Adultery is a very much misunderstood concept in India. Cheating in a relationship is more commonly understood by laymen, but there is a lot of misinformation. Some of them assume adultery a crime in marriage, others know that being romantically involved with someone outside marriage can be the reason for divorce. However, most of them do not understand what adultery actually means, and what exactly is considered a ground for divorce. That is why “How to prove adultery in Indian Court?” is a common question, yet, people don’t know the answer. Therefore, let us explore the basics of proving adultery in Court. Here is a step-by-step digging the legal grounds on adultery evidence.
Adultery as a Ground of Divorce
A lot of people are not very much clear about what constitutes adultery in India. Some believe that an extramarital affair, wherein a married person is emotionally attached to someone other than their married spouse, is adultery. Though that is equally devastating, the law only recognizes acts of sexual intercourse with anyone outside marriage as adultery.
The Hindu Marriage Act Section 13 (1) (i) lays that if a person has voluntary sexual intercourse other than his or her spouse, it can be a ground of divorce for another. Section 27 (1) (a) of the Special Marriage Act also states that a spouse may seek divorce if the other spouse has had voluntary sexual intercourse with someone else. Section 10 (1) (i) extends the right to contest divorce if another spouse has committed adultery. Section 32 (d) of Parsi Marriage and Divorce Act makes one spouse committing adultery or fornication or bigamy or rape or an unnatural offence a ground for divorce for the other spouse. In Muslim law, adultery is considered a major sin, though not expressly considered a ground for divorce. However, a wife may seek divorce if the husband is unable to maintain her, which could be an outcome of adultery.
Thus, it can be inculcated that having voluntary sexual intercourse with anyone other than the married spouse is a ground for divorce. However, it is a discreet action, and a battle for the other spouse to prove in the Court of Law.
What proofs can we give in adultery?
In India, sexual intercourse is not casually talked about in public. That is a rare phenomenon, even for married couples, let alone adulterers. Hence, if a married man or woman voluntarily has sexual intercourse with someone else, proving it in the Court becomes challenging.
It needs to be understood firsthand that a husband frequently talking to his office colleague may affect a marriage, but does not count as adultery in the Court. To prove adultery, explicit evidence of the married spouse having sexual intercourse with someone outside their marriage needs to be proved. Statements of instances can be used as evidence. The adulterer is also included as a party in adultery cases, along with the married spouse who committed adultery, and their statements are used in evidence.
Apart from that, photographs of the act or transit, call recordings, texts or chats, hotel details, video, etc. may be used as evidence. Knowing how to prove adultery in Indian Court is crucial when you have strong digital evidence. Admissibility of electronic evidence is subject to a certificate under Bharatiya Sakshya Adhiniyam, authenticating such evidence (65B certificate under Evidence Act). Any evidence produced in the Court of Law should signify the act, or lead circumstantial evidence to prove that the married spouse committed adultery.
Is WhatsApp chat enough proof in India for adultery?
It depends upon what is sought to be proved through those chats. First things first – the chats should be obtained in the most authentic way, most preferably extracted and saved in the original encrypted file to prove that the same has not been doctored or tampered.
Also, a married spouse asking someone to meet at a place does not prove adultery. A married spouse telling someone that they look beautiful is not adultery. Even a sexually suggestive text message does not constitute adultery. The chats should be clearly depicting that the conversation is all about having sexual intercourse.
Can screenshots of WhatsApp messages be used in court?
Someone recently asked how to prove adultery in Indian Court when I have chat screenshots which prove that my husband met his lover a few times and they had sexual relations? It may be noted that WhatsApp chat screenshots may be explicit enough to reflect the acts of adultery. However, WhatsApp messages alone are not enough. As mentioned above, digital or electronic evidence should be accompanied with a proper certificate to authenticate its contents. Thus, a Section 63 certificate under BSA is mandatory for acceptance or consideration of WhatsApp chat screenshots in the Court.
Again, the chats should suggest acts of adultery, and be relevant to the case. If the message is not conveyed to the Judge, proving adultery in Indian Court becomes all the more challenging.
Can cell phone records prove adultery in India?
It depends upon the relevancy and nature of those call records. The calls heard should depict conversations where the person on call is incriminating to suggest that the person committed adultery. It is not necessary that the married spouse should be talking to his/her adulterer partner. It could be a confession to the other spouse, or a friend. The significance of proofs in adultery varies on a case to case basis.
Coming to its technicality, the call record should be clear enough for anyone to understand what is being said by either party. Challenge against voice recognition is another barrier for acceptance of call records, since parties have rights against self incrimination. In any case, a Section 63 BSA certificate is a must, or the most relevant piece of evidence may be denied, and there will be no answer to how to prove adultery in Indian Court.
What is the best evidence for adultery?
There is no best or worst evidence of adultery. And to be honest, every piece of evidence is devastating when a spouse has to ask someone how to prove adultery in Indian Court. They know they are not at wrong, but they feel guilty when asked to collect evidence of adultery.
Nonetheless, anything that proves that the married spouse has had voluntary sexual intercourse with someone outside marriage, that evidence is sufficient and best in itself.
How to Prove Adultery in Indian Court? – Inference
Based on the detailed discussion above, it can be understood that if you wish to know how to prove adultery in Indian Court, the first thing to understand is what constitutes adultery. Now, if you are still confirming that your spouse committed adultery, tracing evidence is important. Anything and everything which proves that the person has had sexual intercourse with someone else – without any force or misunderstanding, is relevant evidence. In any case, it is going to be a bitter battle, but marriage is all about trust and togetherness. If a spouse has gone to the extent of having sexual intercourse with someone else, the last strands of marriage may be separated without any guilt.
