Is Extra Marital Affair Legal in India?

Is an extra marital affair legal in India? For civilians, it is no longer a crime: the Supreme Court struck down Section 497 of the IPC on 27 September 2018 and the Bharatiya Nyaya Sanhita (BNS) has no replacement, but adultery remains a ground for divorce and can affect maintenance and custody, and armed forces personnel can still face disciplinary action. This is general information, not legal advice.

Quick Facts

The Short Answer

The law moved from crime to civil wrong, and family courts still care.

• The Court held that adultery can be a ground for divorce but cannot be a criminal offence
• No offence under the BNS penalises consensual sexual relations between adults merely because one or both are married
• Courts can’t take cognisance of adultery under the BNSS, since there’s no corresponding substantive offence

What Section 497 Said

The old law was lopsided.

• Section 497 of the IPC made adultery punishable with up to five years’ imprisonment, a fine or both
• Only men could be punished, and women were exempt from prosecution, even when the relationship was consensual
• Section 198(2) of the CrPC, which governed who could complain, was struck down along with it
• The Court found the provisions violated Articles 14, 15(1) and 21 of the Constitution

The 2018 Ruling

Joseph Shine v. Union of India settled the question.

• A five-judge Constitution Bench unanimously struck down Section 497 on 27 September 2018, in four concurring opinions
• The case began as a public interest petition by Joseph Shine, a non-resident Keralite
• The Court emphasised recognising women as equal partners in marriage, capable of making their own choices
• It said that adultery may still be a moral wrong, but it shouldn’t be a criminal offence

The BNS and Attempts to Bring It Back

A new criminal code didn’t restore it.

• The BNS, 2023 does not contain a provision equivalent to Section 497
• A Parliamentary Standing Committee on Home Affairs proposed reinstating adultery in the BNS as a gender-neutral offence, arguing that the old law was struck down for discrimination and a neutral version would fix that
• That recommendation wasn’t adopted, according to the guides I found
• Any future change would need Parliament to legislate

Divorce

This is where adultery still matters most.

• Section 13(1)(i) of the Hindu Marriage Act treats adultery as a ground for divorce
• Section 10(1)(i) of the Indian Divorce Act, 1869 does the same for Christians
• It is also a ground under Muslim, Parsi and Special Marriage Act provisions, according to Advocate Gandhi’s analysis
• A spouse who proves it can seek divorce, though proof is a matter for the family court

Maintenance and Alimony

Sources differ on how much it matters.

• Under BNSS Section 144, formerly Section 125 of the CrPC, a wife living in adultery can lose her right to maintenance, according to Lawyer Talks
• Another guide says adultery is not a bar to maintenance or permanent alimony generally, but may influence the amount or grant based on judicial discretion
• Those can both be true, since the BNSS bar concerns a specific statutory maintenance remedy, while alimony under personal laws is discretionary
• Outcomes depend on the facts and the court

Child Custody

The effect is indirect.

• One guide says adultery can potentially affect custody, but courts focus on the child’s welfare
• An affair alone isn’t a ground to deny custody, and I didn’t find a rule saying otherwise
• Evidence of how conduct affected the child matters more than the relationship itself

The Armed Forces

Military law is different.

• Adultery can still be treated as misconduct under the Army Act, Navy Act and Air Force Act
• On 31 January 2023, the Supreme Court clarified that the Joseph Shine verdict doesn’t apply to court-martial proceedings, according to Wikipedia and Lawyer Talks
• Armed forces personnel can face disciplinary action for adultery even though civilians cannot

What “Legal” Doesn’t Cover

The affair itself isn’t a crime, but related conduct can be.

• Marrying another person while still married is bigamy, covered in the polygamy rules
• Offences such as cheating, intimidation, harassment or sharing intimate images can apply independently of the affair
• Civil consequences, including divorce, remain whatever the criminal law says

Where Guides Differ

A few details vary.

• Whether adultery bars maintenance outright or only influences it
• One guide mentions “civil fines” without explaining them, so treat it with caution
• Check the family court’s approach in your state

FAQs

Q1. Is adultery a crime in India?

A. Not for civilians. The Supreme Court struck down Section 497 IPC on 27 September 2018, and the BNS has no equivalent provision.

Q2. Can I get a divorce because of adultery?

A. Yes. Adultery can be a ground for divorce under the Hindu Marriage Act, the Indian Divorce Act, Parsi law, the Special Marriage Act, and applicable Muslim personal law.

Q3. Does adultery affect maintenance?

A. It can. A wife living in adultery can lose maintenance under Section 144 of the BNSS, and adultery may also influence alimony depending on the facts and the court’s discretion.

Q4. Is adultery still an offence for soldiers?

A. It can be treated as misconduct under military law. The Supreme Court clarified in January 2023 that the Joseph Shine judgment does not prevent disciplinary proceedings under the armed forces’ laws.

Q5. Could adultery become a crime again?

A. A parliamentary committee recommended introducing a gender-neutral adultery offence, but the BNS ultimately omitted it. Parliament would therefore need to enact a new provision for adultery to become a criminal offence again.