Introduction
In India, the process of seeking divorce can be initiated in two primary ways: either through fault-based grounds outlined in personal laws or by mutual consent. The former is based on the ‘fault theory,’ where one partner seeks to prove that the other has violated the terms of the marital contract. One of the recognized grounds for divorce in this context is adultery, defined under various personal laws as “voluntary sexual intercourse between a married individual and someone other than their spouse.”
While adultery has been a significant ground for divorce both globally and in India, it only covers the sexual aspect of infidelity. However, infidelity is not restricted to sexual intercourse; it also includes emotional and romantic betrayals that do not necessarily involve sexual contact but can be equally damaging to the emotional bond of marriage. In this context, we will refer to this form of infidelity as “non-adulterous infidelity.” Non-adulterous infidelity includes acts such as emotional affairs, romantic relationships without sexual intercourse, online affairs, or non-penetrative sexual activities. This article argues that non-adulterous infidelity should be explicitly included as a ground for divorce in India, as it causes significant harm to the emotional and psychological well-being of the aggrieved spouse and threatens the institution of marriage.
The Need for Reform
They key argument for reform lies in the emotional and psychological harm that non-adulterous infidelity causes to the partners involved. The law’s distinction between adultery, which requires sexual intercourse, and other forms of infidelity, seems outdated and ineffective in addressing the realities of modern relationships. This distinction fails to recognize that a romantic or emotional betrayal, whether physical or not, can be just as damaging to a marriage as an extramarital affair. This article aims to convince policymakers to amend divorce laws to include non-adulterous forms of infidelity, as this would better align with the modern understanding of marital fidelity.
The fundamental premise of the argument is simple: emotional betrayal and non-physical infidelity cause as much harm to the marital bond as physical adultery. This distinction between adultery and other forms of infidelity is deeply rooted in outdated patriarchal notions that need to be revisited to address contemporary challenges. The rapid rise of digital relationships and emotional infidelity, often facilitated by the internet, is a pressing issue that marriage laws must recognize. Therefore, revising the current legal framework is essential to protecting the emotional and psychological well-being of individuals and preserving the integrity of marriage.
Understanding Adultery & Infidelity: A conceptual Distinction
Indian divorce laws are primarily governed by personal laws, which differ based on the religion of the individuals involved. Under the Hindu Marriage Act, 1955; the Indian Divorce Act, 1869 (for Christians); the Parsi Marriage and Divorce Act, 1936; and the Special Marriage Act, 1954, adultery is a recognized ground for divorce. According to these laws, adultery refers to the act of voluntary sexual intercourse between a married person and someone other than their spouse.
Adultery, as a ground for divorce, has a specific, narrow definition that only includes penetrative sexual intercourse outside the marriage. The definition of adultery has evolved over time, especially with the landmark Supreme Court decision in Joseph Shine v. Union of India (2018), where Section 497 of the Indian Penal Code, which criminalized adultery, was struck down as unconstitutional. However, the decision did not impact the grounds for divorce under personal laws, and adultery remains a specific ground for divorce.
On the other hand, infidelity, as understood in modern terms, involves not just physical acts but also emotional betrayals, online relationships, and romantic engagements without sexual intercourse. Infidelity, therefore, is a broader concept that includes adultery but also covers a range of behaviors that can cause harm to the emotional and psychological fabric of the marriage. It is the emotional and psychological breach of trust that often causes more harm than the physical act of adultery itself.
Impact on the Current Legal Framework
The concept of adultery as purely sexual has its roots in patriarchal history. Historically, the term “adultery” was linked to the idea of adulterating a man’s bloodline, particularly when women were the primary focus of such concerns. In this male-centric view, only sexual intercourse could “adulterate” a man’s lineage, reinforcing the notion that sexual infidelity was the primary threat to the institution of marriage. This perspective reflects an outdated view of marriage and its purpose, reducing it to a contractual relationship centered on reproduction and sexual exclusivity.
However, marriage today is understood as a deeper emotional bond, and infidelity is no longer confined to sexual acts alone. As Professor Brenda Cossman argues, ‘the true harm in a marriage arises not just from physical infidelity but from the violation of emotional and sexual exclusivity, which is a promise made between spouses’. In this context, emotional or romantic infidelity can cause just as much harm as physical adultery, if not more. The emotional betrayal that occurs when one partner forms a close romantic or emotional bond with someone outside the marriage can severely damage the trust and emotional intimacy that are essential for a healthy marital relationship.
Modern relationships also face the challenge of virtual infidelity, where one spouse engages in emotional or romantic relationships over the internet, often through social media or messaging platforms. Virtual infidelity, as highlighted in studies conducted by the American Association for Marriage and Family Therapy, can be just as damaging
A Catch-all ground for Divorce
Under the Indian divorce laws, the concept of cruelty is another possible ground for divorce. Many courts have allowed divorce based on cruelty when one spouse’s behavior causes mental or emotional suffering to the other. In some cases, non-adulterous infidelity, such as emotional affairs or online relationships, has been categorized as cruelty, as it often leads to significant emotional pain and distress.
However, cruelty as a ground for divorce is ambiguous and open to judicial discretion. The Supreme Court has observed that cruelty is a flexible concept, and its interpretation varies based on the circumstances of each case. This fluidity leads to inconsistency in judicial decisions. For example, while some courts have recognized online or emotional infidelity as cruelty, others have dismissed it as mere misconduct or failed to recognize the emotional damage it causes.
The unpredictability of cruelty as a ground for divorce is a significant issue. Relying on cruelty to address the problem of non-adulterous infidelity does not provide consistent legal remedies for aggrieved spouses. The discretion allowed to courts in interpreting cruelty can lead to confusion, inconsistency, and a higher number of appeals, placing unnecessary strain on the judicial system.
Replacing Adultry with Marital Infidelity
Given the limitations of the current legal framework, it is time for Indian divorce laws to recognize “marital infidelity” as a broader and more inclusive ground for divorce. Marital infidelity should encompass both physical and non-physical acts of betrayal, including emotional affairs, online infidelity, and romantic relationships that do not involve sexual intercourse. This reform would allow the law to better reflect the realities of modern relationships, where trust is often violated through emotional or virtual connections rather than physical acts of infidelity.
To implement this change, the legal system should define marital infidelity clearly. One possible approach is the “third-party involvement test,” which would recognize any extramarital relationship involving a third party as marital infidelity, whether or not sexual intercourse occurs. This would create a balance between a broad definition of marital infidelity and the need for judicial discretion.
Conclusion
The current legal framework governing divorce in India fails to address the growing issue of non-adulterous infidelity, which can be as emotionally damaging to a marriage as physical adultery. By replacing “adultery” with “marital infidelity” as a ground for divorce, Indian divorce laws would reflect the emotional and psychological harm caused by all forms of infidelity, including emotional and online affairs. This reform would not only provide a fairer legal remedy for aggrieved spouses but also better align with the evolving nature of marriage in the modern world. By acknowledging the broader definition of infidelity, Indian law can protect the emotional integrity of marriage and uphold the sanctity of the marital relationship in a more comprehensive manner.