Report No. 59
7.6. Section 13(1)(i)-"living in adultery".-
Under section 13(1)(i) of the Hindu Marriage Act, "living in adultery", is a ground for divorce. This should be contrasted with "adultery", which is the ground of divorce usually mentioned in legislation in other countries and also in the Special Marriage Act. In India, Parliament in 1955 took the view that a single act of infidelity to the marriage bond should not be a sufficient ground for relief by way of a decree of divorce for a Hindu marriage, but should only be a ground for judicial separation. It is, therefore, at present necessary that one of the parties to the marriage should be leading a continuous course of adulterous life1. The course of adulterous "living" is not a matter of the past, but must be continuing at the time of presentation of the petition2.
1. Subramaniyam v. Pennkshiammal, AIR 1958 Mys 41.
2. Rajani v. Prabitakar, AIR 1958 Born 254.
7.7. In practice, however, it is difficult to establish adulterous "living". Apart from this, on principle, a single act of adultery should, in our view, be enough. In Indian conditions adultery is, in general, very likely to impair seriously the mutual confidence of the parties, thereby rendering conjugal life difficult if not impossible.
7.8. Both legally and morally, adultery has been regarded as the most serious matrimonial offence1 in other countries also.
1. See A. v. A., (1962) 2 All ER 573 (577): (1962) 3 WLR 212 (217) (Ormrod J.).
7.9. to 7.11. It may, incidentally, be stated that the words "living in adultery" in section 13(1)(i), Hindu Marriage Act, seem to have been taken from section 488(4) of the Code of Criminal Procedure, 1898, under which, a wife "living in adultery" could be refused maintenance1. In that section of the Code those words have a relevance, because, if the wife is living in adultery, she would be practically receiving some kind of financial support from her partner in adultery, and there is no economic hardship or possibility of vagrancy if she is refused the aid of the prompt remedy under the Code, which is primarily aimed at preventing vagrancy. But it is, in our view, inappropriate to adopt that test when we are dealing with the grounds of divorce.
1. See now, the Code of 1974, section 125(5).
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