Role of evidence in adultery while spouses continue to suffer humiliation due to staying marriage partners. Adv. Pratibha Bangera, practicing lawyer at family court throws light on this topic.
Q. What is adultery in legal terms
A. Fidelity is not an ingredient for marriage however if either spouse has sexual intercourse outside the marriage, the cheated spouse can apply for divorce on grounds of adultery. It is not a punishable offence anymore where previously only a paramour of the wife was punishable if found guilty. The wife could not have the same relief of seeking punishment for the mistress of her husband. This was reducing the dignity of the wife to be property of her husband, hence the same was repealed. It was also held unconstitutional as it violates right to privacy.
Q. Are there various categories of adultery in marriage
A. Adultery is when sexual intercourse or penetrated sex is established. Although spouses do make allegations of being emotionally hurt, being betrayed due to online exchange of sexual chats and also paid sex however in legal terms adultery is now only a civil court remedy and a ground for divorce if spouse has sex outside marriage.
Q. What about maintenance to an adulterous person in family court?
A. Maintenance is denied to an adulterous spouse and customary laws and the special marriage act gives the respondent a chance to oppose or refuse to pay maintenance if his or her spouse is found guilty of” living in adultery” with another person and has voluntarily chosen to leave the matrimonial house or refuses to live with the spouse for no sufficient cause. However, a mere allegation is not sufficient to oppose the maintenance application.
Q. What about custody of children when the parent is having adulterous relationship
A. The child’s welfare is considered to be of paramount importance even if it is with a parent facing adultery allegations and while deciding such cases other circumstances are also considered whether the child was deserted or neglected and physical safety and health of the child is also taken in consideration. Also, criminal record of the spouse can weaken the custody option in the interest of child welfare.
Q. Can phone recording or sex chat history or tape recordings be given as evidence in court to establish adultery
A. Lot of people waste their money to engage detectives and also pay for hidden camera devices to get proof of adultery but in court, there is a stage of admissibility of evidence and source of such evidence has to be legally acquired. If such evidence is due to unethical hacking of device or obtained through malicious spyware which is violating the information technology Act, the provider of such evidence will be liable for punishment under such act which also includes phishing of text, video, audio or image.
Q. What about photographs taken in public places or in vehicles or scooter
A. To establish adultery it is necessary to establish the sexual act which has to be established beyond doubt not just mere pictures which may or may not lead to adultery. Also, photographs can be denied or morphed unless it is supported with timely RTI commissioners report verifying date and time of such premises where the photograph was taken along with supporting hotel bookings where such adulterous act would have taken place or reservations made in joint names for a single room. Even then to establish sexual intercourse may be a challenging job. As a rule, the court will not infer adultery from evidence of opportunity alone unless it is accompanied with a high degree of probability. Evidence of adultery has to be clear and definite and allegations have to be proved beyond reasonable doubt.
Q. What about trial and evidence based on statements of witnesses
A. Witnesses examination may be upto discretion of trial court where it may take into consideration and allow such deposition provided it is substantiated with satisfactory proof and if these allegations are not proved or the case fails there can be a counter defamation case filed for falsity of such allegations.
Q. In which type of circumstances can court then establish adultery
A. If spouse is found with stranger in sexual act or juxtaposition supported with medical examination in a municipal hospital upon complaint taken up by police or if there are hotel bills confirmed with RTI commissioner report or admission of spouse through letters exchanged or child born out of the marriage consortium or failure by spouse to defend against such allegations.
Q. Are there any reconciliation that happen after adultery is established between spouses
A. While most spouses overlook single instances of adultery these days, it is also seen that several marriages continue inspite of finding proof of adultery but matters start to fail if the spouse repeatedly continues to cheat in the marriage leading to an eventual breakdown of marriage as such adulterous relationship may take a toll on marriage. While the spouse continues to feel hurt after stumbling upon sometimes intended and sometimes unintended disturbing phone calls or emails or chats.
– Adv. Pratibha Bangera
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