"Law Can't Be Powerless To Stop Clandestine Unions": Court On Adultery

The absence of a law making adultery an offence cannot provide "blanket immunity" to spouses in extramarital relationship and leave the victim individuals without a remedy, the Delhi High Court has said.

In a judgement released on Friday, the high court said bigamy is an offence against conjugal right of the victim spouse and, in the face of a preference for live-in relationships, which is also recognised, due changing societal norms, law cannot be powerless against clandestine marriages and unions.

Justice Swarana Kanta Sharma said it was crucial to ensure legal protection for those who have committed to the sanctity and values of marriage and the requirement of proving a second marriage for the offence of bigamy was "dangerous for society and for the victim spouse".

"While people in today's era may or may not agree to the relevance of institution of marriage, but once legally married, the duty and the obligation by virtue of solemnization of marriage gives both the parties a new social and legal status," the court observed.

"In essence, the absence of law making adultery an offence cannot provide individuals with a blanket immunity.. The Courts cannot afford to leave individuals without a legal remedy, especially those wives or husbands whose partners have entered into another marriage," it added.

The court's observation came while dealing with a case in which the husband, during the subsistence of his first marriage, allegedly lived as a married couple with another woman and even had a daughter with her.

The court said although individuals in live-in relationships were legally protected, such safeguards must not come at the expense of the legal rights and protection afforded to spouses who are lawfully married.

"While recognizing and respecting the legal standing of live-in relationships and the individuals who opt for this lifestyle, it is crucial to strike a balance that ensures legal protection for those who have committed to the sanctity and values of marriage," Justice Sharma said.

The court stated that monogamy was a fundamental value and way of life under Hindu law and, while contemplating changes to legal frameworks, it was imperative to strike a delicate balance between upholding traditional values and responding to the evolving dynamics of contemporary society.

"The law cannot be powerless to stop, punish or limit clandestine marriages and unions when the first wife or husband are alive and the valid marriage subsists, as now a spouse performing a second clandestine marriage would not also be liable to punishment for adultery as it is no more an offence," said the judge.

The court observed that clandestine marriages are difficult to prove and the inability of a partner to prove performance of 'saptapadi' (seven rounds around fire) by the other partner for the second marriage should not be exploited as a "clever tactic to circumvent the legal consequences of committing offence of bigamy".

In the absence of sufficient proof of second marriage, the court said, it would be a "travesty of justice" to let the husband escape liability towards the first wife and upheld the summons issued by the trial court to the husband for the alleged offence of bigamy.

"This Court takes cognizance of the fact that the inability of one partner to prove performance of saptapadi by the other partner while marrying for the second time during subsistence of first marriage, at the stage of summoning itself, especially when the other partner may have solemnized such marriage with the third person in secrecy, should not be exploited as a clever tactic to circumvent the legal consequences of committing offence of bigamy.

"While legal proceedings do involve strategic elements, such smart maneuvers should not be allowed to compromise the principles of fairness and justice," the court added.

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