An extra marital affair is the kind of relationship which keeps outside of marriage. That relationship also includes illicit relationships or romantic or sexual relationships. passionate attachment or romantic friendship occurs in such kind of relationship. Extramarital relationship takes place where one of the spouses fail to please each other. It requires degrees of skill to hide the extramarital relationship. And hence this kind of behaviour called lying. Therefore, Extramarital affair is part of adultery.
In simple words, adultery means if a man had sexual intercourse with the wife of another man without his consent. Then it was the offence of Adultery and which was punishable only up to September 2018.
Supreme Court on Adultery
People having extra marital relationships were prosecuted for adultery. But on 27/9/2018 the supreme court of India passed a landmark judgment. And scrapped 150 years old law of adultery. Five Judge supreme court bench led by Chief Justice of India Dipak Mishra observed that adultery is not a crime. It can ground of civil offence and a ground for divorce. According to the supreme court of India, adultery law is against the right to equality and life. Therefore after the supreme court Judgement Adultery is not a crime in India.
A businessman named Joseph Shine filed Public Interest Litigation and challenged the law of adultery i.e u.s 497 of the Indian Penal Code. He argued that the law is discriminatory. He also contended that the law is bias. As per section 497 of the Indian Penal Code, the husband can prosecute the wife’s lover. But the wife can not prosecute the woman with her husband committed adultery. In addition to that women can not prosecute against the husband who has committed adultery.
How to deal with extra marital affair of a spouse
Therefore after scrapping adultery, police are not registering FIRs of adultery against faulted partners. And people are facing a tough time dealing with the extramarital affair of one of the partners. So, the other spouse can not do anything against the other partner.
So, in that case, there is an alternate that to register the offence of cruelty under section 498(a) of the Indian Penal Code. Because cruelty can be physical, mental and economic. So extramarital affair is a kind of mental cruelty. Extramarital affairs or relationships and cruelty are not defined in the law books of India.
Extra marital affair — ground for divorce
The Hon’ble Supreme Court has scrapped the law of Adultery, even though adultery/ extramarital affairs remains a valid ground for divorce. And to get succeed in the divorce petition, the parties have to prove adultery of the other partner. And to prove adultery in the court of law, parties are required to produce necessary evidence before the court.
But it is difficult to prove adultery in court. And parties shall rely on circumstantial evidence to prove the adultery. Even parties may engage private detectives to collect the evidence of extramarital affair of partner. And also engage the lawyer to take proper guidance to put the case before the court.
Under this act standard of proof is the preponderance of probabilities. As it is civil nature. And hence it is not necessary to prove adultery beyond reasonable doubts. Because it is difficult to get direct proof like eyewitnesses. So indirect proof or circumstances evidence is an option.
Examples of circumstantial evidence
- hotel booking records,
- travel tickets records,
- credit card receipts.
- Nowadays Whatsapp messages,
- emails exchanged between them,
- text messages can use as evidence of circumstantial evidence.
Women committed extra marital affairs — No offence
There is no adultery if a woman committed sexual intercourse with married or unmarried men. Even women are not responsible for abatement for the act.
Therefore in a nutshell extramarital affair is no more offence but it can use ground for divorce.