Adultery means having a sexual relationship with someone other than your husband or wife while you’re still married. In India, adultery is no longer a criminal offence, but it still plays a major role in divorce proceedings. If your spouse cheats on you, you can file for divorce. At the same time, if you are wrongly accused, you also have legal protection. Understanding how adultery affects divorce in Indian law can help you handle your situation better.
The Decriminalization of Adultery in India
Before 2018, adultery was considered a crime under Section 497 of the Indian Penal Code. It allowed only the husband to take legal action if his wife had an affair. The woman wasn’t punished, and the law didn’t give any rights to a wife if her husband was cheating.
But in 2018, the Supreme Court removed this law in the Joseph Shine vs. Union of India case. The Court said the law was unfair, one-sided, and treated women like property. Since then, adultery is no longer a criminal offence—you can’t file a police complaint or send someone to jail for cheating. But it still remains a ground for divorce in family law.
Adultery as a Ground for Divorce
Even though adultery is no longer a crime, it is still a legal reason to get a divorce. Under Section 13(1)(i) of the Hindu Marriage Act, a husband or wife can file for divorce if their spouse had voluntary sexual relations with someone else after marriage.
You don’t need to show that the affair happened many times—even one incident is enough. But it must be proven with proper evidence. Both men and women have equal rights to use adultery as a ground for divorce.
Impact of Adultery on Divorce Proceedings
Adultery can affect many parts of a divorce case. Here’s how:
- Ground for Divorce: If adultery is proven, it gives a strong legal reason to end the marriage.
- Alimony and Maintenance: If the cheating spouse is financially independent, they may be denied maintenance. For example, if a wife is caught in an affair and is earning, the court might not give her alimony. However, if she is dependent and the husband is at fault, she may still get maintenance.
- Child Custody: Courts focus on the child’s safety and well-being. If adultery affects the child’s mental health or safety, it may influence custody decisions.
- Moral Conduct: Courts also consider overall behaviour. A spouse who is proven to have had an affair may lose sympathy in the eyes of the judge.
Proving Adultery in Court
Adultery can be challenging to prove in court, but it’s definitely not impossible. Indian courts require clear and convincing evidence, not just suspicion or personal belief. There are several types of evidence that can support a claim of adultery. For example, call logs or chat messages on platforms like WhatsApp or Instagram that show romantic or sexual conversations can be useful. Photos or videos that suggest physical closeness or inappropriate behavior are also important. Hotel bookings, travel records, or bills showing the spouse was staying with another person can strengthen the case. Additionally, witness statements from people like neighbours, drivers, or private investigators may also be accepted. Digital records such as emails, screenshots, or location data can also help. While direct proof is rare, a strong combination of such circumstantial evidence can be enough to convince the court that adultery likely took place.
How to Prove Extra-Marital Affair in Court
To prove adultery in court, it’s important to stay calm and approach the situation wisely. Begin by collecting solid evidence such as call records, chat messages, photographs, or hotel receipts that may suggest an affair. Keep an eye on unusual behaviour like frequent late-night outings, secretive phone use, or constant lying. If needed, consider hiring a licensed private investigator who can legally gather information that may be useful in court. You can also use supporting details like travel locations, mutual contacts, or sudden and unexplained spending patterns to strengthen your case. However, it is crucial to avoid any illegal actions—such as hacking into phones or emails—as evidence collected through unlawful means may be rejected by the court or even backfire legally.
How to Find an Illegal Relationship
If you suspect that your spouse is having an affair, it’s important to stay alert and look for signs carefully. Start by observing changes in their behaviour, such as suddenly becoming secretive, hiding their phone, or showing less interest in family life. Pay attention to digital clues like unfamiliar contacts saved with fake names, the use of hidden or private messaging apps, or frequent deletion of messages. Financial patterns may also reveal something—look out for unusual spending or expenses that can’t be explained. When using technology, make sure to access only shared devices or information you have permission to view. For more serious concerns, you can also hire a professional detective agency that uses legal methods to gather evidence. Their reports can often be submitted in court to support your case.
What is Proof of Adultery in Court (India)?
Courts in India accept both direct and circumstantial evidence. Some examples include:
- Chat records (romantic or sexual in nature)
- Photos or videos showing intimacy
- Hotel or lodge booking slips
- Statements from people who saw them together
- Travel tickets and call location data
While direct evidence like a video is rare, enough circumstantial proof can convince the court that an affair happened.
The Future of Adultery in Indian Law
Although adultery is no longer treated as a criminal offence and cannot be reported to the police, it still plays a significant role in civil matters like divorce, maintenance, and child custody. Looking ahead, Indian courts may begin to focus more on emotional affairs and cases of mental cruelty linked to infidelity, recognising that betrayal is not always physical. With the growing use of technology, digital evidence from mobile phones, social media, and cloud storage is expected to become more important in proving such cases. Additionally, there may be efforts to speed up divorce proceedings through specialised family courts. As society continues to evolve, the laws related to marriage and relationships are also likely to change, aiming for more fairness, gender equality, and respect for individual dignity.
Conclusion
Adultery may not be a crime anymore, but it can still end a marriage and affect decisions related to money, children, and court sympathy. If your spouse is cheating on you, or you’re being wrongly accused, take the legal route. Don’t rely on anger, threats, or illegal tactics.
Collect evidence calmly, consult a good lawyer, and let the court decide based on facts. In matters like this, being smart is better than being emotional.