Is Cheating on Your Spouse a Crime in India? Adultery, Divorce, Maintenance and Custody Explained

"My husband is having an affair. Can I file an FIR?" "My wife is seeing someone. Can the other man be jailed?" These are among the most common questions in matrimonial disputes, and the answer surprises most people. Here is where the law stands today.

Adultery is no longer a crime

In Joseph Shine v. Union of India (2018), a five-judge Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, which had made adultery an offence. The Court held that the provision was arbitrary, treated a woman as her husband's property, and violated the rights to equality and dignity. The Bharatiya Nyaya Sanhita, 2023, which replaced the IPC, does not contain an offence of adultery either. So an extramarital relationship between consenting adults is not, by itself, a matter for the police.

One exception is worth knowing: in 2023 the Supreme Court clarified that its 2018 judgment does not prevent disciplinary action against members of the armed forces for such conduct under their service laws.

But it is still a ground for divorce

Decriminalising adultery did not make it irrelevant to marriage. Under the Hindu Marriage Act, 1955 (Section 13(1)(i)), the Special Marriage Act, 1954 and other marriage laws, voluntary sexual intercourse with someone other than one's spouse after marriage remains a ground on which the other spouse can seek divorce. The spouse alleging it must prove it, usually through circumstantial evidence, because direct proof is rare. Courts look for a reliable chain of facts, not suspicion or gossip.

It can affect maintenance

Under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125(4) CrPC), a wife is not entitled to maintenance from her husband if she is "living in adultery". Courts have generally read this to mean a continuing adulterous relationship, not a single lapse, and it must be proved. A child's right to maintenance is not affected by the conduct of either parent.

Custody depends on the child's welfare

In custody matters, the paramount consideration is the welfare of the child. An affair does not, on its own, decide which parent gets custody. Courts look at the child's stability, schooling, emotional bonds, and which parent can provide better care. Conduct matters only insofar as it affects the child.

The mistakes that can make you the accused

When a marriage breaks down, anger and suspicion can push people into steps that are themselves offences:

• Hacking a spouse's phone, email or social media can attract offences under the Information Technology Act, 2000, including unauthorised access (Sections 43 and 66).
• Secretly capturing or sharing intimate images is an offence under Section 66E of the IT Act and may amount to voyeurism under Section 77 BNS.
• Posting allegations online to shame a spouse or the other person can lead to defamation under Section 356 BNS.
• Threatening the spouse or the third person is criminal intimidation under Section 351 BNS.

Evidence gathered unlawfully can also create problems in court. It is far better to take legal advice on how to prove your case lawfully.

If both want to part: mutual consent divorce

Where both spouses agree that the marriage is over, they can seek divorce by mutual consent (for example, under Section 13B of the Hindu Marriage Act), after living separately for at least a year. The six-month waiting period between the two motions can be waived by the court in suitable cases, as the Supreme Court held in Amardeep Singh v. Harveen Kaur (2017). In 2023, in Shilpa Sailesh v. Varun Sreenivasan, the Supreme Court also held that it can dissolve a marriage on the ground of irretrievable breakdown under Article 142 of the Constitution. Settling maintenance, custody and property by agreement is usually faster, cheaper and kinder to the children than a long contest.