Desertion & Adultery under Hindu Marriage Act: Evidentiary Standards under Bharatiya Sakshya Adhiniyam, 2023 & Electronic Proof

17 - Desertion & Adultery under Hindu Marriage Act: Evidentiary Standards under Bharatiya Sakshya Adhiniyam, 2023 & Electronic Proof

Published by: Sumanjari & Co. Advocates

Section 1: Executive Overview & Practical Reality

Among the traditional fault grounds codified under the Hindu Marriage Act, 1955, Desertion (Section 13(1)(ib)) and Adultery (Section 13(1)(i)) represent distinct evidentiary challenges. While cruelty often rests on subjective interpersonal distress, desertion demands strict chronological adherence to a two-year statutory clock and the dual elements of physical abandonment and deliberate intention to permanently sever marital ties (animus deserendi). Conversely, adultery strikes at the biological and moral sanctity of marriage, yet direct eyewitness testimony of voluntary extra-marital sexual intercourse is almost never obtainable.

In modern family law practice across Lucknow, Allahabad, Noida, and Uttar Pradesh, establishing these grounds has been transformed by forensic digital evidence and recent legislative reforms. Litigants no longer rely solely on oral assertions or neighbourly gossip. Instead, desertion is established through formal legal notices, travel departure records, and WhatsApp transcripts documenting categorical refusals to cohabit. Adultery is established through circumstantial chains of evidence: hotel check-in registers, flight manifests, digital photographs, Call Detail Records (CDRs), and encrypted messaging exchanges.

Navigating these grounds requires rigorous adherence to statutory rules. Following the decriminalization of adultery under Section 497 IPC by the Supreme Court in Joseph Shine v. Union of India (2019), adultery remains fully intact as a civil ground for divorce. Furthermore, with the enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), every piece of electronic communication must satisfy the statutory admissibility criteria under Section 63 BSA, while procedural rules require the mandatory impleadment of the alleged paramour as a co-respondent.

Section 2: Statutory & Legislative Architecture

The substantive and procedural provisions governing desertion and adultery are embedded across personal laws and the new evidentiary code:

• Section 13(1)(i) of the Hindu Marriage Act, 1955 (Adultery): Authorizes divorce where the respondent has, after solemnization of marriage, "had voluntary sexual intercourse with any person other than his or her spouse." Following the 1976 Amendment, a single act of voluntary extramarital intercourse is sufficient to maintain a petition; the older requirement of proving that the spouse was "living in adultery" was repealed for divorce.
• Section 13(1)(ib) of HMA, 1955 (Desertion): Entitles a spouse to divorce where the respondent has "deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition." The Explanation explicitly clarifies that desertion includes the willful neglect of the petitioner without reasonable cause and without consent.
• The Doctrine of "Constructive Desertion": Desertion is not always withdrawal from a place; it is a withdrawal from a state of things. If one spouse's intolerable, abusive, or cruel conduct compels the other spouse to flee the matrimonial home, the spouse who created the intolerable atmosphere is legally guilty of "constructive desertion."
• Sections 61, 62 & 63 of Bharatiya Sakshya Adhiniyam, 2023 (BSA): Corresponds to former Section 65B of the Indian Evidence Act. Electronic records (WhatsApp chats, text messages, digital photographs, CDRs, hotel booking emails) are admissible as primary or secondary evidence. Section 63 BSA mandates a formal electronic certificate signed by the person managing the device or lawful custodian, establishing the integrity, provenance, and hash value of the digital file.
• Mandatory Impleadment of Adulterer (High Court Rules): Under the Hindu Marriage Rules framed by the High Court of Judicature at Allahabad, in any petition for divorce on the ground of adultery, the alleged adulterer (paramour) must be made a co-respondent, unless excused by the court on specific grounds (such as the adulterer's identity being completely unknown despite diligent inquiry).

Section 3: Landmark Judicial Precedents

The evidentiary standards governing desertion and adultery have been formulated by leading Supreme Court authorities:

• Bipinchandra Jaisinghbai Shah v. Prabhavati (1956) SCR 838 (Supreme Court of India): The foundational constitutional precedent on desertion. The Supreme Court laid down that to establish desertion, two essential elements must co-exist on the part of the deserting spouse: (1) the factum of physical separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements must be proven by the deserted spouse: (1) absence of consent to the separation, and (2) absence of conduct giving reasonable cause to the spouse to leave.
• Lachman Utamchand Kirpalani v. Meena @ Mota (1964) 4 SCR 331 (Supreme Court of India): Reaffirmed that the two-year period of desertion must be continuous and unbroken immediately preceding the presentation of the petition. If the deserting spouse makes a genuine, bona fide offer to return during the two-year window, the desertion is terminated.
• Joseph Shine v. Union of India (2019) 3 SCC 39 (Supreme Court of India - 5-Judge Constitution Bench): While striking down Section 497 of the IPC as unconstitutional, the Constitution Bench authoritatively clarified that adultery remains fully available as a legitimate, civil ground for dissolution of marriage under Section 13(1)(i) HMA and personal laws. Decriminalization does not sanitize marital infidelity.
• Deb Narayan Halder v. Anushree Halder (2003) 11 SCC 416 (Supreme Court of India): Held that a wife who leaves the matrimonial home voluntarily without justifiable excuse and fails to prove allegations of cruelty or dowry harassment cannot take advantage of her own wrong under Section 23(1)(a) HMA.
• Sanjeev Kumar v. Sangeeta (2019) SCC OnLine Del 8812 (Delhi High Court): The High Court held that direct evidence of adultery is rarely available; the court must draw inferences from circumstantial evidence. Where a spouse is proven to have stayed overnight in a hotel room with a third party under fictitious names, the inference of voluntary sexual intercourse is irresistible.

Section 4: Stage-by-Stage Litigation Roadmap

The procedural chronology for litigating divorce on grounds of desertion and adultery follows an exacting evidentiary path:

Section 5: Tactical Offenses, Defenses & Critical Pitfalls to Avoid

Core Tactical Strategies

• The Contemporaneous Notice Trail for Desertion: To prove animus deserendi, do not rely on oral claims. Produce registered letters, speed post communications, and email invites issued during the two-year period inviting the spouse to return. When the spouse responds refusing cohabitation or ignores the letters, the intention to permanently end cohabitation is conclusively proved under Bipinchandra.
• The Circumstantial Proof Matrix for Adultery: Adultery does not require caught-in-the-act video recordings. Courts apply the "preponderance of probabilities" test: establish (a) inclination, and (b) opportunity. Proving that the spouse and paramour checked into a private hotel room overnight (hotel register with identification IDs) satisfies the opportunity test, creating an irresistible presumption of adultery.
• Subpoenaing Hotel & Travel Records under Court Precept: Private investigator photographs are often disputed. Strengthen the case by applying under Section 94 BNSS / Order XVI Rule 1 CPC for court summons directing the General Manager of the hotel to produce certified extracts of guest registration cards and CCTV footage.

Critical Pitfalls to Avoid

• Filing Desertion Petitions Prematurely: Filing for divorce even one day before the complete completion of 2 years (e.g. at 1 year and 364 days) is an incurable jurisdictional defect. The petition must be dismissed as premature, forcing the petitioner to restart litigation from scratch.
• Failure to Implead the Paramour: Under the Allahabad High Court Family Court Rules, failing to implead the alleged adulterer as a co-respondent without seeking prior leave of the court renders the petition liable to be struck out.
• Illegal Phone Tapping & Hacking: Installing spyware on a spouse's phone or recording private phone calls illegally violates the fundamental right to privacy under Article 21 (K.S. Puttaswamy) and Section 43/66 of the Information Technology Act, 2000, which can lead to counter-criminal complaints.

Section 6: Ready-to-Use Court Drafting Template

Below is an unabridged, ready-to-use legal drafting model of a Divorce Petition on Grounds of Adultery and Continuous 2-Year Desertion under Section 13(1)(i) and 13(1)(ib) of the Hindu Marriage Act, 1955 filed before the Principal Judge, Family Court, with the paramour impleaded as Co-Respondent No. 2:

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT

LUCKNOW, UTTAR PRADESH

MATRIMONIAL CASE NO.          OF 2026

IN THE MATTER OF:

Shri Varun Singhal,

S/o Shri O.P. Singhal,

Aged about 37 years, Occ: Regional Business Director,

R/o Flat No. 804, Tower 3, Parsvnath Planet, Gomti Nagar, Lucknow, UP ... Petitioner / Husband

VERSUS

1. Smt. Divya Singhal,

W/o Shri Varun Singhal, D/o Shri K.L. Bansal,

Aged about 34 years, Occ: Commercial Designer,

R/o House No. B-44, Sector C, Mahanagar, Lucknow, UP ... Respondent No. 1 / Wife

2. Shri Sameer Malhotra,

S/o Shri P.K. Malhotra,

Aged about 36 years, Occ: Corporate Consultant,

R/o Villa No. 12, Jaypee Greens, Greater Noida, UP ... Respondent No. 2 / Co-Respondent (Paramour)

PETITION UNDER SECTION 13(1)(i) AND SECTION 13(1)(ib) OF THE HINDU MARRIAGE ACT, 1955 FOR DISSOLUTION OF MARRIAGE BY A DECREE OF DIVORCE ON GROUNDS OF ADULTERY AND CONTINUOUS DESERTION FOR OVER TWO YEARS

MOST RESPECTFULLY SHEWETH:

1. That the Petitioner and Respondent No. 1 are Hindu by religion, and their marriage was solemnized on 28th April 2018 at Lucknow according to Hindu rites and ceremonies. Certified copy of the Marriage Certificate is annexed as Annexure P-1.

2. That after the marriage, the parties resided together as husband and wife at the Petitioner’s residence in Gomti Nagar, Lucknow. Out of the said wedlock, one male child, Master Ayaan (aged about 5 years), was born.

I. GROUND OF DESERTION (SECTION 13(1)(ib) HMA):

3. That on 10th January 2024, Respondent No. 1, without any justifiable cause, excuse, or provocation, packed all her personal belongings, jewelry, and took the minor child, and abandoned the matrimonial home permanently.

4. That since 10th January 2024, Respondent No. 1 has lived continuously separated from the Petitioner for an unbroken period of more than 2 (two) years immediately preceding the presentation of the present petition (a continuous period of 2 years and 7 months).

5. That the Petitioner made repeated, documented efforts to bring Respondent No. 1 back to the matrimonial home, issuing formal communications dated 15th March 2024, 20th July 2024, and 5th January 2025, offering full emotional support and family counseling. Respondent No. 1 categorically rejected all overtures vide her written reply dated 15th February 2025 stating: "I have moved on with my life and will never return to you or your family." (Certified copies of letters and postal receipts annexed as Annexure P-2 Colly). Thus, both the factum of separation and the animus deserendi as mandated in Bipinchandra Jaisinghbai Shah v. Prabhavati (1956) SCR 838 stand conclusively established.

II. GROUND OF ADULTERY (SECTION 13(1)(i) HMA):

6. That after abandoning the matrimonial home, Respondent No. 1 entered into an illicit, adulterous relationship with Respondent No. 2 (Shri Sameer Malhotra), who was her former corporate colleague. Respondent No. 1 has had voluntary sexual intercourse with Respondent No. 2 on multiple occasions across diverse locations.

7. That the specific instances of adulterous cohabitation between Respondent No. 1 and Respondent No. 2 are itemized hereinunder:

• (a) Between 14th September 2024 and 18th September 2024, Respondent No. 1 and Respondent No. 2 stayed together in a single luxury suite (Room No. 412) at Hotel Grand Hyatt, Goa, checking in together under a single reservation booking (Certified copies of booking confirmation and billing invoices retrieved legitimately are annexed as Annexure P-3).
• (b) Between 24th December 2024 and 28th December 2024, Respondent No. 1 and Respondent No. 2 traveled together on Indigo Flight 6E-2104 from Lucknow to Dubai and cohabited in a private apartment at Downtown Dubai (Copies of boarding passes and photographic exhibits are annexed as Annexure P-4).
• (c) The Petitioner is filing alongside this petition a formal Electronic Certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 verifying the authenticity, device hash value, and provenance of the digital photographs and communications establishing voluntary adulterous cohabitation.

8. That in Joseph Shine v. Union of India (2019) 3 SCC 39, the Hon'ble Supreme Court held that voluntary sexual intercourse outside wedlock remains an absolute civil ground for divorce under Section 13(1)(i) HMA.

9. That the Petitioner has not in any manner been an accessory to, or connived at, or condoned the acts of adultery or desertion complained of under Section 23(1)(b) of the Act.

PRAYER:

It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

(a) Pass a decree of divorce dissolving the marriage solemnized between the Petitioner and Respondent No. 1 on 28th April 2018 on grounds of Adultery and Continuous 2-Year Desertion under Section 13(1)(i) and Section 13(1)(ib) of the Hindu Marriage Act, 1955;

(b) Direct Respondent No. 1 to hand over the permanent legal and physical custody of the minor child, Master Ayaan, to the Petitioner;

(c) Award costs of the proceedings in favour of the Petitioner against the Respondents;

(d) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the interest of justice.

PETITIONER (VARUN SINGHAL)

Through Legal Counsel:

SUMANJARI & CO. ADVOCATES

Chambers: Chamber No. D-311, Block D, Allahabad High Court, Lucknow Bench

Dated: [Current Date]

Place: Lucknow, Uttar Pradesh

VERIFICATION

I, Varun Singhal, the Petitioner abovenamed, do hereby verify that the contents of paragraphs 1 to 5 are true to my personal knowledge, and contents of paragraphs 6 to 8 are believed by me to be true based on authentic documents and electronic records, and nothing material has been concealed therefrom. Verified at Lucknow on this [Current Date].

DEPONENT

Section 7: Practical FAQs

Q1: Can a court order a DNA paternity test of a minor child to prove adultery against the wife in divorce proceedings?

Answer: Courts exercise extreme caution before ordering DNA paternity tests. Under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 112 IEA), birth during marriage is conclusive proof of legitimacy unless non-access is proven. The Supreme Court in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) held that DNA tests cannot be ordered routinely or as a fishing expedition. The husband must first establish a strong prima facie case of non-access during the conception window; only then can the court direct a DNA test, balancing the child's right to legitimacy against the husband's plea of adultery.

Q2: What is the legal difference between "Actual Desertion" and "Constructive Desertion"?

Answer: Actual desertion occurs when one spouse physically packs their bags, departs the matrimonial residence, and refuses to return with an intention to permanently end marriage. "Constructive desertion" occurs when one spouse commits acts of severe cruelty, domestic abuse, or intolerable behavior that practically forces the other spouse to flee the house for their own physical safety. In constructive desertion, the spouse who drove the other away is legally deemed to be the deserter, even though they remain physically in the matrimonial home.

Q3: What happens if the petitioner condones adultery by having marital relations after discovering the affair?

Answer: Under Section 23(1)(b) of the Hindu Marriage Act, 1955, condonation operates as an absolute statutory bar. If a husband discovers that his wife committed adultery, but forgives her, accepts her back into the marital bed, and resumes full sexual cohabitation, the prior adultery is legally condoned. He cannot subsequently file for divorce based on that past act unless the spouse commits fresh acts of adultery or matrimonial cruelty, which legally "revives" the original offense.

Q4: Why is it mandatory to implead the alleged paramour as a co-respondent under Allahabad High Court Rules?

Answer: The procedural rules framed by the High Court of Judicature at Allahabad mandate that anyone accused of adultery must be made a party (Co-Respondent No. 2) to ensure principles of natural justice. Leveling an allegation of adultery affects the reputation, dignity, and marital status of a third party. The co-respondent has a legal right to appear, file written statements, cross-examine the petitioner, and defend their honor. If the petitioner cannot identify the paramour, they must file a formal application seeking exemption from impleadment.

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Bar Council of India Statutory Disclaimer: This publication is compiled and published strictly for educational, scholarly, and strategic informational guidance of the bar, bench, corporate clients, and litigants navigating matrimonial dispute resolution. In compliance with the Bar Council of India Rules, this document does not constitute advertisement, personal communication, solicitation, invitation, or legal advice. Receipt or reading of this guide does not establish an attorney-client relationship. Litigants are expressly advised to seek personalized legal counsel based on the specific facts, jurisdictional nuances, and evidentiary matrix of their respective matters before initiating or defending litigation.