Saturday, July 23, 2011

Why womens are not seeking divorce when their husbands live in Adultery?

The Hindu Marriage Act provides that 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 is living in adultery.

What is Adultery?

Adultery means Sexual intercourse between a married person and a third party. Adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.

A divorce can be granted if it is proven that one partner in a marriage has had an affair and committed adultery, defined as having had sexual intercourse with a person of the opposite sex other than their spouse, and if the spouse finds it intolerable for the marriage to continue.

When applying for divorce on grounds of adultery, it is necessary to provide the courts with as much evidence as possible about the alleged adulterous affair, such as places and dates. If the partner who has had the affair or affairs does not contest the divorce, then it will usually be granted with little difficulty. However, if the divorce is contested, detailed evidence will be required to satisfy the courts that the affair actually occurred, and the process may be lengthy and expensive. It is not necessary to name the ‘co-respondent’ – the person with whom the adulterous affair took place – and many lawyers advise against doing so as it may cause unnecessary delay and additional expense if the co-respondent contests the petition. There is often little reason for a co-respondent to cooperate, particularly as they may be ordered to pay a portion of the court costs if a divorce is granted.
It is very difficult to produce direct evidence to prove an act of adultery. Adultery is a matrimonial offence as well as a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities.
Thus the offence of adultery may be proved by:
1. Circumstantial evidence
2. By evidence as to non-access and birth of a child
3. By evidence of visits to brothels
4. By contracting venereal diseases
5. Confession and admission to parties; and
6. Preponderance of probability
Hence in proving the adulterous act of the spouse many have not suggested to file divorce on the basis of adultery.

The author Mr.Satish Kumar can be contacted at divorceadvocate@aol.in