Adultery and Infidelity

**Hrishav Dasgupta and Vaishnav M

Introduction

In India, if a married couple is seeking a divorce, there are broadly two pathways available – divorce based on any of the grounds laid out in the personal laws or divorce based on mutual consent. In the former pathway, which is based on ‘fault-theory’, the partner seeking divorce is required to convince the court by identifying the other partner with one or the other ‘faults’ mentioned in the personal laws. One among these ‘faults’ is adultery, which is defined as the ‘voluntary intercourse between a married person and someone other than the lawful spouse’.

Adultery, which accounts for a fairly high share of divorces globally and in India, is not only considered as violence against the sexual exclusivity of marriage but emotional exclusivity as well. However, the present legal framework does not allow an aggrieved spouse to seek divorce against a partner involved in forms of infidelity other than  adultery. For uniformity, we shall refer to such forms of infidelity as ‘non-adulterous infidelity’. Such ‘non-adulterous infidelity’ essentially refers to relationships or acts that are short of sexual intercourse but have a romantic or sexual angle.  These include engaging in an affair online or over the  phone, a romantic relationship stopping short of actual sexual intercourse, and forms of non-penetrative sexual activity not amounting to sexual intercourse. This article seeks to convince the policy-makers as to why the divorce laws might require suitable amendments to include such forms of non-adulterous infidelity as a  ground for divorce. 

The fundamental premise behind such an argument is simple – the distinction that the law makes between an unfaithful act involving sexual intercourse and an act involving non-adulterous infidelity appears to be futile from the perspective of the partners in a marriage. The latter form of infidelity is not only as harmful as the former to the institution of marriage, but is also an equally strong signal of a failing marital relationship. Through this lens, there is no basis for the exclusion of non-adulterous infidelity other than anachronistic patriarchal notions. 

In fact, activities like online affairs are no longer mere dystopian predictions. Instead, it has become a harsh reality, a rampant pathogen infecting a large number of marriages across the world. Hence, solving this conundrum in our laws is not only aimed at weeding out the anachronism, but is equally a step towards acknowledging the modern challenges to the institution of marriage. 

The Definitional Conundrum: a quick peek on ‘Adultery’ and ‘Infidelity’ 

‘Adultery’, i.e., consensual extramarital sexual intercourse, is a ground for divorce under the Hindu Marriage Act, Indian Divorce Act, Parsi Marriage Act and Special Marriage Act. Adultery is also a ground for divorce under Muslim Personal Law in India, but it is available only to husbands. Before 2018, adultery was an offence under Section 497 of the Indian Penal Code, 1860; it was struck down as unconstitutional in the Joseph Shine case. While that being said, adultery is different from infidelity. The Merriam-Webster Dictionary defines infidelity as, ‘the act or fact of having a romantic or sexual relationship with someone other than one’s husband, wife, or partner’. The difference between adultery and infidelity is no rocket science – while adultery refers to extramarital sexual intercourse, infidelity involves all kinds of extramarital romantic or sexual relationships. In other words, adultery is a subset of infidelity. 

Interestingly, Indian divorce laws consider only adultery as worthy of being a ground for divorce, excluding other forms of non-adulterous infidelity. The practical implication of this arbitrary usage is that unless the unfaithful partner engages in any form of penetrative sex with any other person, and unless circumstantial evidence proving the occurrence of such an act is produced,  the other partner cannot seek divorce under the grounds of adultery. More lucidly, it means that other forms of non-adulterous infidelity, are not ipso facto valid reasons for divorce in India; it is intriguing why one act is considered less (or not) dangerous to marriage than the other. The subsequent section deals with this question from various angles.

The Roots and the Palpable Implications of the Conundrum

The concept of adultery as merely sexual appears to be a relic of a patriarchal past. The word itself seems to derive from “adulterate”. If a married woman had sexual intercourse with a man other than her husband, she could become pregnant and “adulterate” her husband’s bloodline. Historically, common law did not provide relief to the wives of unfaithful husbands, as “such infidelity does not adulterate her issue, nor his own.”.  This could also explain why adultery has been interpreted as penetrative sex, as only vaginal sex could result in pregnancy. This position depicts a male-centric mindset, which reduces women to a mere device for childbirth. Although, at present, most personal laws permit a wife to divorce her husband on the grounds of his adultery, the fact that only extramarital penetrative sex is a ground for divorce reveals a problematic past. Equally important is the continued use of the word “adultery” to describe such conduct.

The concept of marriage has undergone a tremendous transformation. Marriage is not merely a legally sanctioned sexual union between two individuals. It involves a deep emotional bond. Professor Brenda Cossman highlights that the “violation of the promise of emotional and sexual exclusivity” that results from the physical infidelity is the true harm to marriage, not the infidelity itself. It is, thus, the broken promise of exclusivity, be it sexual or emotional, that causes actual harm. It can also be inferred from Professor Cossman’s statement that this harm caused by infidelity is mainly emotional. The aim of allowing divorces on the ground of infidelity should be to protect the emotional sanctity of the relationship, rather than mere sexual exclusivity. Ergo, it seems illogical to not consider non-adulterous infidelity like emotional infidelity as a ground for divorce, merely due to the absence of penetrative sex despite it being as emotionally damaging to the marriage as extramarital sexual intercourse.

An apt example here is the study conducted by the American Association for Marriage and Family Therapy. Similar to traditional affairs, those that take place over the internet inevitably involve secrecy that has the potential to destroy the trust that’s necessary to hold a relationship together. Today, virtual infidelity, has been associated with spiralling marital relationships across the globe. The empirical studies on the prevalence of virtual infidelity facilitated by online forums indicate that this is a rampant issue challenging the emotional exclusivity of marriage, as much harmful as a physical relationship.

One can also challenge the narrow ground of adultery from a teleological angle – that is, by viewing adultery as an indicator of a failing marriage. In other words, adultery not only results in harm to the marital relationship, but is also indicative of a poor marital bond; as observed in the Joseph Shine decision (see ¶20, per J. Nariman), adultery is not just the cause, but is also an effect of a failing marriage. However, the fact is that the case of non-adulterous infidelity is not very different in this regard; non-adulterous infidelity is not only as disruptive to a marriage as adultery, but also as indicative as adultery of a poor marital relationship. Hence, if the purpose of the legal provision recognising adultery as a ground for divorce is to provide relief to the aggrieved spouse from a strained relationship, then there is no reason why an artificial distinction is to be placed between adultery and non-adulterous infidelity.

The Insufficiency in the Broad Interpretation of Cruelty

As discussed before, the divorce laws exclude non-adulterous infidelity. However, there have been instances in the past where even extramarital affairs which fell beyond the ambit of ‘adultery’ were treated as a ground for divorce by the courts. In such cases, one can see the courts relating infidelity with cruelty (which is a ground for divorce) by establishing a causal relationship between the infidelity of one spouse  and the mental agony of the other. 

The term cruelty, mentioned as a ground for divorce in personal laws, is undefined. Further, courts have also refrained from drawing the contours of this term – what constitutes cruelty varies according to the status of the parties and their social condition, among other factors. This has led to an expansive approach towards cruelty. This expansiveness has allowed the courts to consider cases of non-adulterous infidelity i, as cruelty on the other spouse, and thus, grant divorce. Hence, an expansive treatment of cruelty might appear to solve the issue that this piece has posited.

However, due to the fluidity of the concept of cruelty, the court exercises immense discretion in deciding cases where cruelty is raised as a ground for divorce. The unpredictability arising from the use of discretion is evident from the inconsistency in the decisions of the courts, especially in cases of infidelity as cruelty. For example, In 2015, the Kerala High Court granted a divorce to a man whose wife had been maintaining an illicit relationship over the phone. Initially, the trial court did not give the claim of cruelty due to the illicit relationship due weight. Due to the difficulty in substantially proving the element of agony caused, there is a high possibility of such acts being categorised as mere misconduct. Further, as decided by the Supreme Court, certain acts categorised as misconduct may not always amount to cruelty.

In short, relying on the expansive interpretation of cruelty to address the modern-day challenges to the institution of marriage, like non-adulterous infidelity, is not a predictable and consistent recourse for the aggrieved spouses; whether the court considers it as cruelty or not is largely based on how the judges perceive the situation. This could in turn lead to a greater number of appeals and an increased burden on the already strained higher judicial machinery.

The Way Forward

Based on the above deliberation, we posit that ‘adultery’ shall be replaced by ‘marital infidelity’ as a ground for divorce. However, while engendering such a change, the policy-makers need to properly define the contours of marital infidelity, as what comprises infidelity is subjective – it may go beyond what the authors have classified as non-adulterous infidelity.  It is necessary to ensure a balance between a restricted view and an overly broad view of marital infidelity. Here, we advance the ‘third-party involvement test’ as a potential solution. This test would require the courts to consider all forms of infidelity that have the voluntary involvement of a third party as marital infidelity. 

The apposite path for implementing the change would be to define specific acts such as romantic relationships not involving sexual intercourse, romantic relationships maintained over the phone or using computer networks, and non-penetrative forms of sex, all of which constitute a harm to the institution of marriage, but do not constitute ‘adultery’. There shall also be a provision allowing other acts not within this definition to be considered marital infidelity if they pass the above-mentioned test – i.e., the test of ‘third party involvement’.  This would create a balance between a restricted definition of marital infidelity and a loose, general definition open to judicial discretion. However, while adjudicating such cases, the courts shall act cautiously and ensure that trivial acts are not considered as a ground for divorce.

Conclusion

Indian divorce laws need to adopt a more holistic view of infidelity as a ground for divorce. The exclusion of non-adulterous infidelity as a ground for divorce is anachronistic and parochial. Trying to fit other forms of infidelity into the realm of cruelty can also be problematic. Hence, ‘adultery’ should be replaced with ‘marital infidelity’ as a ground for divorce. Ultimately, this shall be seen as a step towards diluting the rigid fault-based framework that largely governs the current Indian divorce laws. However, the policy-makers and the judiciary shall make utmost efforts to ensure that the contours of marital infidelity are defined carefully and interpreted contextually.

**Hrishav Dasgupta is a law student at the National University of Advanced Legal Studies, Kochi. Law and History are his two passions. Vaishnav M is a law student at the National University of Advanced Legal Studies, Kochi. He is trying to find a balance between public law,  policy-analysis and the novellas of RK Narayan.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.