Is Adultery A Criminal Offence In India? Here's What The Law Says

Introduction

Is your spouse involved in extramarital affair? Or your spouse is cheating you since so long? You are confused about whether adultery is criminal offense or not or it is just a ground of divorce? These are frequently doubts of people as law on adultery have changed in recent years.

In India today, adultery is no more a criminal offence, but it is still a ground of divorce and have adverse effect in matrimonial disputes. It can also escalate the issue of maintenance and child custody depending on the facts of case. It is essential to understand the current position of adultery before taking any legal action.

What is Adultery?

When a married person in voluntary sexually involved with other person, other than his or her spouse, this relationship is termed as adultery. It means that an individual is engaged in intimate relationship outside his or her marriage by hiding this fact from the spouse. Adultery breaches the trust of person and can even affect the relationship between families. Although it is not treated as criminal offence, but still legal option are available.

Is Adultery a Criminal Offence in India?

No. Adultery is not a criminal offence in India. Earlier, adultery was punishable under Section 497 of the Indian Penal Code, 1860, which made it a criminal offence for a man to have sexual relations with a married woman without the consent or connivance of her husband.

In India adultery is not a criminal offence. This offense was previously defined and punishable under Section 497 of the Indian Penal Code, 1860.This provision made adultery a criminal offense for man who have sexual relation with other women without the consent of her wife.

Later, in 2018 Section 497 of the Indian Penal Code, 1860 was declared unconstitutional by Supreme Court of India in landmark judgement of Joseph Shine v. Union of India 2018. Today:

• No person can be arrested merely for committing adultery.

• No criminal prosecution can be initiated solely for adultery.

• The Bharatiya Nyaya Sanhita, 2023 also does not make adultery a criminal offence.

• However, adultery continues to have important civil consequences, particularly in matrimonial disputes.

History of adultery law in India

Before 2018, adultery was governed by Section 497 of the Indian Penal Code, 1860. Under this provision:

• Only a man who had sexual relations with a married woman without her husband's consent could be punished.

• The married woman was not treated as an offender, even if she willingly participated.

• Only the husband of the married woman could file a criminal complaint.

• A wife could not prosecute her husband for adultery.

This provision was widely criticised because it treated women as the property of their husbands and discriminated on the basis of gender.

The law remained in force for over 150 years until it was struck down by the Supreme Court in 2018.

Why was Section 497 IPC Struck Down?

The Supreme Court found that Section 497 violated several constitutional principles. The Court observed that the provision:

• Treated women as inferior to men.

• Violated the right to equality.

• Violated the right to dignity.

• Interfered with personal autonomy.

• Was based on outdated patriarchal notions of marriage.

The Court held that although adultery may amount to a matrimonial wrong, it should not be treated as a criminal offence punishable with imprisonment.

Landmark Judgment – Joseph Shine v. Union of India

Facts  In this case Joseph Shine, who was an Indian citizen, challenged the legality and constitutional validity of Section 497 of the Indian Penal Code. He claimed that this provision of law violates the constitutional rights guaranteed under Articles 14, 15, and 21 of the Constitution of India because Section 497 punishes only man and treated women as incapable of making their own choices.

Judgment A Constitution Bench of the Supreme Court collectively declared Section 497 IPC as unconstitutional. The Court held that:

• Adultery is not a criminal offence.

• Marriage does not take away an individual's dignity or personal autonomy.

• Women cannot be treated as the property of their husbands.

• Criminal law should not be used to punish private consensual relationships between adults.

But, the Supreme Court stated that adultery will still remain the valid ground ground of divorce under personal law.

Importance This ruling changed the law of adultery as whole. Basically, it decriminalized the law of adultery while stating that is still have civil consequences in matrimonial disputes. This decision made put a major step in promoting and protecting gender equality and individual liberty.

Is Adultery Still a Ground for Divorce?

Yes. Although adultery is no longer a criminal offence, it continues to be a valid ground for divorce under several personal laws.

Under the Hindu Marriage Act, 1955 A spouse may seek divorce if the other spouse has voluntarily engaged in sexual intercourse with a person other than his or her spouse after the marriage.

Under the Special Marriage Act, 1954 Adultery is also recognised as one of the grounds on which a spouse may seek dissolution of marriage.

Under Other Personal Laws Different personal laws governing marriage and divorce may also recognise adultery as a matrimonial ground, subject to their respective statutory provisions and judicial interpretation.

Therefore, while adultery does not result in criminal punishment, it may significantly affect matrimonial rights.

Can Adultery Affect Maintenance?

Yes, adultery may influence maintenance claims in certain situations, although the outcome depends on the facts of each case and the applicable law. Courts generally examine:

• Whether adultery has been legally proved.

• The conduct of the parties.

• The applicable personal law.

• The financial condition of both spouses.

• Other surrounding circumstances.

For instance:

1. Under Section 125 of the Code of Criminal Procedure, 1973 (now substantially reflected under Section 144 Bharatiya Nagarik Suraksha Sanhita, 2023), certain provisions may affect a wife's entitlement to maintenance if she is living in adultery, subject to proof and judicial determination.

2. Under matrimonial laws, courts consider the overall facts before deciding maintenance, and adultery alone does not automatically determine the outcome in every case.

Every maintenance case is decided on its own facts and applicable legal provisions.

What is the difference between criminal liability and civil consequences?

Many people confuse criminal liability with civil consequences.

Understanding this distinction helps individuals choose the appropriate legal remedy instead of pursuing criminal proceedings that are no longer maintainable.

How do courts treat adultery in divorce cases?

Although adultery is no longer a criminal offence, it remains an important factor in matrimonial disputes. Family Courts carefully examine the facts and evidence before granting a divorce on the ground of adultery. Courts generally consider:

• Whether there is sufficient evidence to prove adultery.

• The conduct of both spouses.

• Whether the marriage has irretrievably broken down (where relevant).

• The circumstances surrounding the alleged relationship.

• The impact of the conduct on the marital relationship.

Since adultery usually takes place in private, direct evidence may not always be available. Therefore, courts may also rely on convincing circumstantial evidence.

It is important to note that mere suspicion, rumours, or allegations are not enough. The spouse making the allegation must present reliable evidence before the court.

What evidence is required to prove adultery?

Adultery is a question of fact and must be proved through credible evidence. Depending on the circumstances, courts may consider:

• Hotel booking records.

• Photographs or videos.

• Electronic communications such as emails or messages.

• Social media records.

• Call records, where legally obtained and admissible.

• Witness testimony.

• Financial transactions indicating the relationship.

• Other circumstantial evidence showing an intimate relationship.

However, the evidence must be collected lawfully. Illegally obtained evidence may not be accepted by the court and may create separate legal issues.

What are the rights of husband and wife in cases of adultery?

Both spouses have legal rights under Indian matrimonial laws.

Rights of the Aggrieved Spouse

• File a petition for divorce where adultery is recognised as a ground.

• Seek maintenance or contest maintenance, depending on the facts and applicable law.

• Claim child custody or visitation rights, subject to the welfare of the child.

• Seek appropriate relief regarding matrimonial property where applicable.

• Present evidence before the Family Court.

Rights of the Other Spouse

• Receive a fair opportunity to defend the allegations.

• Challenge the evidence presented.

• Be represented by a lawyer.

• Present witnesses and documentary evidence.

• Receive a fair hearing before any matrimonial relief is granted.

Both parties are entitled to a fair trial, and the court decides the case based on the evidence produced.

What legal remedies are available to an aggrieved spouse?

If a spouse believes that adultery has affected the marriage, several civil remedies may be available. These include:

1. Divorce Petition A spouse may file for divorce under the applicable personal law if adultery is recognised as a statutory ground.

2. Judicial Separation Instead of seeking immediate divorce, a spouse may apply for judicial separation, allowing the parties to live separately while remaining legally married.

3. Maintenance Proceedings Depending on the facts, either spouse may seek or contest maintenance before the competent court.

4. Child Custody Proceedings Where children are involved, the court decides custody based on the best interests and welfare of the child, not merely on allegations of adultery.

5. Mediation or Settlement Family Courts often encourage mediation and settlement wherever there is a possibility of resolving matrimonial disputes amicably.

How Lead India can help you?

Our legal team can assist you by:

1. Advising on your legal rights in matrimonial disputes.

2. Filing or defending divorce petitions based on adultery.

3. Representing clients before the Family Court.

4. Assisting in maintenance and child custody matters.

5. Helping collect and present legally admissible evidence.

6. Providing legal advice on settlement and mediation.

7. Protecting your legal rights throughout matrimonial proceedings.

Practical legal tips for Aggrieved Spouse

• Do not assume that adultery is a criminal offence or try to file a criminal case solely on that basis.

• Avoid making false allegations of adultery without reliable evidence, as this may weaken your case.

• Preserve relevant documents, messages, photographs, or other lawful evidence if you intend to rely on adultery in court.

• Do not obtain evidence through illegal means, such as unauthorised access to private accounts or devices.

• Consider mediation if there is a possibility of resolving the dispute peacefully.
  If children are involved, always prioritise their welfare over personal disputes.

• Consult an experienced family lawyer before initiating divorce or maintenance proceedings.

• Understand your rights under the applicable personal law before taking legal action.

Conclusion

The legal position in India is now clear—adultery is no longer a criminal offence. Following the landmark decision in Joseph Shine v. Union of India, no person can be prosecuted or imprisoned merely for engaging in an extramarital relationship. However, adultery continues to have significant civil consequences, particularly in matters relating to divorce, maintenance, and matrimonial disputes. If you believe adultery has affected your marriage, it is important to understand your legal rights, gather lawful evidence, and seek appropriate legal advice before taking any action. Choosing the correct legal remedy can help protect your interests while ensuring that the matter is resolved through the proper legal process.