INTRODUCTION
Marriage is often contemplated as a sacrament by Indians filling their emotional and physical voids. It can also be understood as a social and legal approval for a man and a woman to live together and procreate. While it is supposed to be built on trust and loyalty between both partners, adultery being a ground for divorce reveals that not all marriages retain such standards. It is one of the valid grounds for divorce under different personal laws in India. While physical involvement of one partner with someone else has long been recognised as a breach of one’s marital relationship, what if any one of the partners is caught being involved in a non-adulterous infidelity? Non-adulterous infidelity comprises emotional and romantic betrayals by a married individual that do not include sexual relations but can lead to equivalent impairment of emotional bonds. Emotional affairs, online affairs, romantic relationships that don’t involve sexual intercourse or non-penetrative sexual activities by any married person with someone out of that marriage can lead to non-adulterous infidelity.
Despite non-adulterous infidelity becoming a profound reason for bringing a marriage to an end, it has not yet been acknowledged as a valid ground for divorce under different personal laws in India. The fact that extramarital romantic and emotional relationships are considered less dangerous to marriage than extramarital sexual intercourse is unjustified. Today, when most marital relationships are devoid of trust and loyalty, the ignorance of non-adulterous infidelity while terminating a marriage is a serious concern.
CURRENT LEGAL LANDSCAPE IN INDIA
- Adultery
The act of extramarital sexual intercourse has been recognised as a valid ground for divorce under some personal laws in India. Section 13(1)(i) of the Hindu Marriage Act defines adultery as voluntary sexual intercourse with any person other than the spouse. It is a ground for divorce under the act. Divorce among Christians in India is regulated by the Indian Divorce Act which also considers adultery as one of the grounds for divorce. The act of adultery is a ground for divorce and judicial separation under the Parsi Marriage and Divorce Act. Adultery was previously an offence under section 497 of the IPC but the legal landscape in India saw a significant change in 2018 when, in Joseph Shine Case, this section was declared to be unconstitutional by the Supreme Court. While Indian divorce laws vividly mention that a person can seek divorce on the grounds of adultery, they have failed to recognise the difference between adultery and infidelity. They explicitly talk about extramarital sexual intercourse but tend to ignore the non-adulterous infidelity that causes equal damage to a marriage.
- Non-adulterous infidelity
The existing personal laws in India lack when it comes to recognising non-adulterous infidelity as a ground for divorce. They only consider the sexual involvement of a married partner with someone else and not their emotional or romantic involvement. There have been cases where one of the married partners is found to be involved in a romantic affair or online affair outside the marriage. In the case of Kalaivani v. S. Durai of 2022, divorce was granted by the Madras High Court on the grounds of mental cruelty. Here, one of the partners was involved in non-adulterous infidelity with someone else. The courts had given a judgement stating that such conduct of one of the married partners led to mental agony to the other and hence, divorce was granted on the ground of mental cruelty. Thus, there is no inclusion of this kind of infidelity as a specific ground for terminating a marriage but it has been clubbed under the act of cruelty to grant divorce to people who have been cheated on by their respective spouses.
IMPACT OF NON-ADULTEROUS INFIDELITY
Historically speaking, the common law believed that if a wife had sex with someone who was not her husband and gave birth to a child that might be raised by the husband, it would adulterate the husband’s bloodline. It was solely concerned with the biological implications of the act of adultery. This perspective revealed an outdated and more patriarchal view of marriage and its purpose. But today when the definition of marriage has undergone significant changes, it is no longer limited to being a contractual relationship only to produce children. Modern-day marriages are based on deep emotional connections along with sexual exclusivity. If any of the partners is suspected of being emotionally involved with someone outside the marriage, it leads to the destruction of the emotional bond between the married couple and often results in the termination of their relationship. The partner who has been cheated on might end up feeling betrayed both emotionally and romantically.
LAWS IN OTHER COUNTRIES
As cases of non-adulterous infidelity are heavily rising around the world, countries such as the United Kingdom and the United States have reported that virtual infidelity is becoming a major cause of marital disruption. In the United Kingdom, there is an act named the Matrimonial Causes Act 1973 which includes that ‘unreasonable behaviour’ can be a justification for divorce and the evidence of online infidelity may be a part of it. To prove online infidelity, there needs to be sufficient proof in digital form. The courts in the United States generally allow digital evidence to be admitted in divorce proceedings. However, many US States do not recognise emotional affairs without sexual relations under the definition of adultery but it may be cited under the ground of irreconcilable differences or cruelty.
THE NEED FOR REFORM
The foremost reason for appealing to bring a reform is the harm that non-adulterous infidelity causes to the married couple. If no specific ground for non-adulterous infidelity is included in the divorce laws, it would lead the courts to keep relying on the interpretation of cruelty while dealing with such cases. This showcases a grave issue because the final decision of the court on whether such acts constitute cruelty or not solely depends on the discretion of the judges who are dealing with the situation. This would ultimately cause a lot of mental stress to the aggrieved spouse. Thus, the need to bring a reform in the divorce laws in India is felt on various occasions. The current legal framework requires revisions to protect individuals from the emotional and psychological harm that is caused by the commission of such acts.
CONCLUSION
Overall, the various personal laws in India do not recognise non-adulterous infidelity to be the sole ground for divorce. It is often placed under the wide interpretation of mental cruelty while dealing with divorce cases. However, this is a matter of concern as the partners who have been cheated on often have to rely on the judge’s decision on whether their spouse’s affair with someone would amount to the termination of their marriage or not. This raises a big question on the failure of the current legal framework in dealing with divorces in India in cases of non-adulterous infidelity. Thus, the Indian legal system needs to bring amendments to make sure that the issues revolving around modern relationships are addressed.
In the current scenario, where non-adulterous infidelity has not yet been acknowledged as a ground for divorce in India, it becomes intrinsic for the new generation of lawyers to engage in evolving issues relating to matrimonial disputes and the termination of marriages. This can help them gain insight into the legal gaps that are there in the divorce laws of the country. As the existing laws often fail to keep up with the perpetual transformation going on in society, there arises a need for thorough research and amendments to the current divorce laws of India.
Author(s) Name: Anjali Ranjan (Bharati Vidyapeeth (Deemed to be University) New Law College, Pune)
