The legal status of extra-marital affairs in India changed fundamentally in 2018. The Supreme Court unanimously struck down Section 497 of the Indian Penal Code – the 158-year-old colonial adultery law – in Joseph Shine v. Union of India. Since then, having an extra-marital affair is not a criminal offence in India. However, “not criminal” does not mean “without consequences” – adultery remains a ground for divorce and can significantly impact alimony, custody, and marital property decisions in family courts.
Joseph Shine v. Union of India (2018): The Landmark Ruling
Section 497 of the IPC made adultery a criminal offence punishable with up to 5 years imprisonment. Crucially, it was extraordinarily discriminatory: only a man could be punished (not the married woman in the affair); and only the husband of the woman had the right to file a complaint (not the wife of the man, and not the woman herself).
A five-judge Constitution Bench unanimously struck down Section 497 in September 2018, holding it violated Articles 14 (equality), 15 (non-discrimination), and 21 (personal liberty) of the Constitution. Chief Justice Dipak Misra stated: “Adultery cannot be a criminal offence, however it can be a ground for civil issues like divorce.” The Court recognised that treating women as their husbands’ property was unconstitutional, and that the state should not criminalise private consensual adult relationships.
The BNS (Bharatiya Nyaya Sanhita), 2023, which replaced the IPC effective July 2024, does not include any adultery provision, formally and legislatively confirming that extra-marital affairs are not criminal offences in India. The BNS’s omission of adultery is consistent with the 2018 constitutional ruling.
What “Not Criminal” Actually Means
Decriminalisation means you cannot be arrested, prosecuted, or imprisoned solely for having an extra-marital affair. There are no criminal penalties. The state does not interfere in private consensual adult relationships. However, as Chief Justice Misra emphasised, decriminalisation does not mean legalisation in a broader social or civil sense.
An extra-marital affair remains a valid ground for divorce under personal laws. It is not the same as social or moral acceptance – Indian society continues to view adultery as a serious breach of marital trust. And in family courts, evidence of an extra-marital affair can significantly influence divorce proceedings, maintenance, and custody.
Consequences in Family/Civil Law
Divorce: Extra-marital affairs (adultery) remain an explicit ground for divorce under major personal laws. The Hindu Marriage Act, 1955, Section 13(1)(i): “voluntary sexual intercourse with any person other than their spouse” is a ground for divorce. The Indian Divorce Act, 1869 (Christians); the Special Marriage Act, 1954; and other personal laws similarly list adultery as divorce grounds.
Maintenance/Alimony: Courts can reduce or deny maintenance/alimony to a spouse who committed adultery. Under Section 125 BNSS (previously CrPC), a wife who is living in adultery forfeits her right to maintenance from her husband. Courts examine evidence of the affair when determining whether and how much maintenance to award.
Child Custody: While adultery itself is not a disqualification from parenting, courts consider the impact of an affair on the children’s welfare and family stability. An affair that exposed children to instability or inappropriate relationships can be a factor in custody determinations, with the child’s best interests always the paramount consideration.
Mental Cruelty: Courts have consistently recognised that an extra-marital affair can constitute mental cruelty, strengthening divorce petitions on cruelty grounds. The High Courts in Punjab, Haryana, and Madras have held that a love affair outside marriage causing distress and humiliation to the spouse is grounds for divorce on cruelty.
Special Circumstances and Remaining Criminal Liability
While adultery itself is not criminal, certain related circumstances can create criminal liability. If an extra-marital affair drives the spouse to suicide, the person having the affair may be prosecuted for abetment of suicide under BNS Section 108. For armed forces personnel, adultery can result in disciplinary action under the Army Act and Naval Act even without criminal prosecution. Additionally, if a married person makes false promises of marriage to induce another person into a relationship, charges under other BNS provisions may apply.
Final Thought
Having an extra-marital affair in India is not a criminal offence since the 2018 Joseph Shine judgment struck down Section 497 IPC, a ruling confirmed by the BNS 2023’s omission of adultery as a crime. You cannot be arrested or jailed simply for an affair. However, the civil consequences are real and significant: it is a strong ground for divorce, can eliminate your maintenance entitlement, may influence custody decisions, and can be characterised as mental cruelty. Beyond the law, the social and personal consequences of extra-marital affairs in Indian society – on families, children, and community relationships – remain profound. The law has moved to respect personal autonomy; it has not endorsed infidelity as socially acceptable.
Frequently Asked Questions (FAQs)
Q1. Can my spouse file a criminal complaint against me for having an affair?
No. Since the Supreme Court struck down Section 497 IPC in Joseph Shine v. Union of India (2018), adultery is not a criminal offence. Your spouse cannot have you arrested or criminally prosecuted solely for an extra-marital affair. The BNS 2023 does not contain any adultery criminal provision. Your spouse’s legal remedies are civil: filing for divorce on grounds of adultery, seeking enhanced maintenance or reduced alimony, and using the affair as evidence of mental cruelty.
Q2. Can I divorce my spouse for having an extra-marital affair?
Yes. Adultery (voluntary sexual intercourse with any person other than their spouse) is an explicit ground for divorce under the Hindu Marriage Act (Section 13), the Indian Divorce Act (Christians), the Parsi Marriage Act, and the Special Marriage Act. You must prove the affair with evidence – direct evidence (confessions, eyewitness) or circumstantial evidence (messages, photographs, hotel records, call logs, DNA testing in cases involving children). Digital evidence is admissible in Family Courts.
Q3. If I am having an affair, will I lose my right to maintenance?
Potentially yes. Under Section 125 BNSS, a wife who is living in adultery at the time of the maintenance application is not entitled to maintenance from her husband. Courts also consider adultery evidence when deciding maintenance amounts for husbands claiming maintenance. The effect on maintenance depends on the specific circumstances, timing, and evidence presented. Consult a family lawyer in your jurisdiction to assess how evidence of an affair would affect your maintenance rights.
Q4. Is emotional infidelity (no physical relationship) considered adultery under Indian law?
No. Adultery under Indian law requires voluntary sexual intercourse outside marriage. Emotional affairs – falling in love with someone, romantic communication, emotional intimacy without physical relations – do not constitute adultery as a legal concept. However, a persistent emotional affair causing severe mental distress, humiliation, and anguish to a spouse can be grounds for divorce on mental cruelty, which has been recognised by multiple High Courts as independent grounds for divorce separate from adultery.
Q5. Can the person my spouse is having an affair with be sued?
Not criminally – the Joseph Shine judgment ended the option of criminal prosecution for the third party in an affair. No civil “alienation of affections” lawsuit exists in Indian family law. The spouse’s remedies are against their own partner through divorce proceedings. However, if the third party made fraudulent promises of marriage or used deceptive means, other civil remedies may exist. Evidence of the affair can be used in divorce proceedings and can influence maintenance and property division even though the third party cannot be directly sued.
