By Advocate Priya Sharma, Senior Family Law Expert
Posted on March 07, 2025
As a seasoned family law practitioner with over 15 years of experience navigating India’s complex matrimonial landscape, I’ve seen countless cases where extramarital affairs unravel marriages and spark legal battles. The question I’m often asked is: Are extramarital affairs illegal in India? The answer isn’t as straightforward as it once was. In this blog, I’ll break down the current legal status of extramarital affairs, explore available remedies, and offer clarity on what this means for spouses seeking justice in 2025.
The Evolution of Adultery Law in India
Until 2018, extramarital affairs—or adultery—carried criminal weight under Section 497 of the Indian Penal Code (IPC). This colonial-era law punished a man for consensual sexual intercourse with another man’s wife without the husband’s consent, with up to five years’ imprisonment, a fine, or both. Notably, the wife faced no penalty, reflecting a patriarchal view of women as property rather than autonomous individuals.
This changed with the landmark Joseph Shine v. Union of India judgment on September 27, 2018. A five-judge Supreme Court bench struck down Section 497 as unconstitutional, citing violations of Articles 14 (equality), 15 (non-discrimination), and 21 (personal liberty) of the Constitution. Chief Justice Dipak Misra emphasized that criminalizing adultery intruded into the private sphere of marriage, treating women as chattel and men as sole offenders. The ruling decriminalized adultery, shifting it from a crime to a civil matter.
Are Extramarital Affairs Legal in India Today?
Yes—and no. As of March 2025, extramarital affairs are not a criminal offense in India. You cannot have your spouse arrested or jailed for infidelity. However, this doesn’t mean the law turns a blind eye. While the state no longer punishes consensual affairs, they remain a potent legal weapon in matrimonial disputes. Here’s where the law stands:
- Civil Consequences: Adultery is a recognized ground for divorce under multiple statutes, including the Hindu Marriage Act, 1955 (Section 13(1)(i)), the Special Marriage Act, 1954 (Section 27(1)(a)), and the Indian Divorce Act, 1869. It’s gender-neutral—either spouse can file for divorce if the other engages in voluntary sexual intercourse outside the marriage.
- Judicial Separation: Under the Hindu Marriage Act, adultery also justifies judicial separation, allowing spouses to live apart without dissolving the marriage.
- Cruelty as a Byproduct: Courts have increasingly recognized extramarital affairs as mental cruelty. In cases like Laxman Ram Mane v. State of Maharashtra (2010), the Supreme Court held that persistent infidelity constitutes cruelty under Section 498A of the IPC, though this applies more to harassment than direct punishment for the affair itself.
Legal Remedies for a Spouse in 2025
If your partner is involved in an extramarital affair, you’re not powerless. Here’s how you can seek redress:
- Divorce on Grounds of Adultery
- Process: File a petition in family court with evidence of the affair—circumstantial proof like messages, photos, or witness testimony often suffices, as direct evidence is hard to come by.
- Outcome: If proven, the court may grant a divorce decree, potentially impacting alimony or property division.
- Mental Cruelty Claims
- Legal Basis: Courts have ruled (e.g., Siddaling v. State of Karnataka, 2018) that an affair causing psychological distress qualifies as cruelty, strengthening divorce or maintenance claims.
- Tip: Document the emotional toll—counseling records or medical reports can bolster your case.
- Maintenance and Custody
- An affair doesn’t automatically disqualify a spouse from maintenance, but it can influence court decisions. For instance, a wife proving her husband’s infidelity might secure higher alimony, while custody battles may tilt toward the non-offending parent if the affair affects the child’s well-being.
- No Criminal Recourse: Post-2018, you can’t file a police complaint for adultery alone. However, if the affair involves harassment or abuse, Section 498A (cruelty) or other IPC provisions might apply.
The Price of Liberty: Social vs. Legal Realities
While the Supreme Court’s ruling champions personal liberty and gender equality, it’s not without controversy. Critics argue it weakens the sanctity of marriage—a cornerstone of Indian society. Proponents, myself included, see it as a progressive step, recognizing that moral wrongs don’t always warrant state intervention. As Justice R.F. Nariman noted in the 2018 judgment, “The law must not perpetuate stereotypes or dictate personal choices.”
Yet, the social stigma persists. Extramarital affairs may not land you in jail, but they can fracture families, ruin reputations, and complicate legal proceedings. For many clients, the emotional cost far outweighs the legal one.
Key Takeaways for Spouses
- Evidence Matters: Courts don’t punish infidelity, but they reward proof. Gather discreet, admissible evidence if you’re pursuing divorce or separation.
- Consult a Lawyer: Family law is nuanced. A skilled advocate can assess whether your case hinges on adultery, cruelty, or both—and maximize your remedies.
- Privacy Prevails: The law respects your autonomy. Whether to forgive or fight is your call, not the state’s.
Looking Ahead: Could Adultery Be Recriminalized?
In 2023, the Parliamentary Standing Committee on Home Affairs suggested reintroducing adultery as a gender-neutral offense under the Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in July 2024. However, as of March 2025, no such provision exists. The debate lingers—balancing individual rights against societal norms—but for now, adultery remains a civil, not criminal, matter.
Final Thoughts from the Bar
Extramarital affairs in India walk a fine line between personal freedom and marital trust. The 2018 decriminalization reflects a modern judiciary prioritizing equality over punishment, yet it leaves spouses to navigate the fallout through civil courts. As a lawyer, I’ve seen this shift empower clients to reclaim agency—whether by exiting a broken marriage or negotiating fair settlements.
Facing an extramarital affair? Don’t go it alone. Reach out to a family law expert to understand your rights. Have questions or experiences to share? Leave a comment below—I’d love to hear your perspective.
Advocate Priya Sharma is a leading family law expert based in Delhi, specializing in divorce, custody, and matrimonial disputes. With a track record of winning complex cases, she blends legal acumen with empathy to guide clients through life’s toughest moments.
