Introduction: The “Crime” That Vanished
For over 150 years, adultery in India was not just a moral transgression—it was a criminal offense punishable by up to five years in prison. If you asked a lawyer in 2017, “Is adultery illegal?” the answer was a definitive “Yes.”
Ask the same question today, and the answer is a nuanced “No, but…”
While the Supreme Court of India decriminalized adultery in 2018, stripping it of its penal consequences, it remains a potent weapon in civil courts. It can destroy marriages, deny alimony, and impact child custody. Furthermore, under the new Bharatiya Nyaya Sanhita (BNS) and specific service rules for the Armed Forces, the legal ghost of adultery still lingers.
1. The Historic Shift: Joseph Shine v. Union of India (2018)
To understand the present, we must look at the past. Under the old Section 497 of the Indian Penal Code (IPC), adultery was defined in a way that many modern jurists found archaic:
- The Crime: A man who had sex with a married woman without the consent or connivance of her husband was guilty of adultery.
- The Victim: The law treated the husband as the victim.
- The Perpetrator: Only the male paramour could be punished. The wife was treated as a “victim” who had no agency and could not be punished as an abettor.
The Verdict:
On September 27, 2018, a five-judge Constitution Bench of the Supreme Court unanimously struck down Section 497 in the landmark case of Joseph Shine v. Union of India.
Key Legal Rationale:
- Violation of Article 14 (Equality): The law discriminated against men (who could be prosecuted) and treated women as property of their husbands (since the “crime” disappeared if the husband consented).
- Violation of Article 21 (Dignity & Privacy): The Court held that sexual autonomy is a critical part of individual dignity. Justice D.Y. Chandrachud famously noted that the law was based on “codified patriarchy.”
- Civil vs. Criminal: The Court ruled that while adultery is a moral wrong and a ground for divorce, it should not be a criminal offense. The state has no business policing the bedroom.
- Status Check: As of today, no police officer can register an FIR against you for adultery. It is not a crime for civilians.
2. Adultery Under the New Law: Bharatiya Nyaya Sanhita (BNS)
In 2023-24, India overhauled its criminal justice system, replacing the IPC with the Bharatiya Nyaya Sanhita (BNS).
Many speculated whether the government would re-criminalize adultery in the new code to protect “Indian family values.” They did not.
- No Adultery Section: The BNS does not contain a provision equivalent to Section 497 IPC. Adultery remains decriminalized.
- The “Enticement” Caveat (Section 84 BNS): While simple adultery is not a crime, Section 84 of the BNS (similar to the old Section 498 IPC) retains the offense of “Enticing or taking away or detaining with criminal intent a married woman.”
- If a man takes away or detains a married woman with the intent that she may have illicit intercourse, he can be punished with imprisonment up to two years.
- Analysis: This is technically different from consensual adultery. It requires “taking away” or “concealing/detaining.” However, legal experts warn that this section could potentially be misused by disgruntled husbands to file criminal complaints alleging “enticement” rather than simple adultery.
3. The Exception: The Armed Forces
There is one major group of Indian citizens for whom adultery can still effectively be treated as a punishable offense: The Indian Armed Forces.
In 2023, the Supreme Court clarified that the Joseph Shine verdict does not apply to court-martial proceedings.
- The Logic: The Constitution (Article 33) allows Parliament to restrict the fundamental rights of Armed Forces personnel to ensure discipline.
- The Consequence: An officer can be charged with “unbecoming conduct” or violation of “good order and discipline” if they engage in adulterous relationships, especially with the spouse of a brother officer. This is viewed as a threat to the unit’s cohesion and morale.
4. The Civil Consequences: Where it Still Hurts
Adultery might keep you out of jail, but it can still ruin you in family court. Here is where the “deep analysis” matters for litigants.
A. Ground for Divorce
Under Section 13(1)(i) of the Hindu Marriage Act, 1955 (and similar provisions in the Special Marriage Act), voluntary sexual intercourse with a person other than one’s spouse is a valid ground for divorce.
- One Act is Enough: You do not need to prove a long-term affair. A single act of voluntary sexual intercourse is sufficient cause for a court to grant a divorce.
B. The “Living in Adultery” Bar on Maintenance
This is the most financially critical aspect. Under Section 125(4) of the Code of Criminal Procedure (CrPC)—now Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—a wife is not entitled to maintenance if she is “living in adultery.”
- “Living in Adultery” vs. “Committed Adultery”: Courts have drawn a fine line here. A single instance of infidelity might be a ground for divorce, but it may not automatically bar a wife from maintenance. To be denied maintenance under this specific section, the husband usually must prove a continuous course of adulterous conduct (i.e., she is “living in” that state).
- Recent Precedents: High Courts (e.g., Kerala, 2024-25) have reinforced that if a husband can prove his wife is living in adultery using circumstantial evidence (like call records, hotel stays), the maintenance order can be cancelled.
C. Child Custody Battles
Adultery does not automatically disqualify a parent from custody.
- The “Best Interest” Test: The court looks at the welfare of the child. If a father commits adultery, it does not mean he is a “bad father” legally.
- The Caveat: However, if the adulterous relationship is deemed to be neglecting the child’s needs, or if the parent plans to move the child into a home with a new partner that the court deems unstable, custody can be denied.
5. How is Adultery Proved in Court?
Since adultery happens in secrecy, Indian courts do not expect direct evidence (like an eyewitness). They rely on the “Preponderance of Probabilities” standard, which is lower than the criminal standard of “Beyond Reasonable Doubt.”
Accepted Evidence Includes:
- Circumstantial Evidence: Hotel bills, travel tickets showing the two parties travelled together.
- Electronic Evidence: WhatsApp chats, emails, and call detail records (CDRs) showing non-platonic communication at odd hours.
- DNA Tests: In rare cases regarding paternity, a court may order a DNA test to prove that a child born during the marriage is not the husband’s, which is conclusive proof of adultery.
- Admissions: Recorded conversations or written apologies.
Summary Table: Adultery Legal Status 2025
| Feature | Legal Status | Source/Section |
|---|---|---|
| Criminal Offense | No (Decriminalized) | Joseph Shine v. Union of India |
| Ground for Divorce | Yes | Hindu Marriage Act, Sec 13(1)(i) |
| Bar to Maintenance | Yes (If “Living in Adultery”) | BNSS Section 144 (prev. CrPC 125) |
| Armed Forces | Punishable (Disciplinary) | Army Act / SC 2023 Clarification |
| Punishment | None (Civil Consequences only) | N/A |
Conclusion
Is adultery legal in India? Technically, yes—in the sense that you will not go to prison for it. It is treated as a civil wrong, a breach of contract between two spouses, rather than a crime against the state.
However, viewing it as “consequence-free” is a dangerous misconception. The Indian legal system penalizes adultery heavily through financial and matrimonial means. It serves as a valid ground to end a marriage and can strip a spouse of their right to financial support.
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