Adultery in civil law: Divorce and maintenanceDespite being decriminalised, adultery remains a relevant legal ground for divorce and maintenance cases. Under both the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA), a spouse can file for divorce if the other party has engaged in voluntary sexual intercourse with someone other than their spouse.Although the law does not explicitly refer to “adultery” in divorce provisions, it is implicitly understood. Courts require proof of sexual intercourse to establish adultery as a valid ground for divorce. In a 1982 Delhi High Court case, the court clarified that partial penetration is required to prove adultery, distinguishing the act from lesser forms of sexual gratification.Adultery also has implications in maintenance cases. Under Section 125(4) of the Criminal Procedure Code (CrPC), a wife is not entitled to maintenance if she is living in adultery. However, in a Madhya Pradesh High Court case, despite a husband’s claim that his wife was involved in a “love affair,” the court refused to cancel the maintenance order, emphasising that adultery must involve physical sexual relations.Similarly, the Supreme Court recently ruled that a woman who is separated from her first husband but has not yet divorced him can still claim maintenance under Section 125 of the CrPC, even after his divorce. This landmark judgment establishes that the lack of a formal divorce does not invalidate her claim of separation or imply the existence of a bigamous relationship.
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