circumstantial evidence forms conclusive evidence in cases of Adultery, as establishing a case of Adultery through direct evidence, like confessions or through eyewitnesses, is rare. Mere suspicion isn’t sufficient. But, there has been an incongruity regarding the extent to which circumstantial evidence can be termed or can be taken as absolute proof of Adultery. In the case of Banchhanidhi Das vs Kamala Devi (1980) [Banchhanidhi Das vs Kamala Devi And Anr., AIR 1980 ORISSA 171], it was held that circumstantial evidence should be so gripping that the only compelling inference can be Adultery. 

The essentials to establish Adultery are:

1. Existence of a valid Hindu Marriage

2. Voluntary sexual intercourse by one spouse with someone other than their spouse

3. The act must occur after the solemnization of the marriage 

There are a few exceptions to Adultery:

1. Condonation- The spouse continues cohabitation, even after the confession of an affair, or forgives their spouse & continues marital life post-adultery.

2. Connivance- When the aggrieved party secretly encourages or consents to the act of Adultery.

3. Collusion- Parties collude & conspire to fabricate evidence for divorce, leading to fraud on justice.

4. Unreasonable Delay- Petitioner delays filing without a valid reason, leading to a presumption of acceptance. 

5. Intoxication- while involuntary or voluntary intoxication of the wife is a valid defence to reject Adultery, but not a valid defence for the husband, unless there are reasonable grounds to believe that the husband had good cause to believe that the other person is his wife and not someone else. 

Judicial Interpretation on Adultery 

Indian courts, from time to time, passed landmark judgments to protect and provide justice to innocent spouses. Joseph Shine v UOI, 2019, was one of the landmark cases of adultery, striking down Section 497 IPC, which treated adultery as an offence committed by one man against another man, rejecting married women's agency and autonomy over themselves, considering them to be incapable of giving consent. Declaring it unconstitutional was a step towards uplifting the dignity of women, rejecting the idea of treating them as a commodity owned by their husbands. The Court held that Section 497 violated Articles 14 (Right to equality) and 15 (Prohibition of discrimination), as well as Article 21 (Right to life and personal liberty).

Another case law of Dastane N.G v S. Dastane (1975) [Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534], SC, established the "preponderance of possibilities" standard for proving adultery, rather than proof beyond a reasonable doubt. The civil nature of matrimonial offences allows them to be dealt with in a realistic, flexible manner, unlike criminal cases. The Court further held that matrimonial relief cannot be denied only because the Court thinks that the nature is not 'grave' or 'serious', but what matters is whether the conduct makes it unreasonable and unjust for the aggrieved party to live with the respondent.

Practical Implications in Contemporary Times

Adultery as a ground for divorce carries significant implications in current times, shifting the nature of the offence from criminal to civil and changing evidentiary patterns. With the rise of digital communication, courts increasingly rely on digital evidence to infer adulterous conduct. 

While adultery does not automatically invalidate matrimonial issues such as maintenance, custody & settlement negotiations, it does influence the court's discretion when proven. Courts exercise caution to prevent the misuse of adultery allegations as a tool for harassment or advantage in divorce proceedings. False or baseless accusations may amount to cruelty and weaken the petitioner's case. Adultery as a ground for divorce in recent times operates more as a civil consequence of marital breakdown than a moral condemnation. 

In practice, courts often encourage settlement through mediation, especially when children's custody is involved. Many times, cases convert into a mutual consent divorce once the parties acknowledge the ultimate breakdown of the marriage.

Legal Consequences of Divorce on the grounds of Adultery

No criminal punishment arises after the 2018 Joseph Shine ruling; the aftermath favours the innocent spouse. Section 25(3) of HMA states that the adulterous spouse receives less or no alimony, especially if “living in adultery”, as per the discretion of the court. Under S. 125 CrPC (now BNSS), adulterers may be disentitled to any form of maintenance or alimony. 

Custody & property rights are also influenced; in many instances, custody of the children is denied on moral or emotional grounds provided in Section 26 of HMA, and is tilted towards the innocent parent. The guilty parent may get the right to visit, but shared custody is rare if adultery is proven. Similarly, adultery also influences rights over the property, while self-acquired property stays separate, as per Section 27 of HMA. With respect to the joint property presented, the court has discretion to make such provisions in the decree that are fair & just. 

Conclusion 

Adultery in India is still perceived as an act of breach & fallacy. At the same time, the state & courts decriminalised the matter, treating it as a matter of personal consent & a private matter. Adultery as a ground for divorce under the Hindu Marriage Act reflects the refined approach, and it's no longer about public shaming or moral judgment. The ruling in Joseph Shine marked a critical turning point by separating personal choices from criminal liability while preserving the aggrieved spouse's right to seek civil remedies. Marriage, though seen as a stable and committed institution, is based on fidelity, the very basis, i.e. mutual trust. When it is violated, the marriage breaks down in a way that can't be repaired. Courts have played an essential role in shaping the practical application of this ground, acknowledging that adultery is rarely capable of direct proof & have therefore relied on circumstantial & digital evidence, examined on the standard of "preponderance of possibilities". Likewise, the judiciary's caution against misuse, as false accusations of adultery are increasingly viewed as acts of mental cruelty rather than legitimate legal claims, is also significant. At length, adultery as a ground for divorce set out a remedial purpose. It allows the law to acknowledge that a marriage built on broken trust cannot always be repaired, and that legal closure, rather than forced continuation, may better safeguard the dignity of the individuals involved.

References:

Statutes

1. Hindu Marriage Act, 1955 (Sections 13, 25 to 27)

2. Code of Criminal Procedure, 1973 (Section 125)

3. Divorce Act, 1869

Case Laws

1. Joseph Shine v. Union of India, AIR 2018 SC 4898, (2019) 3 SCC 39

2. N.G. Dastane v. S. Dastane, (1975) 2 SCC 326

3. Banchhanidhi Das v. Kamala Devi, AIR 1980 Ori 171.

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