My wife had premarital unchastity i.e. pre marriage sex with her boyfriend. I got married on 22/04/2016 at Warangal, Telangana. One day, I received messages and calls from one person saying that the person and my wife is having an affair from 6 years and being in a physical relationship for more than a year. He sent not only messages but also some pics that they have taken together romantically.
After watching all these pics and messages we (all our family members) have decided and took that girl to her parents on 23/04/2016 morning and asked regarding this and she agreed in front of her parents, and all our family members and even her parents also know this affair and wanted arranged marriage with me.
They have cheated me in all aspects hence kindly seeking advice on how to take the step forward and get the divorce or legal separation from that girl Note: The girl is staying with her parents from 23/04/2016 onward.
Asked from: Uttar Pradesh
As per section 12(1)(c) of the Hindu Marriage Act, a marriage can be considered voidable if one party’s consent to the marriage was obtained by force or fraud. The fraud or deception must pertain to the nature of the ceremony or any significant fact or circumstance of the spouse (husband or wife).
Material fact or circumstance
While the virginity of a girl is considered a material fact, it does not constitute grounds for nullity of marriage under section 12(1)(c) of the Hindu Marriage Act (HMA). If a girl is a virgin at the time of marriage, she is considered chaste, while indulging in sexual intercourse before marriage would make her unchaste.
Unchastity or pre-marriage sexual intercourse is not a valid ground for nullity under section 12(1)(c) or divorce under section 13 of the HMA. Adultery, which refers to consensual post-marriage sexual intercourse not amounting to rape, is grounds for divorce under section 13 of the Hindu Marriage Act.
In the case of Surjit Kumar Harichand vs Smt. Raj Kumari; Raghunath vs Vijay 1972, Bom; the Bombay High Court ruled that the pre-marriage unchastity of a wife, even if unknown to the husband at the time of marriage, is not grounds for nullity under section 12(1)(c) of the Hindu Marriage Act.
Chastity
The quality of chastity is personal, and unchastity at the time of marriage does not make the marriage voidable. Disclosing one’s sexual history is not a requirement for marriage. Furthermore, having an undisclosed pre-marriage relationship does not necessarily mean that a woman cannot be a faithful wife or fulfill her marital duties, such as bearing children.
Premarital unchastity or pre marriage sex
The rationale behind not considering premarital unchastity as grounds for annulment is that even a woman with a questionable past may strive to lead a life of chastity and virtue. Therefore, the law does not restrict the ability to make a genuine and honest effort to lead such a life.
In Rajaram v. Deepabai, (AIR 1974 M. P. 52), a Division Bench of Madhya Pradesh High Court also stated that the definition of fraud in Section 12(1)(c) does not encompass concealment or misrepresentation of every fact.
Nullity of marriage
The above discussion indicates that the concealment of a pre-marriage affair or unchastity of a wife is not considered grounds for nullity of marriage. However, the Hindu Marriage Act does not provide a definition of the term “fraud.”
Section 17 of the Indian Contract Act offers a definition of fraud, but it is not applicable to matrimonial cases [Nand Kishor vs Munni Bai AIR 1979 M. P.]. As per the Marriage Law (Amendment) Act 1976, the scope of the term fraud is limited to the nature of the ceremony or any significant fact or circumstance concerning the respondent.
The following are the essential facts that vitiate the consent and make the marriage voidable:
- Concealment of pre-marriage status such as the divorce of a wife
- Begotten a child
- Concealment of religion or caste
- Concealment of illegitimacy, among others.
Filing a divorce or judicial separation suit on the grounds of premarital unchastity is not maintainable. Section 13 of the Hindu Marriage Act provides grounds for divorce, which are the same for a decree of judicial separation.
Premarital unchastity is no ground of divorce
Premarital unchastity is not a valid ground for divorce under Section 13 of the Hindu Marriage Act, but postmarital unchastity, also known as “adultery,” can be used as a basis for divorce. Pre-marital unchastity does not constitute cruelty to the husband, as per judicial precedents.
However, desertion by the wife due to premarital unchastity can be considered cruelty to the wife, and she can file a divorce petition under section 13 of the Hindu Marriage Act on the grounds of cruelty. If you feel cheated and do not want to continue the marriage, mutual consent divorce is an option.
Mutual consent divorce is a contractual agreement that requires the consent of both parties. This is the only way to terminate the marriage without proving guilt. After waiting for one year, you can file a petition for mutual consent divorce under Section 13B of the Hindu Marriage Act. The petition should state that you have been living separately for one year, and you have mutually agreed to live apart.
You do not have the option to file a criminal case under Section 497 of the Indian Penal Code for adultery since the relationship was premarital, and there is no evidence to prove premarital sexual intercourse.
Adultery
The Supreme Court has settled the controversy on pre-marital sex by holding that there is no statutory offence for adults willingly engaging in sexual relations outside the marriage setting, except for adultery, as defined under Section 497 IPC in the case of S. Khushboo Vs Kanniammal & Another. However, premarital unchastity may be admissible as evidence to prove the breakdown of the marriage.
