Impact of Extra-Marital Relation on The Legal Marriage

1. Impact of Extra-Marital Relation on The Legal Marriage

Adultery is a ground for divorce under Section 13(1)(i) of Hindu Marriage Act, section 27(1)(a) of Special Marriage Act, Section 32 (d) of Parsi Marriage and Divorce Act,1936 and under Section 10 of the Indian Divorce Act .

The ground for getting a decree for divorce on the grounds of adultery is provided as :

The Respondent has after solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse. In other words, the spouse who engages in extra-marital intercourse is guilty of adultery.

Under the Dissolution of Muslim Marriages Act, adultery as such is not a ground for divorce, but if the husband associates with women of evil repute or leads an infamous life, it amounts to cruelty to wife and she can sue for divorce on that ground.

This seems sometimes akin to living in adultery. But none of these enactments, except the Parsi Marriage and Divorce Act, confers any such corresponding right on the husband to dissolution of marriage for extra-marital sexual relations maintained by the wife.

In Shivakumar v Premavathi it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions.

The case of Sunil Eknath Trambake v Leelavati Sunil Trambake clarified that in the matter of proving the paternity of a child, a DNA test can be ordered only in exceptional and deserving cases if it is in the interest of the child.

The charge of adultery is serious as it casts aspersions on the character of the spouse affecting his/her reputation in the society besides raising question marks in terms of the parentage of the child delivered by the wife, therefore not only the charges of adultery should be specific but also should be established in all probabilities.

The proceedings for adultery, under the Hindu Marriage Act, are in the nature of quasi-criminal, as such, higher standard of proof than mere preponderance of probabilities is required as was held in Partap v Veena


2. Impact of Extra-Marital Relation on Children Born outside The Wedlock.

Despite international and national conventions prohibiting discrimination against any child and imposing responsibilities on parents, society and state to protect it in every manner, an illegitimate child born out of an extra-marital relation is still exposed to enormous social, emotional and legal deprivation.

While the parents can foresee the consequences of their socially and legally disapproved alliance in the form of extra-marital relation, the child has no choice in the matter.

The sharing of the physical company and properties between children born outside wedlock would be at the expense of the family, and thus the peace and stability of the marriage would be threatened.

Justice Douglas in 1968 stated that illegitimate children are not non-persons. They are humans and have their being.

2.1 presumption of legitimacy

Under the law there is a presumption in favor of evidence proving legitimacy of a child born during the wedlock. The rule laid down in Russel v Russel was followed in the case of Premchand Hira v Bai Gopal ,was that no evidence can be adduced by spouses that no intercourse had taken place between them if the effect of such evidence would be do bastardize the child.

The force of this presumption in English law is indicated by the remark …we may almost say that every child born to a married woman is in law the legitimate child of her husband.

In India this presumption is statutorily recognized under Section 112 of the Evidence Act 1872 which lays down as a general rule of presumption that a child born during the subsistence of a legal marriage or within 280 days after its dissolution is a legitimate child unless non-access between the parties at the relevant time can be shown.

In a recent judgment of the Supreme Court in the case of Goutum Kundu v State of West Bengal where in an application was filed by the wife for maintenance for herself and her child, the husband denied that he was the father and made an application to the court for blood group test of the child to determine the child’s Paternity.

The same was not granted. It was held that under Section 112 of the Evidence Act, the birth of a child during the continuance of the valid marriage is conclusive proof of the child’s legitimacy.

The blood-grouping test was an attempt made to prove that the child born to the wife couldn’t be the husband’s and as a conclusion of this the wife had committed adultery.

Thus, if the husband has ‘A’ blood group and the wife has ‘B’ blood group then the child will have either ‘A’ or ‘B’ or ‘AB’ blood group and if the child has ‘C’ blood group then this would prove adultery on grounds of this circumstantial evidence. .

Also, in W v. W, a decree of divorce was passed in favor of the husband as the white wife had given birth to a child with Negroid feature but the Court did not allow for the blood test as they were of the opinion that it would bastardize the child.

2.2 Legitimation under Muslim law

Muslim law does not recognize putative father for any purpose. It clings to the concept of filius nullis. Under the Islamic law conception during lawful wedlock determines legitimacy of the child .

There is no process recognized under the Muslim law which confers legitimacy on an illegitimate child. However mohammadans have adopted measures like acknowledgement of paternity which are preventive measures to save the children from being bastardized.

Mohammedan Law has made a special provision for conferring legitimacy on or rather recognizing the legitimacy of a child, whether a son or daughter by the doctrine of acknowledgement of ikrar . It is an acknowledgement of paternity by his putative father.

The person acknowledged must not be the off-spring of zina , which is adultery in Muslim law, as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have been begotten, as where the mother was at that time the wife of another man .Adoption or any equivalent of the same is not recognized under Mohammedan law.


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