Extramarital Affairs in India: Here's The Legal Consequences You Will Face
Extramarital affairs in India are not a new phenomenon, but the law has evolved significantly in how it deals with them. In earlier times, adultery was a criminal offence, and a person found guilty could face imprisonment.
Today, adultery is no longer a crime, but that does not mean it is without legal and personal consequences. An affair can impact your marriage, divorce proceedings, financial rights, and even child custody.
This article explains the current law, highlights key Supreme Court rulings, and explores the practical consequences of extramarital relationships in India.
From Crime to Civil Matter: How the Law Changed
The Old Law – Section 497 IPC
Until 2018, adultery was a criminal offence under Section 497 IPC. This law was unfair and a relic of the past.
It penalized only the male who participated in the affair, not the female, and only a husband was permitted to bring a charge of adultery. This was a clear representation of the old paradigm that a wife was the “property” of her husband.
The Landmark Judgment – Joseph Shine v. Union of India (2018)
In the year 2018, the Supreme Court overturned centuries of history. The Supreme Court in the Joseph Shine case stated:
- Section 497 was invalid because it violated equality (Article 14), non-discrimination (Article 15), and rights to personal liberty (Article 21) guaranteed by the Constitution.
- Adultery is no longer a crime.
- However, it continues to be a ground for divorce in family law.
The Court also clarified that if an affair drives a spouse to take their own life, the person involved in the affair can still be prosecuted for abetment of suicide under Section 306 IPC. Further, for armed forces members, adultery can lead to punishment under military laws.
What Are The Civil Law Consequences of Extramarital Affairs in India?
You Can Apply For Divorce
Under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, adultery is still a legitimate ground for divorce.
The spouse seeking to end the marriage must show that their spouse engaged in a sexual affair.
Mental Cruelty – Section 498A IPC
Although adultery itself is not a crime, courts recognize that one spouse’s affair can rise to the level of “mental cruelty”.
Thus, the betrayed spouse can use this as evidence that it is no longer possible for them to live in the same house as their spouse.
Alimony and Maintenance
Suppose a spouse is found to have committed adultery. In that case, courts may reduce or even deny alimony or maintenance, as per the principles of how alimony is calculated in India, which also consider factors like income, duration of marriage, and standard of living.
For instance, if a wife were guilty of adultery, the husband might not have to pay her maintenance under Section 125 of the Criminal Procedure Code.
Child Custody
In child custody cases in India, the court’s main concern is the welfare of the child, and a father’s affair could influence custody decisions if evidence shows a negative impact on the child’s well-being.
What Are The Evidences Court Considers To Prove Extra Marital Affairs?
Digital Proof
In the modern age of WhatsApp chats, call history, and emails, now evidence, family courts will take this evidence regardless of whether it was obtained through other parties staying unaware of its obtaining, under Section 14 of the Family Courts Act, 1984.
False Accusations
In a Chhattisgarh High Court, it was held that bringing allegations against a spouse’s character without evidence is also mental cruelty. Therefore, allegations of adultery must be supported by evidence.
Criminal Cases Linked to Affairs
Adultery itself is not a crime, but affairs can now sometimes be the basis of criminal proceedings. For example, when jealousy or revenge arises, there are cases of assault and murder, and non-marital acts that are punished severely by the Courts.
If you are based in Bangalore, Hyderabad, Mumbai, Chennai & Delhi, Kamal & Co. Advocates offers guided legal solutions with extra-marital affair cases. You can reach out to respective advocates below –
Society vs. Law: A Battle Faced by Victim of Extramarital Affairs
Social Stigma
Even though the law no longer punishes adultery through jail time, the act of unfair and dishonourable behaviour is still regarded negatively by the society in which we live, and separating one’s family and damaging one’s reputation is damaging.
Live-in Relationships vs. Affairs
The court draws a firm distinction between an extramarital affair, where one or both partners may already be legally married, and a live-in relationship, which involves non-married persons, which is ordinarily afforded some protection under the Domestic Violence Act.
Our Experts Opinions on Extra Marital Affairs in India
Many legal commentators and practicing lawyers are like-minded in their support of the Joseph Shine decision as an improvement to the law, and as an indication that law continues to evolve with modernity and fair application.
Legal commentators do note, however, that decriminalized does not mean consequence-free. An affair can influence your financial consequences, emotional well-being, or future relationships.
Conclusion
In India, extramarital affairs are no longer subject to criminal punishment, but they can also influence your life irrevocably. An extramarital affair can be a strong ground for divorce, can influence whether there will be a change in your alimony payments and marital custody, and can also be used to argue for bad faith as mental cruelty.
If you are in the middle of this kind of situation, be it as the subject of a claim, on the receiving end of a claim, or negotiating a settlement, you should seek guidance from a professional with legal expertise.
Kamal & Co. Advocates has representation in Bangalore, Delhi, Chennai, Mumbai, and Hyderabad and has successfully brought forward family and criminal law cases for over 30 years in the High Courts and the Supreme Court of India, from the simplest of cases to highly involved and complex ones. We understand that the issues of your matter are both practical and emotional, and we will support you through the entire process.
