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. Consult with an experienced family lawyer for legal guidance and a solution most suitable to your situation.
This article explains the current law, highlights key Supreme Court rulings, and explores the practical consequences of extramarital relationships in India.
What Does Indian Law Say About Extramarital Affairs in 2026?
The Old Law – Section 497 IPC
Before the Supreme Court’s Judgment in Joseph Shine Vs Union of India, adultery was treated as a criminal offence under Section 497 Indian Panal Code till 2018. The provision only punished 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 provision was challenged before the Supreme Court on constitutional grounds, including equality, non-discrimination and personal liberty.
What Did the Supreme Court Decide in 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, which is now handled under Section 108 of the Bharatiya Nyaya Sanhita, 2023. Further, for armed forces members, adultery can lead to punishment under military laws.
Is Adultery a Criminal Offence Under the Bharatiya Nyaya Sanhita (BNS), 2023?
When the Bharatiya Nyaya Sanhita (BNS), 2023, was introduced, adultery was not included as a criminal offence.
Basically, Bharatiya Nyaya Sanhita (BNS), 2023, replaced the IPC from July 1, 2024.
This means:
- According to Indian criminal law, Extramarital affairs are not punishable with imprisonment
- Only based on Adultery, no spouse can file a criminal complaint
- Adultery continues to have significant consequences under family and matrimonial laws.
- If the conduct is linked to offences such as abetment of suicide, domestic violence, harassment, or other punishable acts, then Criminal liability may still arise
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 13(1)(ia), Hindu Marriage Act, 1955
A partner can consider mental cruelty as a ground for divorce in case of extramarital affairs. Under Section 13(1)(ia) of the Hindu Marriage Act, if a spouse’s extramarital affair causes deep trauma to the other partner, then 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, then she is disqualified from claiming maintenance from her husband under Section 144(4) of the BNSS.
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 to Do If You Discover Your Partner Having an Affair?
1. Collect all the evidence: You can try to collect evidence that can prove to the court the affair of your spouse. Don’t alter, delete, or edit, as courts scrutinise tampered material harshly.
2. Don’t confront publicly or threaten: Don’t make any impulsive move; public shaming or threatening, as the other side can be used against you; they can claim mental issues or a cruelty claim.
3. Get legal advice before collecting more evidence: First consult with a lawyer on legal options available for you, and on how you can prove to the court about the affair, as it is legally unauthorized access to someone’s personal device even if the underlying suspicion is correct.
4. Decide your actual objective first: Decide what you want is it divorce, judicial separation, a maintenance claim, or a custody arrangement? Each call will need different strategy; don’t gather evidence generically and figure out the goal later.
5. If children are involved, document parenting and stability, not just the affair: Custody outcomes turn on the child’s welfare, not on proving fault.
What Are The Evidences That Court Considers To Prove Extra Marital Affairs In India?
Digital Proof
In the modern age of WhatsApp chats, call history, and emails, evidence will now be admissible in family courts regardless of whether it was obtained while other parties remained 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.
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.
Can Extramarital Affairs in India Be Grounds for Divorce?
While adultery is no longer a criminal offence, it is still one of the most cited grounds for divorce under Indian matrimonial laws
However, not every case involving an affair results in a contested divorce. In situations where both spouses agree to end the marriage amicably, Mutual Divorce in India may offer a faster and less stressful legal solution.
Under the Hindu Marriage Act, 1955
Section 13(1) of the Hindu Marriage Act allows a spouse to seek divorce if the other spouse has voluntarily engaged in sexual relations outside the marriage.
Under the Special Marriage Act, 1954
After the solemnisation of marriage, a spouse can file for divorce on the grounds of adultery committed by the other party.
What proof is required?
- Hotel bookings
- Travel records
- Photographs and videos
- WhatsApp chats and emails
- Call records
- Witness testimonies
- Financial transactions indicating a relationship
Can a single affair be considered as a divorce?
Yes, if the court is satisfied that adultery has been committed, a single act proved may be enough to grant a divorce.
Once adultery is established before the court, the next step is initiating divorce proceedings. Our Divorce Process in Bangalore explains each stage of the legal process, from filing the petition to obtaining the final decree.
What You Should Know Before Taking Action Against Extramarital Affairs In India?
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.
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