Adultery May Be Established Through Circumstantial Evidence and Proximity When Direct Proof of Sexual Intercourse is Unavailable

The Appellant (husband), a Constable in the Central Reserve Police Force (CRPF), married the First Respondent (wife) on 24.01.2011

The Appellant filed H.M.O.P. No. 48 of 2019 seeking divorce on the ground of adultery, alleging that the First Respondent had an illicit relationship with the Second Respondent while the Appellant was away on duty

Evidence included statements from the Second Respondent’s wife, who had lodged a police complaint (CSR No. 378/2018) alleging the illicit relationship, and a photograph showing the Respondents in close proximity

The Family Court, Villupuram, dismissed the petition on 01.08.2022, holding that physical relationship/sexual intercourse was not sufficiently proven

1. Whether the petitioner is entitled to divorce on the ground of adultery under Section 13(1)(i) of the Hindu Marriage Act, 1955

2. Whether circumstantial evidence, including testimony of proximity and third-party complaints, is sufficient to prove "voluntary sexual intercourse" in the absence of direct evidence

Section 13(1)(i) of the Hindu Marriage Act, 1955, which provides for dissolution of marriage if a spouse has "voluntarily sexual intercourse with any person other than his or her spouse"

The Court noted the legislative shift from the term "adultery" to "sexual intercourse." It relied on the evidentiary principle that direct evidence of sexual intercourse is rarely available and that the court must rely on circumstantial evidence and the "preponderance of probabilities" to establish such a relationship

The High Court found that the Trial Court erred by demanding a standard of proof nearing ocular evidence of the physical act

The Court analyzed the testimony of PW3 and PW4, who witnessed the Respondents together in "close proximity" in public spaces like school grounds and hospitals. Greater weight was given to Ex.P6–P9 (police records), where the Second Respondent’s own wife alleged the illicit relationship, and Ex.P5 (the photograph), which depicted unwarranted proximity

The Court emphasized that the First Respondent failed to reply to the Appellant’s legal notice specifically naming the adulterer, which served as an adverse inference. Given the Appellant’s long absences due to CRPF service and the corroborated evidence of the Respondents' frequent, intimate interactions, the Court held that a reasonable person would conclude an illicit relationship existed

The High Court allowed the appeal and set aside the judgment of the Family Court, Villupuram. The marriage solemnized on 24.01.2011 was ordered dissolved. No costs were awarded