Affidavit for Divorce on Adultery under Section 13(1)(i) of the Hindu Marriage Act
This page provides a practical affidavit format for use with a contested divorce petition based on adultery under Section 13(1)(i) of the Hindu Marriage Act, 1955, together with the principal statutory provisions and filing points that should be checked before the document is used.
Section 13(1)(i): adultery as a ground for divorce
Under Section 13 of the Hindu Marriage Act, 1955 on India Code, either the husband or the wife may petition for divorce where the other spouse has, after solemnisation of the marriage, had voluntary sexual intercourse with a person other than his or her spouse.
The statutory ground therefore concerns voluntary sexual intercourse occurring after the marriage. A petition should plead the material facts relied on with sufficient particularity. Where direct evidence is unavailable, the case may depend on the totality of proved circumstances and the inferences that may properly be drawn from them.
Adultery is not a criminal offence, but remains a matrimonial ground
The former offence of adultery under Section 497 of the Indian Penal Code was struck down by the Supreme Court in Joseph Shine v. Union of India. Decriminalisation did not remove adultery as a civil ground for matrimonial relief. The Supreme Court has subsequently reiterated that adultery may continue to support dissolution of marriage under matrimonial law.
Accordingly, a petition under Section 13(1)(i) is a civil matrimonial proceeding. It should not be drafted as though the petitioner is prosecuting a criminal charge of adultery.
Key statutory provisions to check before filing
| Provision | Practical relevance |
|---|---|
| Section 13(1)(i), HMA | Creates the ground of divorce based on voluntary sexual intercourse by a spouse with another person after the marriage. |
| Section 14, HMA | Ordinarily prevents presentation of a divorce petition within one year of marriage, subject to the statutory exception and leave of court. |
| Section 19, HMA | Determines the District Court with territorial jurisdiction, including specified places connected with the marriage, residence and the parties' last matrimonial residence. |
| Section 20, HMA | Requires the petition to state the material facts and the absence of collusion, and requires verification in the manner prescribed for plaints. |
| Section 23, HMA | Requires the court to be satisfied about the ground for relief and, in an adultery case, includes statutory safeguards concerning accessory conduct, connivance or condonation, along with absence of collusion and improper delay. |
| Section 7, Family Courts Act, 1984 | Where a Family Court has been established for the area, it exercises the relevant matrimonial jurisdiction for proceedings including dissolution of marriage. |
Official texts are available through the Hindu Marriage Act, 1955 on India Code and the Family Courts Act, 1984 on India Code.
Sample affidavit for a divorce petition under Section 13(1)(i)
The following format preserves the substance of the existing sample while making the drafting more neutral and adding statutory points commonly relevant to Section 23. Delete, modify or add paragraphs to match the actual pleadings and local filing rules.
In the Court of the __________ Judge / Family Court at __________
H.M.A. Petition No. __________ of 20__
In the matter of:
______________________________
Petitioner
Versus
______________________________
Respondent
[And, where required by applicable rules or the pleading, ______________________________, Co-respondent]
Affidavit
I, ______________________________, wife/husband of ______________________________, daughter/son of ______________________________, aged about ______ years, presently residing at ______________________________, do hereby solemnly affirm and state as follows:
1. That I am the Petitioner in the accompanying petition under Section 13(1)(i) of the Hindu Marriage Act, 1955 and I am fully acquainted with the facts and circumstances of the case.
2. That I have read and understood the contents of the accompanying petition. The statements made therein are true and correct to my knowledge and belief, and the same may be read as part of this affidavit to the extent permitted by law.
3. That my marriage with the Respondent was solemnised on __________ at __________ according to Hindu rites and ceremonies.
4. That the particulars relating to the parties, their age, status, addresses, the place of marriage, the place where they last resided together and the facts concerning jurisdiction are correctly stated in the accompanying petition.
5. That [no child was born out of the wedlock / the following child or children were born out of the wedlock: ______________________________].
6. That, as set out in detail in the accompanying petition, the Respondent, after solemnisation of the marriage, had voluntary sexual intercourse with a person other than the Petitioner. The material facts and circumstances relied upon are stated in paragraphs ______ to ______ of the petition.
7. That the facts pleaded in support of the ground under Section 13(1)(i) are true to my knowledge and/or based on records and information identified in the petition.
8. That I have not been accessory to, connived at or condoned the act or acts of adultery complained of, except to the extent, if any, specifically disclosed in the accompanying petition.
9. That the petition is not presented or prosecuted in collusion with the Respondent.
10. That there has been no unnecessary or improper delay in instituting the proceeding, save as specifically explained in the petition.
11. That there is no other legal ground known to me that bars the relief claimed in the accompanying petition.
12. That the particulars of previous matrimonial, maintenance, domestic violence, custody, criminal or other proceedings between the parties, if any, have been truthfully disclosed in the accompanying petition.
13. That this affidavit is made in support of the accompanying petition and for such other purpose as may be required by the applicable court rules.
Signed at __________ on this ______ day of __________, 20__.
DEPONENT
Verification
I, the above-named Deponent, verify that the contents of paragraphs 1 to ______ are true to my personal knowledge, the contents of paragraphs ______ to ______ are based on records/information believed by me to be true, and that nothing material has been concealed therefrom.
Verified at __________ on this ______ day of __________, 20__.
DEPONENT
Attestation: To be completed in the form required by the competent Oath Commissioner/Notary/Court and the applicable local rules.
Proof, pleadings and practical drafting
Matrimonial proceedings under the Hindu Marriage Act are civil proceedings. The Supreme Court has explained that the applicable standard is ordinarily the preponderance of probabilities, rather than proof beyond reasonable doubt. The allegation is nevertheless serious, so the facts relied on should be pleaded carefully and supported by legally admissible evidence.
- State material facts, dates, places and circumstances as specifically as the available evidence permits.
- Do not include exaggerated, scandalous or irrelevant allegations merely to strengthen the pleading.
- Identify documentary, electronic or other evidence relied on and comply with the applicable law governing proof and admissibility.
- Check whether local Family Court or High Court rules require a particular affidavit, statement of truth, attestation form or e-filing declaration.
- Where another person is proposed to be named as a co-respondent, first check the applicable High Court or Family Court rules and local practice.
Section 23 safeguards in an adultery-based divorce petition
Section 23 is important because a decree is not granted merely because an allegation has been made. In a petition founded on Section 13(1)(i), the court must consider the statutory conditions governing matrimonial relief, including whether the petitioner was accessory to, connived at or condoned the acts complained of, whether the petition is collusive, whether there has been unnecessary or improper delay, and whether any other legal bar exists.
Frequently asked questions
Can either spouse file for divorce on the ground of adultery?
Yes. Section 13(1) permits a petition by either the husband or the wife where the statutory ground is established.
Is a separate affidavit compulsory in every Hindu Marriage Act divorce case?
Section 20 expressly requires the petition to contain the material facts and to be verified. Whether an additional affidavit or a prescribed affidavit format must accompany the petition can depend on the rules and filing practice of the court concerned.
Where should a divorce petition be filed?
Section 19 of the Hindu Marriage Act sets out the territorial jurisdiction rules. Where a Family Court has been established for the area, the Family Courts Act gives it jurisdiction over proceedings for dissolution of marriage.
Can a divorce petition be filed within one year of marriage?
As a general rule, Section 14 bars a divorce petition before one year has elapsed from the marriage. The court may grant leave in the statutory exceptional circumstances, subject to the applicable rules.