Direct evidence of sex not needed to prove adultery: Madras High Court

The Madras High Court recently held that direct evidence of sexual intercourse is not essential to establish adultery in matrimonial disputes.

A Division Bench consisting of Justice CV Karthikeyan and Justice K Rajasekar held that circumstantial evidence such as public proximity between parties and a complaint by the paramour’s spouse can be sufficient to grant divorce.

The High Court underscored the inherent difficulty in proving adultery through direct evidence.

"It is also to be noted that adultery itself is an act of secrecy. It is extremely difficult to produce any direct evidence on the issue of adultery or sexual intercourse," observed the Court.

The Court was dealing with an appeal filed by a husband challenging a family court order that had refused to dissolve his marriage on the ground of adultery by his wife under Section 13(1)(i) of the Hindu Marriage Act (spouse can file for divorce on the ground of adultery).

The husband alleged that his wife was involved in an illicit relationship with another man, pointing to instances where the two were seen together in public places.

He relied on the testimony of witnesses who claimed to have observed them in close proximity on multiple occasions, including at a school and a hospital. One such witness also produced a photograph showing the wife and the paramour seated close to each other.

Additionally, the husband also relied on a complaint lodged by the paramour’s wife before the police. She alleged that her husband was in a relationship with the wife and that it had caused discord in her own marriage.

The High Court treated this as corroborative material supporting the allegation.

The family court had earlier dismissed the plea, holding that such material did not conclusively establish adultery, particularly in the absence of direct proof of a sexual relationship.

Disagreeing with this approach, the High Court emphasised that the law does not demand impossible standards of proof.

"We are conscious that dissolution can be granted only when sexual intercourse is proved. But, again, we have to reiterate that it would be extremely impossible to get direct evidence on sexual intercourse," the High Court said.

The Court noted that adultery, by its very nature, is clandestine, and therefore must often be established through surrounding circumstances and reasonable inferences drawn from consistent evidence.

It also took note of the husband’s occupation in the Central Reserve Police Force (CRPF), observing that the nature of his service required him to stay away from the matrimonial home for long periods, with leave available only a few times a year. This, it noted, was a relevant circumstance for assessing the likelihood of the alleged relationship developing in his absence.

After observing all the evidence on record, the Court concluded that the circumstances pointed towards the existence of an illicit relationship.

“We hold on an overall analysis of the evidence and the circumstances… the possibility of development of illegal relationship by the first respondent (wife) with the second respondent (paramour) cannot be ruled out,” held the Court.

Hence, the High Court set aside the family court judgment and granted divorce to the husband.

Advocate I Sharukumar appeared for the husband (petitioner).

Advocate M Karthick and AR Ilavarasan represented the wife (respondent 1).

[Read Order]