Premarital unchastity of wife ground of divorce

Question

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.

Question asked on 30/04/2016

Answered by: Advocate Shivendra

According to section 12(1)(c) of the Hindu Marriage Act, marriage becomes voidable if the consent of the party to the marriage obtained by force or fraud. Such fraud or deception must be committed towards the nature of the ceremony or to any material fact or circumstance of the respondent (wife or husband).

Material fact or circumstance 

However, the virginity of a girl is a material fact, but it is not a ground 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 is said to be chaste. She is unchaste if she indulged in sexual intercourse before marriage. 

Pre-marriage sexual intercourse or unchastity is no ground of nullity under section 12(1)(c) as well as no ground of divorce under section 13 HMA. Post marriage sexual intercourse (consensual sex) not amounting to rape is a ground of divorce under section 13 of the Hindu Marriage Act

Surjeet vs Rajkumari, 1967 Punj; Raghunath vs Vijay 1972, Bom; the Bombay High Court held that pre-marriage unchastity of the wife though unknown to the husband at the time of marriage is not a ground of nullity under section 12(1)(c) of the Hindu Marriage Act. 

Chastity is a little personal quality, and unchastity at the time of the marriage does not amount the marriage voidable. Disclosing the fact of affair is not an essential condition of the marriage. More importantly, undeclared pre marriage relationship does not necessarily prevent the woman from becoming a faithful wife. Also she does not incapable to perform marital obligation or beget the child.

The reason of not recognise premarital unchastity as the ground of annulment seems that even a worst of woman may preform if disgusted with her former life. Therefore, law does not impose a ban upon the implementation of genuine and honest determination to lead a life of chastity and virtue.

In Rajaram v. Deepabai, (AIR 1974 M. P. 52) a Division Bench of Madhya Pradesh High Court also held that fraud within the meaning of Section 12(1)(c) does not include representation or concealment each fact. 

Thus it is evident from the above discussion that concealment of pre-marriage affair or unchastity of wife is no ground of nullity of marriage. However, the Hindu Marriage Act does not define the word fraud. 

Section 17 of the Indian Contract Act defines the word fraud. That definition of fraud is not applicable in matrimonial causes [Nand Kishor vs Munni Bai AIR 1979 M. P.]because by the marriage law (amendment) act 1976,  scope of the word fraud is limited as to nature of the ceremony or as to any material fact or circumstance concerning the respondent.

These are the fundamental facts which vitiate the consent and render the marriage voidable : 

  • The identity of the party (wife or husband) to the wedding, 
  • Concealment of pre-marriage status like divorce of wife
  • Begotten a child 
  • Concealment of religion or caste
  • Concealment of illegitimacy etc.

If you file a suit of divorce or judicial separation on the ground of premarital unchastity it shall not be maintainable. Section 13 of the Hindu Marriage Act provides grounds of divorce. These grounds are the same for the decree of judicial separation. 

Premarital unchastity is no ground of divorce. Postmarital unchastity i.e. “adultery” is a ground of divorce under section 13 HMA. According to judicial precedents, premarital unchastity does not cause cruelty on the husband.

Desertion of wife on premarital unchastity causes cruelty on the wife, and she can file a divorce petition under section 13 of the Hindu Marriage Act on the ground of cruelty. If you felt cheated and do not want to live with her, you may proceed for mutual consent divorce. 

Mutual consent divorce is purely a contract hence, consent of wife id necessary. This is the only way thereby you can end marital relationship. It is based upon no-fault liability, therefore, no need to prove the guilt of the opposite party.

You should wait for one year and after that file a petition under section 13 B of the Hindu Marriage Act for mutual consent of divorce with the following averments that :

  • We have been living separately for one year.
  • We have not been able to live together and mutually agreed to live separately.

It is not necessary that the spouse has been living in different places for a period of one year. If you have been living under one roof, you have to prove that you have never lived as husband and wife. Premarital unchastity may be admissible as evidence to prove the reason behind such breakdown of the marriage.

You cannot file a criminal case under section 497 of IPC for the offence of adultery because the relationship is premarital. As well as you’ll have no evidence to prove the existence of premarriage sexual intercourse. 

Hon’ble Supreme Court has finally settled the controversy on pre-marital sex by holding that “while it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marriage setting, with the exception of ‘adultery’ as defined under Section 497 IPC [S. Khushboo Vs Kanniammal & Anr.]

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Shivendra Pratap Singh

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