Adultery may be defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. Therefore, the definition of adultery brings out a few ingredients, which are:
a. It is a voluntary act of the parties. A forceful act cannot be termed as adultery
b. Adultery can be indulged into only by a married person. A sexual intercourse by an unmarried person cannot be termed as adultery
c. The sexual intercourse should be with a person other than the adulterer’s spouse
Therefore, all the above 3 ingredients are important for an act to be termed as adultery.
Adultery is a ground for divorce in the Indian Marriage Laws. The act of adultery is not a ground for divorce for the moral turpitude involved in it but for voluntary surrender to another person of the reproductive organs of the guilty person. Hence, adultery is actually an offense against the spouse in a marital relationship and not an offense of moral turpitude.
A question which comes up during discussions with married people, whose spouses have indulged in adultery, is a question of how to prove it during a divorce proceedings. As a divorce proceeding is civil in nature, the proof need not be as strict as in a criminal case and therefore proof beyond reasonable doubt is not required.
Adultery can very rarely, if ever, be proved by the direct evidence of witnesses who saw the parties in flagrante delicto and witnessed the act. In most cases, the evidence must be circumstantial in character and must depend upon the situation spoken to in regard to which the act is alleged, and the probabilities relating to that situation. Therefore, a direct evidence is not required to prove adultery, in fact direct evidence, if produced in the court, could be negative. The reason is that adultery is a secret act and it is highly improbable that there could be a witness to such a secret act. Only proof of preponderance of probabilities is required to prove adultery. In common parlance this means that the proposition is most likely to be true in a given situation. If the probability is more than 50% that the given proposition being true, the test of preponderance of probability is met and the proposition is considered to be true. A single act of sexual inter-course is not adultery.
The Author Advocate K.P.Satish Kumar M.L. is the Madras High Court Advocate and a leading family court advocate in Chennai.
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