The traditional concept of ADULTERY involves sexual relations between a SPOUSE and a person of another GENDER.
However, this definition has been changed in Canada in 2005 based on the Case Study 2 given below.
The WIFE is advised to file a case under Cruelty, Deception, Abandonment, and Adultery. Since homosexuality is a crime in India, that issue can be brought up.
So, tell me, do ‘same gender sexual relations’ amount to adultery? Any comments?
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Case Study 1:INDIA
Wife moves Delhi court after finding husband is gay
25 Jan 2009
NEW DELHI: Like every newly wed, Radha (name changed) too had visions of leading a happily married life. But in just a few months, her dreams were shattered when she found out that her husband was having an affair with his best friend – a man.
When she confronted him, her husband Rahul (name changed) refused to break his relationship and instead shunned her.
A heartbroken Radha went back to her parent’s house, where she gave birth to a girl. She was married in 2004.
Thinking that the birth of the child would change things between them, Radha met her husband for a reconciliation. But Rahul, who is in his late 20s, refused to accept her and the child. Seeing their daughter, he said: “I hate girls.”
Now, Radha is fighting a case against her husband for alimony and hopes for an early relief.
A city court will hear her plea next month.
In her petition, she said that she married Rahul in 2004 and they were living happily for some time. But she soon realized that her husband was not showing any interest in her and used to enjoy the company of his friend Imran (name changed).
When she complained to Rahul about this, he told her bluntly that he doesn’t like women and asked Radha not to interfere in his life.
When she objected to Imran’s presence in the house, Rahul thrashed her and threw her out. Radha was pregnant at the time.
Radha went to her father’s house and started living there and gave birth to a girl.
Fed up with her husband’s behaviour, Radha filed a complaint against her husband in 2008 asking for maintenance.
Hoping for a patch-up between the two, the court last year referred the case to the mediation centre, which aims to counsel couples so that the case can be settled out of court.
The counsellors at the centre, however, came to the conclusion that the couple could not live together and transferred the case to the family court on her plea as Rahul refused to accept Radha and the child and turned down the offer to pay her monthly allowance and end his relationship with Imran.
Rahul and his elder brother were in a business together, but Rahul quit and started a small business with Imran.
Case Study 2: Supreme Court amends definition of adultery in Canada
2005
A B.C. Supreme Court judge granted a Vancouver woman a divorce Tuesday after deciding that the woman’s husband had indeed engaged in adultery when he had sex with another man.
The traditional definition of adultery is voluntary sex between a spouse and someone of the opposite gender, to whom he or she isn’t married.
But Justice Nicole Garson of the B.C. Supreme Court said Tuesday that she had been persuaded to make a change in the traditional definition of adultery.
The woman, who can be identified only as Ms. P due to a court order, was challenging Canada’s divorce legislation after Garson earlier ruled that her husband’s extramarital affair with a man didn’t legally count as adultery.
The woman had been married nearly 17 years when, last October, she discovered her husband was having an affair with a younger man.
She and her husband separated immediately and she filed for divorce two months later, seeking an immediate end to their marriage.
Her husband signed an affidavit on Jan. 5, 2005, acknowledging his adulterous relationship, and didn’t appear in court in February to contest the divorce.
Canada’s Divorce Act allows for a no-fault divorce after a one-year separation, on grounds of marital breakdown. It also allows for an immediate divorce if there is admitted or proven adultery or cruelty.
But Garson refused to grant an immediate divorce — because the definition of adultery in common law didn’t include homosexual relations.
“I was completely devastated and I felt like I didn’t matter,” Ms. P told CTV’s Canada AM.
The judge told the woman last Friday that she would hear the case again if a lawyer could argue why the legal definition of adultery should be broadened to include same-sex adultery.
The woman’s lawyer, barbara findlay (who spells her name in lower-case letters), argued that the traditional definition of adultery is as outdated as the original common-law definition of marriage, which was based on procreation.
“We argued, and the federal government agreed with us, that the court can make what is called in law an incremental change in light of current circumstances,” said findlay, “so that divorce will, from now on, be understood to be available where there is, for example, intimate genital contact between two people, one of whom is married.”
Garson’s decision is expected to have far-reaching consequences across Canada, said findlay, because of the increasing number of same-sex marriages that will inevitably lead to same-sex affairs.
She added that, because adultery isn’t defined through federal legislation, judges hearing similar cases in other provinces will likely be persuaded by the B.C. judge’s decision.
“I would expect that other judges faced with the same question would rule in the same way,” findlay told CTV.
The Divorce Act falls under federal jurisdiction, but it’s administered provincially.
The woman said she realizes her divorce may not come any more quickly through this legal challenge than if she had simply waited the requisite one year and obtained a no-fault divorce. But she said she was doing it to help others who find themselves in the position she did.
“I did it for myself, to regain some control over my life,” Ms. P told CTV. “I also did it because I know that there are a lot of people [in the same situation] who aren’t in a position to do anything about it, and I was, so I thought I should act.”
The woman has also launched a constitutional challenge based on the Charter, saying the definition of adultery discriminates against gay and lesbian couples because it makes divorce less accessible to them compared to homosexuals.
