Dear Sir,
My answers are as follows:
1. What grounds can the divorce be filed under?
Ans: Lawyer can make out and suggest 1001 grounds for divorce if you sit with him and discuss. But cannot be spelled out online.
2. If she talks this out, would mutual consent be the best way forward?
Ans: Mutual divorce is one of the recognized method otherwise she may file series of cases.
3. How long does it take since they both don't really share the bond of a husband and wife for the past 3 years odd?
Ans: Deemed marriage is existing in the said relationship of live-in.
4. Would the 1 year, then 6 months clause/ waiting period still apply?
Ans: In mutual divorce it is not applicable.
5. If divorce petitions are prepared and both parties sign, will they be forced to stay together till divorce is finally approved/ passed by the honourable court of law?
Ans: It is not necessary.
6. Who gets the child custody (2.5 year old kid)? Mother earns and supports the finances now.
Ans: Normally till child attains the age of 5 years custody will be given to mother.
7. Curious, if she walks out of the husbands house (since things are bad), is there any law that blames her? Family reputations are at stake, so wish to learn the pros and cons legally. Given she is an adult, is there any cause of concern here? Can she be stopped from doing so?
Ans: You can file case of defamation and also permanent injunction against her restraining her from doing acts which damage reputation of the so called husband.
8. If the woman files a divorce plea and sends a legal notice to her husband- can he refuse to accept it? What would be the best way to make him accept/ acknowledge that? I am sure there are laws that do not encourage someone to keep refusing a divorce plea?
Ans: You have to accept and contest otherwise it will decreed ex-parte.
9. She wishes to move on in life, the husband doesn't wish to let go of her since he has been living on her income all these years (least 5+)- Question is, during separation, if she sends a legal notice for divorce, can she be with another man she wishes to be with, without any legal implications? Can separation, the divorce petition etc be enough grounds for no legal punishment?
Ans: During the separation till divorce decree is obtained she cannot reside with any other person.
10. Read some comments on Adultery, IPC 497: In January 2018, the Supreme Court has a petition in consideration that since women are equal to men, if at all, Adultery is slammed by the husband in this case on the woman and her new companion, would they both be punished by law?
Ans: Adultery can be suitable and filed only against married/unmarried person who is residing with a married woman. However law does not punish a married woman living in adultery.
11. The new male companion of the woman, what all does he need to be careful of? If an adultery case is filed on him, won't the separation and divorce petition from the woman stand in his favour? Would he still be punished? They wish to get married and have a family/ future. The women isn't keen on continuing the older marriage, hope that no law forces her to continue in the older marriage and not move on in life after years of torture/ cruelty and non-acceptance on a family.
Ans: A criminal case can be booked against such person.
12. Worst Case- If the women is pregnant before the divorce is finalized, what would be the legal implications?
Ans: Whether she is pregnant or not the other person will be booked for the offence and after the birth of the child the test of paternity will be conducted.
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COURT VIEW section 497
The Hon’ble Supreme Court has opined this as a favorable discrimination towards women, as the law doesn’t envisage punishment for any of the spouses involved but additionally, not even for a woman outsider. Only an outsider man to the marriage is to be punished under Indian adultery law. It is for this favorable discrimination, the section has defeated the challenges questioning its constitutional validity (valid Article 15(3) of the Indian Constitution) in the apex court. The statute with provision are stated below.
The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954
DIVORCE
The Hindu Marriage Act (HMA) under Section 13(1)(i) and the Special Marriage Act (SMA) under section 27(1)(a) have mentioned in a very precise manner, that any marriage may be dissolved by a decree of divorce on filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
In 2011, while hearing a matrimonial dispute, the Supreme Court criticised Section 497 of the Indian Penal Code. The Section, which criminalises adultery, defines it as consensual sex between a man and a married woman. The bench of Justices Aftab Alam and RM Lodha criticised the law on the grounds that it reduces married women to property of their husband.
The court was hearing the case of Kalyani, who had appealed against an Andhra Pradesh High court judgment. The court had dismissed her petition against a case under Section 497, by another woman Sailaja who had alleged that her husband was having an affair with her.
In 2016, not much has changed. Amit (not his real name), 40, is in the midst of a messy divorce after his wife’s alleged infidelity.
“Why will I take action against her lover when it is my partner who is at fault here? This has been going on for over a year, we have split up and it is public knowledge that she is with him. Yet I’m the one bleeding dry.”
Section 497 of IPC states that, ”Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery…. In such case, the wife shall not be punishable as an abettor."
The section provides that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charges of adultery and she cannot be proceeded against for that offence.
“Only the paramour of a woman can be booked under the law with a premise that the man lured her into that relationship,” says Deepika Bhardwaj, noted men’s rights activist and filmmaker.
“Adultery is a moral wrong, not a criminal offence and the punishment should be the same for all,” she adds.
Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law criminalises only one form of adultery. It is illegal only if a man has sexual intercourse with a woman who is married without the consent of the woman’s husband.
However, it is not easy to prove connivance or consent.
For example, in the case of Bharatlal vs Top Singh, a trial court had sentenced Top Singh to RI for 1 year and fined for Rs. 700 for the crime of having an extramarital sexual relationship with Bharatlal’s wife. Top Singh had appealed to a sessions court and argued that there was a delay in the process filing a complaint by Bharatlal and that he had proved that Bharatlal had connived to the extramarital relationship. The court subsequently acquitted him of all charges. Yet, later the High court of Madhya Pradesh again reversed the decision stating that connivance was not proven.
Ironically, it was the British that introduced the adultery law in the IPC, but it remains unchanged in India even though the UK has long decriminalised adultery. Now, it remains a ground for divorce with the legal definition of adultery being “physical contact with an alien and unlawful organ.”
However in India, adultery is viewed in a way that a man’s lineage would be tempered with and the other male would be adulterating his blood line by having intercourse with his wife. Hence, the intercourse with the consent of the husband, is not criminalised as he is aware of the lineage.
But the law seems less concerned with protecting marriage than with controlling women’s sexuality The code does not provide for prosecution of that married woman, a single woman who engages in sex with a married man, or a married man who sleeps with a single woman. So, while the law may appear to favour women, it is easily disregarded that it is this very law that does not permit a woman to bring a case against them or the other person.The larger question, however, might interrogate the appropriate boundaries of the State’s reach. “What a person does in his bedroom, with another consenting adult, should never be a criminal offence,” says Alok Prasanna, senior resident fellow, Vidhi Centre for legal policy.
Concurring, Bhardwaj says adultery should come under the civil laws framework where the aggrieved person can claim damages or compensation, but one shouldn’t be jailed for it since it’s consensual.
“If at all it must be termed a criminal offence because of the harm it causes to the institution of marriage, it should be punishable for all-husband or wife and their respective lovers whether man or woman,” says Bhardwaj.
According to Bhardwaj, while the law doesn’t allow a woman to prosecute her husband if he is found cheating, but there are innumerable cases documented where a woman, caught cheating, then files cases under Section 498 A (the Dowry law), the Domestic Violence Act and other provisions for maintenance and alimony on finding that her husband is in an extra marital affair.
“There was recently a case where a woman filed a 498A case on her own cousin, alleging her husband was having an affair with her sister. It’s a different thing that the court ruled that her own sister can’t be made an accused, because she isn’t the husband’s relative, but because he was caught cheating, she slapped this case on him.”
Sanjay Sehgal’s (name changed) wife walked out on him and his 8 year old son in 2008. “I accepted it, till she attempted to play the woman card,” he says. “She wanted a house, a car and then threatened to slap a domestic violence case and that’s when I went to court.”
Sehgal filed a criminal case against his wife’s lover, Dilip Mehta (name changed) relying on videos of the couple in a car as proof. Mehta then moved the high court to question the constitutional validity of Section 497, saying in a changing society where “live-in relationships are being legally recognised,” adultery as a criminal offence is no longer warranted.
The bench of Justice BH Marlapalle and Justice U D Salvi came down heavily on Mehta for these comments and said, “If somebody wants free sex, then first release themselves from the institution of marriage. If such acts are allowed, then there would be no civil society," the judges had said
While the judges observed that adultery was an "offence against the institution of marriage", they also had added that the section needs to be amended to bring women under the purview.
“It’s been 11 years,” says Sehgal who eventually settled out of court and got custody of his now 16 year old son. “Because the law is so skewed, I let the guy (wife’s paramour) go, why blame him? It’s a law of double standards.”
Adultery Divorce
Adultery Indian Penal Code
The word `adultery’ has been derived from the Latin term `adulterium’ and is defined as consensual sexual relationship between a married woman and an individual other than his/her spouse. Almost all religions throughout the world condemn it and treat it as an unforgivable offense. However, this may not be reflected in the legal jurisdictions of the countries but adultery is recognized as a solid ground for divorce in all penal laws.
The Indian penal code also recognizes adultery as a crime and a punishable offence. This law comes under the criminal law of India and has been placed under chapter XX that deals with crimes related to marriage. The laws as stated in the Indian penal code are:-
Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”
Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
These laws were drafted in 1860 when India was under British rule and the condition of Indian woman was pathetic. During those periods, a man could’ve several wives and women were socially and economically dependent on men. Women were treated as an object and considered the property of men. Thus, while drafting the laws it was presumed that women are hapless victims, not capable of committing such an offence, instead, it must be a man who will entice her and involve her in an adulterous relationship. But these laws definitely treat a man and a woman unequally in the institution of marriage. According to these laws:-
1. Man is always a seducer and the married woman just an innocent and a submissive victim.
2. Wife is no more than a chattel to her husband and a third person had committed the crime of intruding upon his marital possession by establishing a physical relationship with his wife.
3. Only the husband of the treacherous woman (or a person who had care of the married woman) is a distressed party and he is liable to file a complaint against the third party.
4. There is no provision in the law for a woman to file a complaint against her adulterous husband. If a married man commits adultery with an unmarried woman or a widow or with a married woman with the consent of her husband, his wife is not regarded as an aggrieved party and she is not permitted to make any official grievance against her husband.
Considering the changes our society has witnessed in recent times, the Indian penal code must revise these laws and upgrade them keeping in mind the equality of men and women and enabling women to have more freedom and liberty in making their choices.
