Is an extra marital affair legal in India? Adultery is not a criminal offence after the Supreme Court’s 2018 ruling, but it can still impact divorce, maintenance, child custody, and workplace/service discipline.

People often ask a direct question: “Is extra marital affair legal in India?” The honest legal answer is slightly longer than “yes” or “no”.

Today, consensual adultery is not a crime for civilians. The police cannot register an FIR just because a spouse had an affair. However, an affair can still create serious consequences in family court, especially in divorce, maintenance, and custody disputes. In some careers (particularly disciplined forces), it may also attract departmental action.

This blog explains the law in simple terms, with the key statutes and the leading case law that shaped the current position.

1) Is adultery a criminal offence in India?

For civilians: no. The Supreme Court struck down the old adultery offence (Section 497 of the IPC). That decision removed adultery from criminal law for consenting adults.

A practical takeaway:

• No arrest or prosecution merely because of an extra-marital relationship between consenting adults.

• Your remedy is usually civil/family law, not criminal law.

A quick note on the new criminal code (BNS)

India has replaced the IPC with the Bharatiya Nyaya Sanhita (BNS). Adultery does not come back as a criminal offence in this new law. In other words, the change in the criminal code does not revive the old adultery crime.

2) If it’s not a crime, why do lawyers still treat affairs as “serious”?

Because family law treats adultery very differently from criminal law.

An affair can become relevant in:

• Divorce / judicial separation

• Maintenance / alimony

• Child custody and visitation

• Evidence battles (messages, call records, hotel stays, etc.)

• Service discipline (armed forces and similar services)

So, while the State will not punish adultery as a criminal offence, family courts can still consider it as marital misconduct depending on the relief sought.

3) Adultery as a ground for divorce

In most Indian marriage laws, adultery remains a statutory ground for divorce.

What counts as “adultery” for divorce?

In matrimonial law, adultery generally means voluntary sexual intercourse with someone other than the spouse during a subsisting marriage.

Two important points:

1. Emotional cheating may hurt a marriage, but it typically does not meet the strict legal definition of adultery.

2. Courts often rely on circumstantial evidence, because direct proof is rare.

Common laws where adultery appears as a divorce ground include:

• Hindu Marriage law

• Special Marriage law (civil/interfaith marriages)

• Christian divorce law

• Parsi law

For Muslims, divorce does not operate through a single “adultery section” in the same way; instead, courts examine grounds under the Dissolution of Muslim Marriages Act (for wives) and principles of Muslim personal law. Conduct like the husband leading an infamous life or associating with women of evil repute can become relevant in certain fact patterns.

4) Does an affair automatically decide maintenance or alimony?

No. But it can affect the outcome.

Maintenance under CrPC

The maintenance law under Section 125 CrPC contains a disqualification concept: a wife may not be entitled to maintenance if she is “living in adultery.” Courts usually treat this as a high threshold, not a casual allegation.

Maintenance under Hindu law (HAMA)

Under the Hindu Adoptions and Maintenance law, a wife can lose entitlement to separate residence and maintenance if she is “unchaste.” Again, courts do not act on suspicion alone; evidence matters.

The practical reality: maintenance decisions remain case-specific. Courts look at:

• financial dependence,

• children’s needs,

• conduct of both parties,

• and whether the allegation is proved with credible material.

5) Child custody: does adultery decide who gets the child?

No. In custody disputes, courts treat the welfare of the child as the paramount factor.

An affair may become relevant only if it links to issues such as:

• neglect of the child,

• unsafe or unstable home environment,

• exposure of the child to harmful situations,

• or behaviour that directly impacts the child’s wellbeing.

A parent does not lose custody rights just because the marriage broke down due to an affair. Family courts focus on parenting capacity and the child’s best interests.

6) Evidence: how do courts “prove” an affair?

Proving adultery is usually the hardest part of these cases.

Because direct evidence is rare, courts often consider circumstantial evidence, such as:

• hotel stays and travel records,

• photographs/videos (lawfully obtained),

• call detail records / location data obtained through court process,

• chats and emails,

• admissions, or

• witness testimony that shows opportunity and intimacy.

A key family court principle

Family courts have wider discretion to receive material that helps them decide disputes effectively. This becomes important in modern cases involving electronic records.

That said, you must be careful. Even if a family court may consider certain material, collecting evidence illegally can create separate legal risks. Always take advice before you act.

7) Service discipline and the armed forces

Even though adultery is not a civilian crime, it can still create consequences in service law, especially for defence personnel. The Supreme Court clarified that the 2018 decriminalisation ruling does not prevent disciplinary action under armed forces enactments.

So, for serving personnel, the question is not “Is adultery a criminal offence?” but “Can the department treat this as misconduct?” Often, yes—depending on the service rules and facts.

Joseph Shine v. Union of India 

F (Facts): A constitutional challenge attacked the colonial-era adultery offence that criminalised a man’s sexual relationship with another man’s wife and treated the woman as legally passive.
I (Issue): Whether criminalising adultery in this form violated constitutional rights such as equality, dignity, and personal liberty.
R (Rule): Criminal law must treat adults as autonomous individuals and cannot enforce a patriarchal model of marriage through unequal criminal sanctions.
A (Application): The Court found the adultery offence discriminatory and inconsistent with constitutional protections. It held the law treated women as property and failed equality standards.
C (Conclusion): Adultery ceased to be a criminal offence for civilians, though it could remain relevant in matrimonial disputes.

Union of India v. Joseph Shine

F: Questions arose about whether decriminalisation prevents armed forces authorities from acting against adulterous conduct under service laws.
I: Whether the 2018 ruling bars disciplinary action under armed forces enactments.
R: Criminal decriminalisation does not automatically rewrite service discipline standards.
A: The Court clarified that the 2018 ruling did not decide issues under armed forces laws.
C: Disciplinary action under relevant service enactments can still be examined independently.

Narendra v. K. Meena 

F: A spouse alleged the other had an extra-marital affair and made serious accusations affecting reputation and marital life.
I: Whether such allegations and conduct can amount to mental cruelty warranting divorce.
R: False or reckless allegations about a spouse’s character can constitute mental cruelty when they cause deep mental pain and make cohabitation unreasonable.
A: The Court treated character assassination-style allegations seriously and examined how they impacted marital dignity and mental peace.
C: Courts can treat such conduct as cruelty, depending on facts and proof.

9) What should you do if you discover an affair?

If you are considering legal action, keep your steps clean and practical:

• Preserve existing material (do not fabricate or edit).

• Avoid threats or public shaming (it can backfire in court and create legal exposure).

• Consult a lawyer early to choose the correct remedy (divorce, separation, maintenance, custody plan).

• If children are involved, document parenting and stability, not just the affair narrative.

Closing Thought

So, an extra marital affair is not a criminal offence in India for civilians, but it is still legally significant in family courts and, in some professions, in service discipline.