INTRODUCTION
Before the legal bond marriage, an individual is free to choose and engage in romantic relationships, and such relationships, whether serious or casual, are not prohibited by law. Personal choices made during this period do not invite legal interference. However, marriage changes this legal perspective. Once married, a person is legally and morally bound to remain faithful to their partner. Any intimate relationship with another person during the sustenance of marriage is treated as adultery. Such conduct is viewed as unlawful and goes against the legal and social obligations arising from marriage.[1]
ADULTERY
Section 497 of The Indian Penal Code – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”[2]
Under the former Section 497 of the Indian Penal Code, adultery was defined narrowly. The provision did not treat the woman as an offender and imposed criminal liability only on the man involved. It applied solely in cases where a married woman had sexual relations with a man other than her husband. It therefore did not cover situations where a married man had relations with an unmarried woman. Further, no offence was said to be committed if the act took place with the consent or connivance of the woman’s husband. The law allowed only the husband of a married woman to file a complaint. No other person was permitted to start legal proceedings, which makes access to justice very limited.[3]
The act mainly involves violating the exclusivity of marriage by engaging in a mutual relationship outside the marriage.
Such conduct was traditionally viewed as objectionable on social, cultural, religious, and legal grounds. In the Indian context, marriage is regarded as a solemn and sacred institution, founded on mutual trust and commitment. So, an adulterous act by either the husband or the wife is seen as a violation of the sanctity of the marital bond.
Adultery is also commonly described using terms such as infidelity or extramarital affair, each showing the breakdown of trust and loyalty within the marriage.[4]
HAVING AN AFFAIR IS NOT A CRIME IN INDIA
For nearly a century and a half, adultery was treated as a criminal offence under the Indian Penal Code. This position changed only a few years ago, when the Supreme Court of India delivered a landmark judgment that abolished the offence on grounds of gender discrimination in Joseph Shine v. Union of India, 2018.
Section 497 of the Penal Code defined adultery in narrow terms. It punished only a man who engaged in sexual relations with the wife of another man, without the husband’s consent. The woman involved in such a relationship was not considered an offender, nor could the husband be prosecuted for having an adulterous relationship with another woman. In effect, the law treated the wife as the property of her husband and imposed criminal liability solely on the male involved in such an act.
Recognising this built-in inequality and the denial of a woman’s autonomy, the Supreme Court held that the provision was unconstitutional and decriminalised adultery. However, the Court made it clear that while adultery would no longer attract criminal punishment, it would continue to remain a valid ground for divorce and other civil consequences under marriage law.[5]
ADULTERY AS A GROUND OF DIVORCE IN INDIA
Adultery is a common reason for marital disputes and divorce in India. Laws such as the Hindu Marriage Act 1955 section 13(1)(i), and the Special Marriage Act, 1954 section 27 (1)(a), clearly recognise adultery as a valid ground for divorce, and it is often cited as a cause for the breakdown of marriage.[6]
In legal terms, an extramarital affair is the same as adultery. When a married person has a sexual relationship outside the marriage, it can be used as a ground for divorce. Such conduct may also be relied upon to show mental cruelty or emotional suffering caused to the other spouse.
However, courts are careful while dealing with such allegations. Adultery must be proved with sufficient evidence, which may include witness statements, photographs, or electronic records such as messages and emails, as seen in Bipin Chander Jaisinghbhai Shah v Prabhavati AIR 1957.[7][8]
ndia, adultery is not a criminal offence, which means a person cannot be punished or sent to jail for an extramarital affair. But this does not imply that such relationships have no legal consequences.
Civil Implication: Adultery is still a valid ground for divorce under laws such as the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, and the Special Marriage Act, 1954. A partner can look for a divorce if the other spouse has been unfaithful or disloyal. In child custody matters, courts consider the conduct of both parents, with the child’s welfare being the primary factor.
Social Implication: Even after decriminalisation, extra-marital affairs or illicit relationships are still viewed negatively in Indian society. They often lead to social stigma, family disputes, and emotional distress. While the law no longer treats adultery as a crime, it does not remove the moral responsibility that spouses owe to each other, and breaches of trust can deeply affect families, their mental health, and especially children.[9]
CONCLUSION
Adultery is no longer treated as a criminal offence in India, but it is still recognised as a valid ground for divorce under Hindu laws. If a spouse finds it impossible to continue living with their partner due to infidelity or adultery, the law allows the marriage to be dissolved on that basis. The responsibility of proving adultery lies on the spouse who makes the allegation of an illicit relationship. The court will require acceptable and relevant evidence before granting a divorce on this ground.
Adultery is widely considered a conduct that weakens the bond of marriage, which holds significant social importance in India. The State has a duty to safeguard and uphold marriage as a foundational social institution to ensure social stability and harmony.[10]
Author’s Name: Soumali Majumdar (Heritage Law College, Kolkata)
References:
[1] Legal Seva, ‘What is Illicit Relation’ (India Legal News, 9 November 2018) <https://indialegalnews.com/2018/11/09/what-is-illicit-relation/> accessed 14 December 2025
[2] The Indian Penal Code 1860, s 497
[3] Legal Seva, ‘What is Illicit Relation’ (India Legal News, 9 November 2018) <https://indialegalnews.com/2018/11/09/what-is-illicit-relation/> accessed 15 December 2025
[4] G S Bagga, ‘Is Having an Affair a Crime in India?’ (gsbagga.com) <https://gsbagga.com/blog/is-having-an-affair-a-crime-in-india/> accessed 14 December 2025
[5] Ibid
[6] Hindu Marriage Act 1955, s 13(1)(i); Special Marriage Act 1954, s 27(1)(a)
[7] ‘Divorce due to Extra Marital Affairs in India (Best Divorce Lawyers Delhi, 3 January 2025) <https://www.bestdivorcelawyersdelhi.com/divorce-due-to-extra-marital-affairs-in-india/> accessed 14 December 2025
[8] Bipin Chander Jaisinghbhai Shah v Prabhavati AIR 1957 SC 176
[9] Harish Bajaj, ‘Is Extra-Marital Affair Legal in India?’ (The Legal Crusader)
<https://thelegalcrusader.in/is-extra-martial-affair-is-legal-in-india/> accessed 15 December 2025
[10] iPleaders, How to take legal action against adultery in India (iPleaders Blog, 4 May 2024) <https://blog.ipleaders.in/take-legal-action-adultery-india/#Valsarajan_v_Saraswathy_2003 >accessed 15 December 2025
