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PETITIONER
TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................2

INDEX OF AUTHORITIES......................................................................................................3

STATEMENT OF JURISDICTION..........................................................................................4

STATEMENT OF FACTS.........................................................................................................5

STATEMENT OF ISSUES........................................................................................................6

SUMMARY OF ARGUMENTS...............................................................................................7

1. Whether, the ground for divorce is maintainable or not?

2. Nita Bagchi’s spouse has been sending someone explicit texts and nude photos. Is

this enough to prove adultery?

3. Whether, circumstantial evidence is enough to have a decree of divorce?

4. Whether the respondent have inclination towards the office colleague?

PRAYER..................................................................................................................................12
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PETITIONER
LIST OF ABBREVIATIONS

& And
WB West Bengal
Art. Article
Govt. Government
Hon’ble Honorable
No. Number
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PETITIONER
INDEX OF AUTHORITIES

Table of Cases

1. Sulekha Bairagi v. Prof. Kamala Kanta Bairagi AIR 1980 Cal 370, (1980) 2 CompLJ
82 Cal, 84 CWN 716
2. Banchanidde v Kamladas AIR 1980 Ori 171
3. Ammini E.J. v. Union of India AIR 1995 Ker 252
4. Pattayee Ammal v. Manickam Gounder and Anr. AIR 1967 Mad 254.,
5. England v. England (1952) 2 All ER 784
6. Earnest John White Vs Mrs. Kathleen Olive White and Others AIR 1958 SC 0441

References of book

1. Code of Criminal Procedure,1973

It is humbly submitted that this Hon'ble Court has jurisdiction over the matter, since the
incident took place at 12, Behala Road in the jurisdiction of the Learned Alipore District
Court.
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PETITIONER
STATEMENT OF FACTS

 Nita Bagchi filed a divorce suit against Kunal Bagchi residing on 12, Behala Road in
Alipore District Court. The suit was filed on 5th June 2019.
 The allegation is related to adultery.
 It was alleged that Kunal Bagchi, working in MNC in Park Street wrote letter to fellow
worker Bina Roy.
 The letter was produced before Court which showed that Kunal Bagchi liked Bina Roy.
 In defense Kunal Bagchi said that as adultery is decriminalized it cannot be used
as ground for divorce.
 Nita Bagchi argued that it might be decriminalized but as long as it is part of the Statute
Hindu Marriage Act, 1955, as ground of divorce u/s 13 A it can still be used as ground
for divorce.

STATEMENT OF ISSUES

1. Whether, the ground for divorce is maintainable or not?

2. Nita Bagchi’s spouse has been sending someone explicit texts and nude photos. Is

this enough to prove adultery?

3. Whether, circumstantial evidence is enough to have a decree of divorce?

4. Whether the respondent have inclination towards the office colleague?

SUMMARY OF ARGUMENTS

Adultery has always been discouraged throughout the history of mankind. In India, till
1976, a petition for divorce on the grounds of adultery could be filed only when the spouse was
“living in adultery”, but now a petition can be filed on the grounds of adultery even when there
has been only on instance of voluntary sexual intercourse outside the marriage.

The Courts have taken a serious view of adultery and granted contested divorce in India
taking into consideration various social conditions and circumstances of the party seeking
divorce including the presence of children. Delay in filing of petition especially when there are
children involved is taken lightly.
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PETITIONER
There is no steadfast rule that can be commonly used for all adultery-related cases. The
court has the discretion to treat each case on its own merits and demerits. These might include
children, society, familiar considerations and also the economic status of the parties.

1. Whether, the ground for divorce is maintainable or not?

Under Section 13(1)(i) in The Hindu Marriage Act, 1955 which states that:

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or]

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or

Section 10 of the Hindu Marriage Act, 1955 defines adultery as a ground for judicial
separation. The provision states that the parties to a marriage may file for a decree of judicial
separation under any of the grounds mentioned in Section 13(1), irrespective of the marriage
being solemnized after or before the commencement of this act.

So, the ground for divorce as adultery is maintainable as stated above.

2. Nita Bagchi’s spouse has been sending someone explicit texts. Is this enough to

prove adultery?

Before the enactment of the Marriage Laws, 1976, adultery was treated as a conduct of
grave immorality. It was a thing of grave shame irrespective of the gender; however, it wasn’t
a ground for divorce. After the 1976 Amendment, the grounds for judicial separation and
divorce are the same and it is a mark of great development in the Hindu Personal Laws.

In the case of Sulekha Bairagi v. Prof. Kamala Kanta Bairagi1 AIR 1980 Cal 370,
(1980) 2 CompLJ 82 Cal, 84 CWN 716, both Section 10 and Section 13 of the Hindu Marriage
Act. According to the husband, she used to visit the house of the co-respondent and was even
found in a compromising situation with him and that she used to neglect her duties. In this case,
the decision was taken in the favor of the petitioner on merit of the evidence provided, and

1
AIR 1980 Cal 370, (1980) 2 CompLJ 82 Cal, 84 CWN 716
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PETITIONER
judicial separation was granted. The above cases are mainly testament to the fact that cases
such as these are indeed taken on a case to case basis, and decided on the merits of that
particular case.

In the given facts and circumstances also the respondent’s letter to Bina Roy proves the
likeness and the relationship between two or else being a married person why the respondent
has written letter to Bina Roy which shows likeness to her. Further, this act of the respondent
shows the character of the individual who is also irresponsible towards his own wife the
plaintiff herein.

3. Whether, circumstantial evidence is enough to get a decree of divorce?

The next option is to use indirect proof (or circumstantial evidence) of adultery to show:

 your spouse had the chance to commit adultery, such as being alone with the other
person, and
 your spouse had the inclination to commit adultery, meaning given the situation, sexual
intercourse was likely to take place.

Examples of circumstantial evidence showing opportunity include hotel or travel records,

If your spouse is having an affair, you should consider consulting with a divorce attorney
before you do anything about it. Your lawyer can advise you on filing a divorce petition,
whether or not you should base your divorce on adultery, and how to go about getting the
evidence you need to prove your case.

There has been a disparity between various judgments of the Courts regarding the extent
to which circumstantial evidence can be termed as proof of adultery. Such that in the case of
Banchanidde v Kamladas2 AIR 1980 Ori 171, the Odisha High Court held that the
circumstances should be so compelling that the only irresistible conclusion can be adultery.

2
AIR 1980 Ori 171
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PETITIONER
In the case of Ammini E.J. v. Union of India3 AIR 1995 Ker 252, the Kerala High
Court held that the husband is in a favorable position with respect to its being a ground for
divorce because the wife has to prove adultery along with some other aggravating
circumstances and hence it is discriminatory towards the wife. The Court also ruled that the
wife may file for divorce only on the grounds of adultery, without any other qualifying offence
such as cruelty or desertion.

According to the concept and understanding of Circumstantial evidence:

In the case of Pattayee Ammal v. Manickam Gounder and Anr.4 AIR 1967 Mad 254.,
the High Court had occasion to consider the standard of proof necessary in the case where
adultery is pleaded. It was held thus:

“Adultery, from its nature, is a secret act. Direct evidence of an act of adultery
is extremely difficult. It is very rarely indeed that the parties are surprised in
the direct act of adultery. Direct evidence, even when produced, the court will
tend to look upon it with disfavor, as it is highly improbable that any person can
be a witness to such acts, as such acts are generally performed with utmost
secrecy.”

In the case of England v. England5 (1952) 2 All ER 784. admittedly the wife spent one night
with another gentleman. It was even assumed that there was an inclination and opportunity yet
the Court accepted the verbal testimony of the respondent. It was held that there was no rule of
law that evidence of conjunction of inclination and opportunity must raise presumption that

3
AIR 1995 Ker 252
4
AIR 1967 Mad 254.
5
(1952) 2 All ER 784.
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PETITIONER
adultery has been committed. The sworn testimony of the wife and other gentlemen were
accepted by the Court.

Herein in the facts, the letter from the respondent which shows the likeness is the
circumstantial evidence.

4. Whether the respondent have inclination towards the office colleague?

Section 9 of Indian Evidence Act states as:

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support
or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity
of anything or person whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by whom any such fact
was transacted, are relevant in so far as they are necessary for that purpose.

In the case of Earnest John White Vs Mrs. Kathleen Olive White and Others6 AIR
1958 SC 0441, the husband filed dissolution of marriage on the ground of her adultery. Trial
Court had granted the divorce and High Court had reversed the decree of divorce. Appeal
before Supreme Court and Supreme Court held that: The wife went to Patna and stayed with
respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10.
There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent
No. 2 and there is no contrary indication as to the inclination and conduct of the wife. As
adultery has been proved the court allowed this appeal.

In the given facts the inclination of the respondent husband towards the employee Bina
Roy was easily established with the help of the letter which contains explicit writing by the
respondent and their relationship.

Apart from pressing criminal charges, the other remedy available to the aggrieved party
herein the plaintiff is to seek divorce under section 13(1)(i) of the Hindu Marriage Act, 1955.
In a suit for divorce, it is easier to prove adultery and the element of mens rea that is intention
is not necessary to establish.

6
AIR 1958 SC 0441.
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PETITIONER
Usually, there are no direct evidences against adultery and it has to be proven with the
help of circumstantial proofs such as; photographs of the spouse with a third person at secluded
place where they may get intimate or at places like hotels where they may get an opportunity
for physical relationship. Since, it is difficult to have an eyewitness to prove an illicit
relationship; it can be proved indirectly by showing evidences such as hotel bills or travel
records. Also, their public display of affection or their letters, SMS’s etc. can be used as
evidence against the offending party.

PRAYER

Wherefore, in the light of the legal precedents and principles cited and in the lights of
arguments; it is most humbly pleaded before the Hon’ble Court that this Court adjudges and
declare that:

The respondent is guilty of Adultery under section 13(1)(i) in The Hindu Marriage Act, 1955,
and pass a decree for the dissolution of marriage and cancel the marriage certificate along with
the maintenance pendente lite in favor of the plaintiff wife for the welfare in the society.

And pass any other order, direction, or relief that it may deem fit in the best interests
of justice, fairness, equity and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.

COUNSEL FOR THE PETITIONER