The offence of Adultery is defined under Section 497 of IPC.
The section reads: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
In case of adultery direct proof is difficult to get and one has to rely for proof thereof on circumstantial evidence and the same may be sufficiently proved from which adultery maybe inferred. The burden of proving adultery in a matrimonial case is on the person who makes the allegation. The standard of proof in \”proceedings under the Act being initially of a civil nature are by preponderance of, probabilities and not by proving it beyond reasonable doubt There are no statutory grounds present for proving the claim of adultery in the court though some presumptive grounds are acceptable. These are:
- Circumstantial evidence – In case of absence of direct evidence, circumstantial evidence can be submitted before the court. “It is unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. So, circumstantial evidence is all that can be normally forthcoming regarding adultery. The circumstantial evidence thus produced must however be convincing to the court which should be left in no reasonable doubt regarding the fact of adultery”. However the inference drawn through such evidence to prove adultery may or may not prove the guilt beyond reasonable doubt.
- Contraction of venereal disease – If it is proven that the respondent contracted a sexually transmitted disease from someone other than the spouse.
- Visit to houses of ill-repute – Spouse visiting brothels and contacting prostitutes is also considered evidence.
- Admissions made by the accused in previous proceedings – Such admissions, oral or written form part of evidence.
- Confessions and admissions of the parties – The confessions and the admissions made by the accused to anyone either orally or in writing must be direct or clear. Mere suspicion or inference is not sufficient to be admitted as evidence.
- Birth of an illegitimate child – Child conceived through sexual intercourse involved in the act of adultery is strong evidence. Reports of paternity test of a child are also admissible
- Communication records – Text messages, conversations over social media platforms or email exchanges in possession can be presented as evidence.
Since it is very hard to obtain direct evidence in a case pertaining to a cheating on a spouse, circumstantial evidence is sufficient. However, such evidence should be such that if regarded together, leads to an irresistible conclusion of the commission of adultery. Intention to commit adultery is an essential element.