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Extra-marital affair: a ground of divorce

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

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My wife has an extra-marital affair with her ex-boyfriend. I knew about her extramarital relation when I saw some intimate photographs on her mobile phone. I have collected all those photos as evidence to prove her illegal relation.  She accepted the sexual relation with her paramour when I caught her red-handed. I want a divorce on the ground of extra-marital relations. The video recording and her admission are sufficient for divorce on the ground of adultery? Whether she can demand maintenance on divorce?

Could she claim any right in my property? Where will the case proceed? She is very shrewd and extort money because her paramour is planning to settle in abroad. Her ex-boyfriend is not very financially sound so I’m worry that he can use my wife to extort money from me.

Question from: Jammu & Kashmir

Adultery or extra-marital affair is a ground of divorce under section 13 of the Hindu Marriage Act. When a wife has been living in adultery, her husband can dissolve the marriage due to her infidelity. You should file a civil suit for divorce and make her paramour as a defendant in that civil suit. You cannot get divorce Without making him a party in the civil suit.

Moreover, you have sufficient evidence to prove that your wife has been living in adultery. The video recording and admission of your wife are sufficient and relevant evidence to prove her guilt. She cannot deny this evidence because she has admitted the fact of adultery. 

Your wife has admitted that she is living in adultery. The rule of estoppel will apply in respect of her admission. According to Section 115 of the Indian Evidence Act, she cannot retract from her admitted fact. If she wants to refuse her admitted fact then she has to prove that the aforesaid video recordings and admissions are false. Prima facie the case is in your favour.

Burden of proof

The burden of proof that the evidence is false will shift on your wife. It is not easy for her to deny such conclusive proof. When you successfully prove that these video recordings and admissions are true then the court will presume that your wife is living in adultery. The strict rule of evidence does not apply in civil proceedings. Therefore, no need to prove that evidence is true beyond all reasonable doubts. The preponderance of the evidence is sufficient to prove your case and the evidence you have collected will serve this purpose.

Electronic evidence

The video recording is electronic evidence. Section 65B of the Indian Evidence Act enumerates a procedure for the admissibility of electronic evidence. Electronic evidence could be easily morphed or created falsely by using electronic devices. Therefore you have to prove that the video recording is genuine.

You should produce the primary storage device such as your mobile phone, pen drive or memory card in which you have recorded her video. If you have copied that video in another device then you have to produce a certificate under section 65B along with the video recording.

Claim of maintenance

During the proceedings of the divorce case, your wife cannot get maintenance from you. According to Section 125(4) of The Criminal Procedure Code, your wife is not entitled to get maintenance. When the wife is living in adultery she cannot claim maintenance from her husband. Your wife is the guilty party hence she also cannot get interim maintenance under Section 24 of the Hindu Marriage Act.

Maintenance after the decree of divorce

Section 125 of the code of criminal procedure also entitled a divorced wife to get maintenance from ex-husband. Your wife can get the maintenance after divorce if she is living in destitution. She will get the maintenance:

  • Until her remarriage, or
  • To her whole life, or
  • Becomes able to maintain herself.

The wife has two capacities, one as a married wife and second as a divorced wife. A divorced wife is entitled to get maintenance even though the divorce is granted on the ground of adultery. The restrictions of section 125(4) crpc are not applicable to the divorced wife. Consequently, she is entitled to get maintenance after the divorce.

In Rohtash Singh v. Smt. Ramendri, JT 2000 (2) SC 553; the Supreme Court held that:

A woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.

Whether the wife can claim right in property

The wife has no right in the property of the husband. She has only one right, that is to get maintenance from the husband even after the divorce. According to sub Section 4 of section 125 of the code of criminal procedure, an adulterous wife is not entitled to maintenance during the divorce proceeding. After the divorce, her infidelity does not obstruct her to get maintenance under section 125 crpc.

Place of suing

You can file the civil suit where your wife is living or where the cause of action has arose or where you were lastly resided together. If there is more than one places of suing then you can choose any one of them. So you should see where to file the civil suit under section 13 of the Hindu Marriage Act.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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