What to do if your partner is cheating on you?

Adultery and Cheating

The situation of Disloyalty!

An extramarital affair of a spouse is surely a matter of concern for the one with whom the wedlock is already established. As the relationship of marriage holds some duties and responsibilities for each other and it is a sacred thread that binds two-person and their families together.

The second vow of the Hindu marriage talks about loyalty and faithfulness that must remain between the couple throughout all thins and thicks of life. But the cases of cheating with a partner can be heard or viewed on the news these days recurrently.

Cheating can be defined at different levels, let's have a view on some of the common possibilities

1. Cheating (Not adultery)

A conversational or emotional relationship with someone else of the opposite gender outside the marital relationship mounting a doubt or confirmation of intention to neglect the obligation of marriage by one of the spouses that leads to unfaithfulness and disbelief between the couple. It is also known as an "extramarital affair" without any intimate sexual relationship.

How and from where a petitioner can collect shreds of evidence against the spouse?

He/she can collect screenshots of the messages (of spouse and the third person) from WhatsApp, Facebook, and other social media apps according to the situation particularly and if possible then collect call recordings.

A sufferer can hire a private detective also to collect some photographs and videos for evidence.

The charges he/she spent on detectives to collect pieces of evidence can be claimed when the spouse's adultery will be proved in court.

What to do when your partner is cheating on you?

Possible actions against cheating

1. Strict warning by the spouse who is cheated, as a mutual settlement between the couple with some personal decisions.

2. If both, husband and wife are not happy with each other and they are unable to live with each other, they can file a petition for mutual consent divorce (mentioned in Section-13B of The Hindu Marriage Act, 1955).

3. They can also file for Judicial Separation if they are unable to cohabitate with each other (mentioned in Section-10 of The Hindu Marriage Act,1955).

What is Judicial Separation?

If the petitioner does not want divorce directly but wants to live separate from his/her spouse and needs time to think about divorce and further relations with the spouse, he/she can get judicial separation based on the spouse's adultery. If both the petitioner with his wife or her husband fails to cohabit within one year, the petitioner can file further for divorce proceedings.

Grounds of divorce in cheating

If cheating is combined with "Cruelty" (mentioned in Section-13(1)(i)(a) of The Hindu Marriage Act, 1955) and "Desertion" (mentioned in Section-13(1)(i)(b) of The Hindu Marriage Act, 1955) then it becomes a clear-cut grounds for divorce against the cheater spouse, if proved in the court. According to Hindu Marriage Act,1955. Both Cruelty and Desertion (particularly) are grounds of divorce too.

2. Adultery

What is Adultery?

Adultery can be defined as consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse, during the subsistence of marriage.

According to Section 13(1)(i) of the Hindu marriage act,1955, Adultery is defined as:

“After the solemnization of marriage, sexual intercourse with any person other than his or her spouse” is called adultery.

Adultery is decriminalized in India by a five-judge bench led by former Chief Justice of India Sharad Arvind Bobde in 2018. In India, adultery is not a crime now but it is still an offense against marital relations and also a ground of divorce.

Who can file a petition for adultery?

After the commencement of “The Hindu Marriage Act,1955” Any major Hindu solemnized in marriage and is being cheated by his or her spouse can file a petition for adultery.

Adultery as a ground of divorce?

According to section 13(1) of the Hindu Marriage Act,1955, adultery is a ground of divorce.

One single act of adultery is enough for divorce and judicial separation.

Essential Conditions

1. Adultery must be committed.

2. At the time of the offense, a valid marriage should be subsisting.

3. The sexual intercourse should be consensual (with the consenting party).

4. The intercourse must not be in the unconscious or intoxicated state of the respondent (it should not be under the influence of drugs or liquor).

5. The intercourse must not be in the belief that the adulterer is his or her spouse.

What needs to be proven?

In Indian law, it seems to be the established position that actual penetration needs not to be proven.

If a diagnosis of a venereal disease caused to a spouse after having an extramarital affair (sexual intercourse) is proven in court by authenticating medical reports then it becomes an individual ground for a divorce (mentioned under Section 13(v) of The Hindu Marriage Act, 1955) and it proves adultery too if the spouse gets that disease due to the intimation happened in an extramarital affair.

Example

If an unrelated person is found alone with a wife/husband after midnight in the bedroom or another such place in actual physical juxtaposition unless there is some explanation forthcoming for this, which is compatible with an innocent interpretation.

The only inference a court of law can draw must be that the two were committing an act of adultery together.

If the wife commits an adultery

If a married woman is absent from her house for 4 to 6 days at a stretch and has been seen more than once with a total stranger, there has been no explanation for this leads to an irresistible conclusion that she had committed adultery.

Case Law

Anushka Kumari v. Rohan (December 2017)

Husband filed a petition against his wife alleging that his wife gave birth to a child signifying that he was away from home for a long time and had no physical relationship with his wife so it can't be possible. The court directed them to undergo the D.N.A test.

The Patna court upheld it. 

Tests for proof

1. Mere vasectomy (sterilization) is not proof of adultery, proper semen test must also be taken.

2. Wife just living with husband for 7 days, husband doubts paternity of the child, wife refusing DNA test would prove adultery.

3. A DNA test of a child can also be allowed to be conducted to prove adultery.

4. Diagnosis of a venereal disease caused to a spouse after having an extramarital affair (sexual intercourse).

Testimony by children living with the mother

1. If the children said that the mother is having illicit relationships.

2. They found her conduct so reprehensible that they cooked their food separately despite living with her.

3. If the younger son also said the same about the mother, divorce can be granted to the husband on the grounds of his wife’s adultery.

[If the second marriage is void, then sexual intercourse with the second wife will amount to extramarital intercourse (after the commencement of The Hindu Marriage Act,1955), it is bigamy (a criminal offense and also a ground to divorce for wife under the grounds of divorce given separately for wife under section 13(2)(i) of The Hindu Marriage Act,1955)]

Reliefs, a spouse can get!

If adultery of the spouse is proved in the court then the petitioner may counterclaim for relief under The Hindu Marriage Act, 1955 and any other reliefs under Special Marriage Act 1954, the court may grant him/her such reliefs.

If a wife successfully proves her husband’s adultery in court with such proofs, she can claim the charges she spent for the proceedings and file a petition for maintenance and alimony (relief) under Hindu Marriage Act 1955.

Suggestions, if your spouse is cheating on you!

1. Let it be confirmed first that he/she is engaged in an extramarital affair.

2. Start collecting the proofs for further process, because you may come to know about the need for such pieces of evidence.

3. If you are sure about his/her affair, no doubt this time is much harder for you because you can imagine your shredded life but still it is not the end of your life just because of that cheater, you should stay strong.

4. Try to ask your spouse about all this. If possible, record that moment where he/she confesses the guilt.

5. If your spouse begged you to forgive him/her and promised you that he/she will never repeat it again and you also don’t want to get separated from that person, then you can forgive, but not so easily, you must ask your spouse to confess his/her doings in front of all family members and a promise in front of all that all this will not be repeated again.

6. But if your spouse did it a second time or on repeat, so don’t be a that stupid and emotional life partner, you must not forgive him/her and just go for judicial proceedings with proofs as soon as possible as you can.

7. If you think your spouse may harm you, you should first go for your safety and live somewhere separate from him/her.

8. Prove his/her adultery in court and then you can file a petition for further maintenance.

Effects on children

1. If you have a child or children, then this is not only the matter of you but also of your children, what type of upbringing and care you want to give to your child? 

2. Seeing all this at home affects their mental health, you can’t even imagine how worst this childhood experience can affect them seeing their mother/father suffering and one of their parents doing such annoying acts, what will they do in their future?

3. So, overall you should take your time and just need to think deeply about your children and yourself also.

4. Take suggestions from advocates as well as friends and families and then go for what your own ability wants you to do.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach him at Instagram @shivaanshvermaa