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Adultery, a ground of divorce, refers to the act of either spouse who engages in sexual intercourse with a person other than the own partner. This act is condemned throughout the world as it leads to infidelity in the marital relationship. Society tends to look down upon a person who has committed the offence of adultery. Being a societal outcast, the act results in the breakdown of most marriages. As matrimonial ties are based upon trust and truthfulness, the conduct of adultery cause to break off that trust resulting in the emotional breakdown of the opposite party. If the condition deteriorates and it becomes impossible for either the parties to live under the same roof, they opt for divorce on the ground of adultery.


Adultery is an act that does not take place in the public eye rather committed in a private place. This is why, to accuse someone of adultery, one must accumulate true pieces of evidence for the same. The necessary points of evidence of adultery are as follows:

  • Sexual intercourse:

The prime evidence to prove the adulterous life is to establish the fact that the accused party and another party had engaged in voluntary sexual relations without any coerced conduct. This reason forms the basis of the charge of adultery.  

  • Marriage:

Another crucial factor to be satisfied is that either the parties or both the parties to the act should be married and have a living partner. This will prove that they lied to their living spouses about their lives.

  • Opportunity:

The evidence should direct towards the fact that the defendant had a chance to engage in sexual relations coupled with opportunity and desire. An instance where a married woman who is accused of adultery, becomes pregnant at the time of the absence of her husband, proves her guilt. This shows that she had the opportunity to engage as well harboured a desire for the same.

  • Letters:

Sometimes, letters full of desirable connotations can be presented in the court of law as evidence that the accused had tried to engage in adultery. However, it is not strong proof but still admissible at all times. The intention of the respondent can be proved through the presenting of such letters.


Charging someone with the offence of adultery not only causes mental stress to the person but also degrades the position of the person in the eyes of society. This act is unaccepted even in the most modernised societies, so it is important to accuse someone only with strong evidence. There can be instances where the person is falsely accused of having an adulterous life but in reality, he or she is innocent. That is why people should identify the evidentiary requirement for establishing adultery as a ground of divorce. Some of the pieces of evidence that can prove adultery are the photographs of the husband with his paramour, discovering family planning methods such as condoms and private letters of the said paramour.

These things do not defame anyone but strengthen the offence of adultery. But, a mere suspicion that the wife or the husband was absent from home the whole night is not enough to prove the offence of adultery. There should be voluntary and consensual sexual intercourse with another party other than the spouse. If the husband tries to create a situation wherein a wife is left alone with a male person, not his husband, under such circumstances it is not adultery. There is certain evidence that serves the purpose of proving adultery. Another point of evidence can be the time when the husband brings a paramour at home and takes her to his bedroom wherein the children and the wife serve the purpose of witnesses the adultery is presumed to have been carried out.

In the case of Rajee v. Baburao, the wife, the petitioner, wherein the husband filed an application for divorce owing to the adultery of his wife, filed a second appeal. When the witnesses were examined, the trial court held that the story of the respondent was directed towards a ‘cock and bull’ story and the witnesses were doubtful. Later the Madras High Court iterated the fact that proper pieces of evidence are required to obtain a divorce on the ground of adultery. In the end, there were no foundations that proved her adulterous life and the petition was dismissed. However, she was freed from the allegation of adultery, but her character was assassinated every time. These calls for the importance that proofs should be true, proper, and free from any ambiguity.

Through the case of Joseph Shine v Union of India, the law under section 497 of the IPC that made adultery a punishable offence, was struck down. This legalized adultery but only in cases wherein the marriage has already been broken, and the spouses consented to engage in it. Adultery will continue to be the ground of divorce and the importance of its evidence will still be the same. Though the case is a landmark judgement to usher diversified horizons to the lives of the spouses, the ground of divorce cannot be ignored at all. The judgement broadened the horizons of our minds so that people can put their happiness as their priority and not societal thinking.


Now, we have a clear idea about the need to identify the evidentiary requirement to establish adultery as aground of divorce. Accusing someone with baseless allegations result in mud-slinging and character assassination of the accused and degrading the reputation. There has to be proper evidence of adultery to opt for a divorce. Divorce is not an act that can be undertaken at any point in time. There have been reasons behind every step taken by the petitioner. These points justify the title that evidentiary requirements are of great importance for a decree of divorce. The burden of proof of the allegation of adultery lies on the person conferring it on the accused. Just because a person hates the marital life of someone cannot allege him of having illicit life with a paramour. There has to be strong evidence to support it, devoid of any mere statement.

Author(s) Name: Mukulita Datta (S.K. Acharya Institute of Law, Kalyani)