In a case, the Indian courts had held that ‘The Court usually infers adultery from the fact that the respondent shared a bed or bedroom for the night with a person of opposite sex other than the petitioner or from the fact that the respondent had been carrying on an association with a person of the opposite sex other than the petitioner and there is evidence of illicit affection or undue familiarity between them coupled with an opportunity for them to have committed adultery.’ Therefore we can understand from the above, to prove adultery, the petitioner has to prove that his/her spouse
a. Voluntarily shared a private moment with a person of the opposite sex such as a bedroom, an apartment etc…
b. Has an illicit affection or undue familiarity with the person of the opposite sex. This implies acts of the spouse which are generally forbidden by law, rules or customs of the society and which tend to generate suspicion in the mind of a person
c. The spouse and the person of opposite sex should have an opportunity to commit adultery. For example, if the accused spouse and the other person are in a room alone for a few moments, the 3rd condition is not satisfied as there is no opportunity for them to commit adultery.
d. All the above 3 conditions viz. voluntarily sharing of a private moment, illicit affection/undue familiarity and opportunity to commit adultery should exist at the same time when the said act of adultery is alleged to be performed. This is required so that the conditions of preponderance of probability is met.
As mentioned above direct evidence of adultery is not available, circumstantial evidence is required to be produced in courts. It is to be noted that the circumstances should be such that it should lead to a necessary conclusion that adultery was committed. This can be proved by preponderance of probability method enumerated above.
Adultery can also be proved by
a. evidence of non-access and birth of children
b. contracting venereal disease
c. confessions and admissions
Hence, if the wife delivers a baby or conceives a child, provided the husband does not have access to the wife during the time she was expected to conceive the foetus, is a proof of adultery by the wife.
Similarly, if either spouse contracts a venereal disease, it can be argued that such a disease is spread due to sexual intercourse, which the spouse may have had with another partner.
Further, any confession and admission by the adulterer is also considered as satisfactory proof of commission of adultery.
Author Advocate K.P.Satish Kumar M.L. is the leading family court lawyer in Chennai
Talk to the Team Daniel & Daniel @ 9884883318