PKD (govt) 12 January 2017

Confession of adultery by wife & admissibility u/s 122 e.a.

1.Hi all, I m Major PK. I have filed a complaint of 497 IPC (adultery) against wife's paramour. My wife has confessed her adulterous relationship by guilt notes as well as during her conversations which I have recorded. The case is at Pre Charge stage.

2. During arguements the accused lawyer took plea of section 30 and section 122 Evidence Act. That the confession made in writing can not admissible against the paramour because my wife is not co-accused (Though I have made her accused no-2 in my complaint but court only summoned the paramour as per defn of 497 IPC)

3. Second arguement was regarding her confession audio, where in the defence counsel submitted that this is conversation between husband and wife and can not be admissible under section 122 E.A. being privilege conversation.

Can you please sugggest if section 30 and section 122 is applicable in case of adultery by wife and her own confession in criminal case against paramour.

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7 Replies

(Guest)

Adultery cant be proved, here 122 of Indian Evidence Act does not hold good in your wifes case.

Sec 30 can be used, but again what is the statement given by paramour? That has to be seen based on that, court will decide whether to convict paramour.

Your wife getting punished is ruled out, only option is take divorce.

Zoheb Khatri (Practicing in Mumbai ZohebKhatri@gmail.com) 14 January 2017

Sec.30 Doesnt hold good here.

You will need to convice the court that It is matter of trial. The privilege is not absolute. Because its effect is to deny evidence at trial, Adultry itself is Crime against Society.

Moreve to butterup your argument, ask for in Camra proceeding to uphold dignity of Accused. :)

Pawan S (Advocate) 14 January 2017

497 IPC present "woman" involved in adultery as a victim not as an accuse.

Thus, in your case the wife is a victim not an accuse.

Section 30 of the evidence acts says “When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.”

But, here the wife is a victim. Which means, the wife has done no offence/crime. Section 30 of the The Indian Evidence Act, 1872 ruled out.

Section 122 of the evidence act comes into the picture, during the suits between the married persons in which one married person is prosecuted for any crime committed against the other.

But again, the wife has done no crime. Thus, section 122 of the The Indian Evidence Act, 1872 ruled out

It seems, you don’t have any direct or circumstantial evidence, except the confession of the wife. But, here the court will not entertain the wife’s confession as an evidence.

Franky, the prosecution seems to be on the slippery ground.

RAJESH MAT (Administrator) 31 January 2017

If woman involved in adultery is treated as victim, then what is the difference b/w IPC section (376) of rape and IPC section (497) of adultery?

Pawan S (Advocate) 31 January 2017

Seems academic question :

497 IPC - The cognizance of this offence is limited to adultery committed with a married woman, and the male offender alone had been made liable to punishment. Adultery is an offence committed by a third person against a husband in respect of his wife. This section says, Only a man can be proceeded against and punished for the offence of adultery. Wife Can not be punished as an abettor.

No Court shall take cognizance of the offence under 497 IPC except upon the complaint made by the husband of the woman or in absence, by some person who had care of such woman on his behalf at the time when such offence was committed.

PKD (govt) 10 February 2017

charges have been framed in my case. Any advice for conviction evidences.

Nitish Banka (lawyer) 10 April 2018

Divorce on Adultery

Posted by: Nitish Banka Categories: Civil Law

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Divorce on Adultery

Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary s*xual intercourse
with any person other than his or her spouse;

Divorce on Adultery

Now How to prove Adultery in Indian Courts?

The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the cruelty ground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.

Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.

What are the facts that can prove adultery?

Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.

But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary s*xual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.

Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man? that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.

Conclusion

The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.

Advocate Nitish Banka

9891549997

nitish@lexspeak.in