If you are stuck in such a situation, here is what to do.

Recently, a legal discussion brought up a thought-provoking question about the validity and acceptance of ‘open marriages’ in the Indian legal framework. This concept, where spouses mutually agree to engage in relationships outside their marriage, challenges the very foundation of matrimonial laws in the country. Imagine a scenario where Anjali and Sameer, married for five years, find themselves at a crossroads. Sameer, influenced by modern relationship trends, suggests an open marriage. Anjali is taken aback, as she considers marriage an exclusive and sacred bond. She is now grappling with the legal, ethical, and moral implications of such a proposal. She wonders about the impact on potential inheritance, the legal standing of such an arrangement, and what her rights would be if she were to disagree. This situation raises critical questions about consent, fidelity, and the definition of marriage under Indian law.

Advice in such cases

Navigating such a sensitive and legally complex issue requires a careful and informed approach. If you find yourself in a similar situation, here are some steps to consider:

• Open Communication: Have a clear and honest conversation with your spouse about your feelings, boundaries, and understanding of the marital commitment. Understanding each other’s perspectives is the first step, even if you disagree.
• Understand the Legal Reality: It is crucial to know that Indian law does not recognize open marriages. The legal definition of marriage across all personal laws is based on the principle of fidelity and exclusivity. Any agreement to the contrary holds no legal sanctity.
• Do Not Consent Under Pressure: Never agree to any arrangement that makes you uncomfortable or goes against your values due to emotional pressure or coercion. Such consent can be legally challenged later as having been obtained under duress or leading to mental cruelty.
• Prioritize Financial Security: Ensure you have a clear understanding of your financial rights, including maintenance and share in matrimonial property, irrespective of the nature of your relationship.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The concept of an open marriage directly conflicts with several fundamental tenets of Indian matrimonial and succession laws.

• The Hindu Marriage Act, 1955 & Special Marriage Act, 1954: Both these acts, which govern the majority of marriages in India, consider adultery as a primary ground for divorce. Adultery is defined as voluntary sexual intercourse by a married person with someone other than their spouse. Any “agreement” for an open marriage does not negate this provision.
• Concept of Bigamy: While an open marriage isn’t the same as bigamy (the act of marrying another person while still being lawfully married), engaging in relationships that mimic marriage can lead to legal complications, especially concerning the legitimacy and inheritance rights of any children born from such relationships.
• Grounds for Divorce: Besides adultery, engaging in extramarital relationships can be considered an act of mental cruelty towards the non-consenting spouse, which is also a valid ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act.
• Bharatiya Nyaya Sanhita, 2023 (BNS): While the BNS, which replaces the Indian Penal Code, has not re-criminalized adultery in the same manner as the old law, the act of adultery remains a significant moral and civil wrong. It continues to be one of the strongest grounds for seeking a divorce in a family court.
• Indian Succession Laws: Laws like the Hindu Succession Act, 1956, have clear provisions for inheritance based on legitimate marital relationships. Children born outside the wedlock have limited rights, and an open marriage arrangement can create immense confusion and legal disputes over property and succession.

If you are the complainant

If your spouse is engaging in extramarital relationships, with or without your consent, and you wish to take legal action, you are the complainant in this civil matter. Here is what you can do:

• File for Divorce: You can file a petition for divorce on the grounds of adultery. Your spouse’s relationship with another person, even if part of a so-called “open marriage” agreement, constitutes adultery in the eyes of the law.
• Claim Mental Cruelty: The emotional and mental distress caused by your spouse’s actions can be grounds for divorce under ‘cruelty’. The expectation of fidelity is inherent in a marriage, and its violation can be deeply traumatic.
• Gather Evidence: Collect any proof of your spouse’s infidelity. This could include digital communications, photographs, or witness testimonies that establish the extramarital relationship.
• Seek Maintenance: You are entitled to claim maintenance from your spouse during and after the divorce proceedings, as per the law.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

You may be considered a victim even if you initially consented to an open marriage but later found the situation to be coercive, emotionally damaging, or exploitative. Your initial consent does not waive your legal rights.

• Revoke Your Consent: You have the right to withdraw your consent to such an arrangement at any time. Clearly communicate to your spouse that you no longer agree to the open marriage.
• Document Everything: Keep a record of communications where you express your discomfort or withdrawal of consent. This can be crucial evidence if you later claim mental cruelty.
• Seek Psychological Support: The emotional toll of such situations can be immense. Seeking counseling or therapy can provide you with the support needed to navigate this difficult period.
• Legal Recourse: Even with initial consent, if your spouse continues with extramarital relationships after you’ve objected, you can file for divorce on grounds of adultery and/or cruelty. The law will prioritize the sanctity of the marriage over any informal agreement.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Matters related to open marriages, adultery, and divorce are primarily civil in nature and are handled by Family Courts, not the police. The police will generally not intervene unless there is an element of a criminal offense involved. Police involvement would only occur if there are associated complaints of:

• Domestic Violence: If the disagreement over the open marriage leads to any form of physical, emotional, or economic abuse.
• Criminal Intimidation or Threats: If your spouse threatens you with harm for not agreeing to their terms.
• Dowry Harassment or Cruelty: If the situation is linked to other forms of marital cruelty that are criminal in nature.

In most cases, the police will advise the parties to approach the Family Court to resolve their matrimonial dispute.

FAQs people normally have

• Is an agreement for an open marriage legally valid in India?
  No. Any agreement, written or verbal, that permits extramarital relationships is considered against public policy and the principles of Indian marriage laws. It is not legally enforceable and has no validity in court.
• If I agree to an open marriage, can I still get a divorce for adultery?
  Yes. Your consent to an open marriage does not legalize adultery. You can withdraw your consent at any point and file for divorce on the grounds of adultery. The court will uphold the legal requirement of fidelity in a marriage over any private agreement.
• What are the inheritance rights of a child born from an extramarital relationship in an open marriage?
  This is a legally complex area. While the law grants inheritance rights to children, the rights of children born outside of a lawful marriage are complicated and can be limited, especially concerning ancestral property under Hindu law. Such situations can lead to protracted legal battles over succession.

What evidence is required?

If you are seeking a divorce on the grounds of adultery, the burden of proof is on you. Since direct evidence is often difficult to obtain, courts generally rely on circumstantial evidence. Required evidence can include:

• Electronic Evidence: Text messages, emails, call records, social media interactions, or photographs that suggest an intimate relationship.
• Witness Testimony: Statements from friends, family, or other individuals who have knowledge of the extramarital affair.
• Circumstantial Evidence: Proof of the spouse and another person being together in compromising situations, hotel records, or travel itineraries.
• Admission: Any admission of the affair by the spouse, whether made to you or to a third party.

How long will the investigation take?

It is important to clarify that this is not a criminal “investigation” conducted by the police. It is a judicial proceeding in a Family Court. The duration of a divorce case on the grounds of adultery can vary significantly. A contested divorce, where the other party disputes the allegations, can take anywhere from 2 to 5 years, or even longer, depending on the complexity of the case, the evidence presented, and the caseload of the court.

Advocate Sudhir Rao, Supreme Court of India