Read Online Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian - Free Book Online Page B
Authors: Narendra Subramanian
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guilt, may be sufficient to justify the inference that criminal intercourse has actually taken place.” 56 Similarly, courts concluded that a woman had committed adultery based on evidence that she had shared a hotel room with her alleged lover in
Bhagwan Singh Sher Singh Arora v. Amar Kaur
(1962), and that a man and the woman from whom he was renting a room were living in adultery because they “had reasonable opportunity of having sexual intercourse” in
Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff
(1963).
By the 1990s, courts declared that they do not “as a general rule infer adultery from evidence of opportunity alone,” but look for more persuasive evidence of adultery, such as of someone other than the husband having impregnated the woman. 57 Thus, while the Supreme Court annulled a marriage in1964 because the woman delivered a baby less than nine months after her marriage and did not seem to have had premarital sexual contact with her husband, in the 1990s High Courts set aside three lower-court divorce decrees that had been based on evidence that the women respondents had given birth to children over a year after they had last had sexual contact with their husbands because they did not find definite evidence of extra-marital impregnation either. 58 In the last of these cases,
Smt. Leela Pande v. Shri Sachendra Kumar Pande
(1994), the court highlighted the possibility that the pregnancy was the result of rape rather than of voluntary sexual intercourse and criticized the trial court for having failed to attempt reconciliation. The courts tended not to support adultery claims when the evidence did not clearly suggest anything more than a friendship between a man and a woman, but did not urge the reconciliation of estranged couples if their marriages seemed to have irretrievably broken down. This was clear in
Smt. Swayamprabha v. A.S. Chandrasekhar
(1982), in which the court did not find a woman riding on a scooter with a man, traveling with him to another city, and getting “improper” letters from him signs that they were lovers, and said that evidence of the two spending a night together in a hotel room would not have shown that they were lovers either. Rather than attempt spousal reconciliation, it granted the woman a divorce based on the husband’s cruelty in making unfounded adultery allegations. 59 Courts were also reluctant to find adultery based only on the testimony of interested parties (for example, husbands of the women accused of adultery, domestic servants who were on poor terms with these women, or estranged wives of the alleged lovers). 60
However, courts accepted adultery claims that rested on persuasive evidence, especially if the marriages whose dissolution was being sought seemed dysfunctional. For instance, in
Tai v. Harishchandra
(1984), the court upheld the lower court’s divorce decree in the man’s favor based on his wife’s adultery, although the man had also started another relationship; the man’s relationship had started later and the marital problems appeared incapable of resolution. In a similar vein, in
Gita Masand v. Narain Dass
(1985), the trial court had granted the man a divorce because it took the woman to have made a false adultery charge; but the Delhi High Court set this decree aside because it took the woman’s charge of adultery to have been proven by her husband having married his lover in the meantime. The high court felt theman had rushed into another marriage to deter the full consideration of any appeal his first wife might file, and it did not wish to permit him to thus take advantage of his own “extreme wrong.”
Courts assessed charges of women living in adultery particularly carefully because they were aware that men often used them to end their maintenance obligations toward their wives; the courts’ approach did not change significantly in recent decades. The Bombay High Court declared that a woman had committed adultery, but was not living
Bhagwan Singh Sher Singh Arora v. Amar Kaur
(1962), and that a man and the woman from whom he was renting a room were living in adultery because they “had reasonable opportunity of having sexual intercourse” in
Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff
(1963).
By the 1990s, courts declared that they do not “as a general rule infer adultery from evidence of opportunity alone,” but look for more persuasive evidence of adultery, such as of someone other than the husband having impregnated the woman. 57 Thus, while the Supreme Court annulled a marriage in1964 because the woman delivered a baby less than nine months after her marriage and did not seem to have had premarital sexual contact with her husband, in the 1990s High Courts set aside three lower-court divorce decrees that had been based on evidence that the women respondents had given birth to children over a year after they had last had sexual contact with their husbands because they did not find definite evidence of extra-marital impregnation either. 58 In the last of these cases,
Smt. Leela Pande v. Shri Sachendra Kumar Pande
(1994), the court highlighted the possibility that the pregnancy was the result of rape rather than of voluntary sexual intercourse and criticized the trial court for having failed to attempt reconciliation. The courts tended not to support adultery claims when the evidence did not clearly suggest anything more than a friendship between a man and a woman, but did not urge the reconciliation of estranged couples if their marriages seemed to have irretrievably broken down. This was clear in
Smt. Swayamprabha v. A.S. Chandrasekhar
(1982), in which the court did not find a woman riding on a scooter with a man, traveling with him to another city, and getting “improper” letters from him signs that they were lovers, and said that evidence of the two spending a night together in a hotel room would not have shown that they were lovers either. Rather than attempt spousal reconciliation, it granted the woman a divorce based on the husband’s cruelty in making unfounded adultery allegations. 59 Courts were also reluctant to find adultery based only on the testimony of interested parties (for example, husbands of the women accused of adultery, domestic servants who were on poor terms with these women, or estranged wives of the alleged lovers). 60
However, courts accepted adultery claims that rested on persuasive evidence, especially if the marriages whose dissolution was being sought seemed dysfunctional. For instance, in
Tai v. Harishchandra
(1984), the court upheld the lower court’s divorce decree in the man’s favor based on his wife’s adultery, although the man had also started another relationship; the man’s relationship had started later and the marital problems appeared incapable of resolution. In a similar vein, in
Gita Masand v. Narain Dass
(1985), the trial court had granted the man a divorce because it took the woman to have made a false adultery charge; but the Delhi High Court set this decree aside because it took the woman’s charge of adultery to have been proven by her husband having married his lover in the meantime. The high court felt theman had rushed into another marriage to deter the full consideration of any appeal his first wife might file, and it did not wish to permit him to thus take advantage of his own “extreme wrong.”
Courts assessed charges of women living in adultery particularly carefully because they were aware that men often used them to end their maintenance obligations toward their wives; the courts’ approach did not change significantly in recent decades. The Bombay High Court declared that a woman had committed adultery, but was not living
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