Response

Yes the husband can file for divorce under grounds of adultery.

Adultery can be treated as civil wrong for dissolution of marriage, but not criminal offence. Under the present Indian personal laws, adultery is laid down as one of the grounds for divorce or judicial separation.

The essential ingredients in an offence of adultery are that:
– There should be an act of sexual intercourse outside the marriage, and
– That such intercourse should be voluntary.

No adultery doesn’t come under category of moral turpitude.

The philosophy underlying the scheme of the provisions of Section 497, Indian Penal Code is that as between the husband and the wife social good will be promoted by permitting them to “make up” or “break up” the matrimonial tie rather than to drag each other to the criminal court for the offence of adultery. They can either condone the offence in a spirit of “forgive and forget” and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce.

They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parents.

Reference: Section 497, Indian Penal Code.

202100112202100417120

LAWAYZ-2023-631