By Proving infidelity in Indian courts has moved beyond witness testimony to digital trails. With the Bharatiya Sakshya Adhiniyam, 2023 replacing the old Evidence Act, WhatsApp chats and GPS logs now demand strict certification for admissibility.
This guide outlines the exact procedural requirements for filing an Affidavit under Section 13(1)(i) of the Hindu Marriage Act, 1955. It includes a compliant legal template and details the mandatory steps to validate electronic records in 2026 litigation.
Affidavit for Dissolution of Marriage on the Ground of Adultery
A procedural breakdown of Section 13(1)(i) HMA 1955. Updated for 2026 procedural rules, DNA protocols, IT Act liabilities, and Bharatiya Sakshya Adhiniyam 2023.
The codification of personal laws in the mid-20th century transitioned the legal understanding of marriage from a purely sacramental bond to one possessing contractual elements. Adultery stands as a historically significant ground for divorce. While the petition forms the skeleton of a legal claim, the Affidavit constitutes its evidentiary soul.
In 2026, drafting this affidavit requires precision. The decriminalization of adultery in 2018 (via Joseph Shine v. UOI) shifted focus to civil consequences. The repeal of the Indian Evidence Act (IEA) in favor of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) revolutionized evidentiary standards. Proving infidelity now mandates strict certification for digital evidence like WhatsApp chats and GPS locations.
The Statutory Construct: Section 13(1)(i)
Originally, adultery was merely a ground for judicial separation. The Marriage Laws (Amendment) Act, 1976 altered this. A single act of infidelity became sufficient to ground a petition for divorce. The modern affidavit must satisfy four distinct legal ingredients:
Core Ingredients for the Affidavit
- Post-Marriage Commission: The act must occur after the solemnization of marriage. Pre-marital relationships do not qualify as adultery under this section.
- Voluntary Nature: The act must be consensual. If the respondent was drugged or coerced, it does not constitute adultery.
- Sexual Intercourse: Indian jurisprudence generally requires proof of penetration. Non-penetrative intimacy usually falls under “Cruelty” (Section 13(1)(ia)).
- Third Party Involvement: The act must be with a person other than the spouse, legally termed the Co-Respondent.
The Litigation Lifecycle
Adultery cases are not decided overnight. Understanding the procedural roadmap is essential for managing expectations. From filing to judgment, a contested divorce typically traverses eight distinct stages.
The Digital Paradox: Virtual Adultery vs. Cruelty
A common pitfall in modern divorce petitions is conflating “sexting” with adultery. Section 13(1)(i) maintains a strict biological standard.
The “Penetration” Rule
Courts have consistently held that virtual sex, sexting, or emotional infidelity does not constitute “Adultery” under Section 13(1)(i) because physical sexual intercourse is absent.
The Strategic Pivot
If evidence is limited to digital chats without proof of physical meeting, the petition should be filed under Section 13(1)(ia) – Cruelty. Alleging adultery without physical proof can lead to dismissal.
The DNA Standard: Privacy vs. Paternity
Modern adultery cases frequently involve DNA testing, especially when the paternity of a child is contested. However, courts tread carefully between truth-seeking and privacy rights.
The Evidence Shift: IEA vs BSA
The methodology of proving adultery has changed. The old Section 65B of the IEA is obsolete. The BSA introduces rigorous standards for digital records under Section 63.
| Feature | Indian Evidence Act (Old) | Bharatiya Sakshya Adhiniyam (New) |
|---|---|---|
| Admissibility | Certificate for secondary evidence. | Certificate mandatory for ALL electronic records. |
| Verification | Signed by person in charge. | Dual signature: Person in charge AND Expert. |
| Integrity | Hash value not mandatory. | Hash value (SHA-256) report required. |
Visual Guide: The Section 63 Certificate
Litigants often struggle to understand what “hashing” means. Under the BSA, a certificate must display the hash value (digital fingerprint) of the file to prove it hasn’t been altered. Below is a representation of what a valid expert certificate appendix looks like:
FILE_SIZE: 14,023 bytes
ALGORITHM: SHA-256
GENERATED_HASH:
e3b0c44298fc1c149afbf4c8996fb92427ae41e4649b934ca495991b7852b855
TIMESTAMP: 2026-02-06 14:30:00 UTC
DEVICE_ID: IMEI 354678091234567
STATUS: VERIFIED
The Spyware Trap: IT Act Violations
WARNING: CRIMINAL LIABILITY
In the zeal to collect evidence, many petitioners install “Stalkerware” or spy apps on their spouse’s phone. While Indian courts *may* admit stolen evidence if relevant, the act of obtaining it can trigger a separate criminal prosecution against you.
- Section 43, IT Act 2000: Unauthorized access to computer resource. Damages up to ₹1 Crore.
- Section 66, IT Act 2000: Hacking with dishonest intention. Imprisonment up to 3 years.
- Risk: The respondent can file an FIR against the petitioner, weakening the divorce case significantly.
The Mediation Mandate (Section 9)
Under Section 9 of the Family Courts Act, 1984, courts are statutorily bound to attempt reconciliation before proceeding to trial. This is not optional.
The Process
After the Respondent files their Written Statement, the file is sent to the Mediation Centre. Parties must attend counseling sessions to explore settlement or “mutual consent divorce.”
The Strategy
If you hold irrefutable proof of adultery, use mediation to negotiate a favorable mutual exit (MCD) rather than enduring a 5-year trial. Adultery evidence is your leverage here.
Jurisdiction Strategy (Section 19)
Filing in the wrong court is a procedural fatality. Under Section 19 of the Hindu Marriage Act, jurisdiction is geographically restricted. You cannot file simply where it is “convenient” for the petitioner (unless the petitioner is the wife and facing hardship, though this is nuanced).
Maintenance & Alimony Implications (BNSS 2023)
Adultery has a direct financial impact. Under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 144 (previously Section 125(4) CrPC), a wife “living in adultery” is disentitled from claiming maintenance.
The Condonation Trap (Section 23)
If, after discovering the adultery, the petitioner continues to cohabit or resumes a sexual relationship with the respondent, the law views this as “Condonation” (forgiveness). The right to divorce on that specific instance of adultery is extinguished. The affidavit must explicitly state that no such condonation has occurred.
The Limitation of Time (Delay)
While the Hindu Marriage Act does not prescribe a strict limitation period (like 3 years) for filing a divorce petition, Section 23(1)(d) prohibits “unnecessary or improper delay.”
If you discover adultery in 2020 but file for divorce in 2026 without a valid explanation (like attempting reconciliation), the court may presume you acquiesced to the act. The affidavit must explain the timeline between discovery and filing to avoid dismissal on grounds of delay.
Strategic Litigation: Cross-Examination
In adultery cases, direct evidence (catching them in the act) is rare. Courts rely on the “Preponderance of Probabilities.” The legal formula for success involves proving two elements simultaneously: Opportunity and Inclination.
The “Hotel Room” Scenario
Fact: Spouse and Co-respondent were alone in a hotel room for 4 hours.
Defense Argument: “We were discussing business.”
Counter-Proof: If the petitioner proves “Inclination” (e.g., romantic emails/texts), the court will presume that two people with romantic inclination, given the opportunity of privacy, committed adultery. Mere presence (Opportunity) is not enough without Inclination.
Drafting the Affidavit
Below is a standard structure for the affidavit. Note the specific clauses regarding non-condonation and digital evidence.
Frequently Asked Questions
Not by itself. In 2026, a WhatsApp chat must be supported by a Section 63 BSA Certificate. This certificate confirms the device source and includes a hash value report to prove the data has not been tampered with. Without this, courts may refuse to read the chats into evidence.
No. Section 13(1)(i) specifically requires the act to happen “after the solemnization of the marriage.” Pre-marital affairs might be grounds for nullity based on fraud, but they are not adultery.
You must file a separate application to “dispense with the co-respondent.” You need to prove to the court that you made due efforts to find the name but failed. Simply leaving the name blank is a procedural defect.
Not automatically. Indian courts distinguish between being a “bad spouse” and a “bad parent.” Unless the adultery directly affects the welfare of the child (e.g., neglect during the affair), it is not a primary ground to deny custody.
