Is Adultery Legal in India?

Adultery has long been a sensitive and debated subject in Indian society as well as in Indian law. For over a century, adultery was treated as a criminal offence under the Indian Penal Code. 

However, this legal position underwent a fundamental change in 2018 when the Supreme Court struck down the criminal provision on adultery. Today, adultery occupies a distinct place in Indian law: it is no longer a crime, yet it continues to have serious civil and matrimonial consequences.

This article explains the legal position of adultery in India in a clear and structured manner. It traces the historical background, examines the constitutional challenge, discusses the Supreme Court judgement that decriminalised adultery, and explains its present legal status in matrimonial and service laws.

Meaning of Adultery

In simple terms, adultery refers to voluntary sexual intercourse between a married person and someone who is not their spouse. Traditionally, adultery was viewed as a violation of the marital relationship and a moral wrongdoing. Indian law, however, did not treat all acts of infidelity equally, and this imbalance became the central reason for later constitutional scrutiny.

Adultery as a Criminal Offence Before 2018

Section 497 of the Indian Penal Code

Before 2018, adultery was a criminal offence under Section 497 of the Indian Penal Code, 1860. The provision punished a man who engaged in sexual intercourse with the wife of another man without the consent or connivance of that husband. The punishment could extend to imprisonment for up to five years, or fine, or both.

Several important features of Section 497 are worth noting:

• Only the man involved in the adulterous relationship was punishable.
• The married woman was completely exempted from criminal liability, even as an abettor.
• A married man having sexual relations with an unmarried woman did not commit any offence.
• The offence was considered a wrong committed against the husband of the woman, and not against the wife of the adulterous man.

This provision treated the wife as the property of her husband and denied her any independent legal agency.

Prosecution Under Criminal Law

The procedure for prosecution further reinforced the unequal nature of the law. Under Section 198 of the Code of Criminal Procedure, only the husband of the married woman could file a complaint for adultery. In exceptional circumstances, a person authorised by the husband could do so on his behalf.

A married woman had no right to initiate criminal proceedings, even if her husband committed adultery. This legal framework clearly placed the husband at the centre of the offence and excluded the wife from meaningful participation.

Constitutional Challenge to Section 497

Grounds of Challenge

Over the years, Section 497 was criticised for being outdated, discriminatory, and inconsistent with constitutional values. The provision was challenged on the ground that it violated:

• Article 14 of the Constitution, which guarantees equality before the law
• Article 15, which prohibits discrimination on the ground of sex
• Article 21, which protects life, personal liberty, dignity, and privacy

The argument was that adultery, even if morally wrong, should not attract criminal punishment, particularly under a law that treated men and women unequally.

Joseph Shine v. Union of India (2018)

In 2018, a public interest litigation was filed by Joseph Shine challenging the constitutionality of Section 497 IPC and the related provisions of the CrPC. A five-judge Constitution Bench of the Supreme Court of India heard the matter.

The Court in Joseph Shine v. Union of India unanimously struck down Section 497 on 27 September 2018, declaring it unconstitutional.

Reasoning of the Supreme Court

Gender Discrimination

The Court held that Section 497 was manifestly arbitrary and discriminatory. It punished only men and treated women as passive victims who lacked sexual autonomy. By shielding women from punishment based on their marital status, the law reinforced patriarchal notions that women are incapable of consent and decision-making.

Violation of Equality

The provision failed the test of equality under Article 14 because it created unreasonable classifications. It distinguished between married and unmarried women without any rational basis and denied equal legal protection to women.

Right to Privacy and Dignity

The Court recognised that intimate personal choices fall within the ambit of privacy and dignity protected under Article 21. Criminalising consensual sexual relations between adults, even within the context of marriage, amounted to excessive state interference in private life.

Marriage and Criminal Law

The Court clarified that while marriage is an important social institution, its sanctity cannot be enforced through criminal law. Criminal law should be limited to conduct that seriously harms societal interests, and adultery did not fall within that category.

Present Legal Status of Adultery in India: Is Adultery a Crime Today?

Adultery is not a criminal offence in India for civilians. No criminal prosecution can be initiated against a spouse or a third party solely on the ground of an adulterous relationship. Police authorities and criminal courts no longer have jurisdiction over such matters.

Bharatiya Nyaya Sanhita, 2023 and Adultery

The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code, 1860. A detailed examination of the provisions of the BNS shows that:

• There is no provision in the Bharatiya Nyaya Sanhita criminalising adultery.
• The former Section 497 of the IPC has not been re-enacted in any form.
• No offence under the BNS penalises consensual sexual relations between adults merely on the ground that one or both persons are married.

This legislative silence is deliberate and reflects the binding effect of the 2018 Constitution Bench judgement decriminalising adultery. The legislature has consciously aligned the new criminal code with constitutional principles of equality, privacy, and personal autonomy.

Legal implication:  Adultery is not an offence under the Bharatiya Nyaya Sanhita and cannot attract criminal punishment for civilians.

Bharatiya Nagarik Suraksha Sanhita, 2023 (Procedural Law)

The Bharatiya Nagarik Suraksha Sanhita, 2023 replaces the Code of Criminal Procedure, 1973.

Under the earlier legal regime, Section 198 of the CrPC restricted prosecution for adultery to complaints made by the husband of the married woman. With the repeal of Section 497 IPC, Section 198 CrPC lost its relevance in so far as adultery was concerned.

Under the BNSS:

• There is no procedural provision dealing with prosecution for adultery.
• Courts cannot take cognisance of adultery as there is no corresponding substantive offence under the BNS.
• Police authorities have no jurisdiction to register FIRs or conduct investigations solely on allegations of adultery.

Legal implication: The procedural framework under the BNSS reinforces the decriminalised status of adultery by excluding it entirely from criminal process.

Bharatiya Sakshya Adhiniyam, 2023 (Law of Evidence)

The Bharatiya Sakshya Adhiniyam, 2023 governs rules relating to evidence in courts.

While adultery is not a criminal offence, evidence relating to adultery may still be relevant in civil and matrimonial proceedings, such as:

• Divorce petitions
• Judicial separation cases
• Maintenance and alimony proceedings
• Child custody disputes

The BSA allows the use of:

• Documentary evidence
• Electronic records
• Circumstantial evidence

to establish facts in issue in civil disputes. However, the standard of proof is preponderance of probabilities, not proof beyond reasonable doubt.

Legal implication: The BSA facilitates proof of adultery only in civil contexts, not criminal trials.

Adultery as a Civil Wrong

Although decriminalised, adultery continues to have significant legal consequences in civil law, particularly under matrimonial statutes.

Ground for Divorce

Adultery remains a valid ground for divorce under various personal laws, including:

• The Hindu Marriage Act, 1955
• The Special Marriage Act, 1954
• Christian and Parsi matrimonial laws

A spouse may seek dissolution of marriage by establishing that the other spouse engaged in voluntary sexual relations outside marriage.

Burden of Proof in Matrimonial Cases

In matrimonial proceedings, adultery must be proved by the party alleging it. Direct evidence is rarely available, so courts often rely on circumstantial evidence. This may include patterns of conduct, cohabitation, communication records, and other surrounding circumstances that reasonably indicate an adulterous relationship.

The standard of proof is not as strict as in criminal cases, but mere suspicion or accusation is insufficient.

Impact on Maintenance and Alimony

Adultery may influence the grant of maintenance or alimony in certain cases. Courts consider the conduct of both parties while deciding claims for financial support. However, adultery does not automatically disqualify a spouse from receiving maintenance. Each case is decided on its own facts, keeping in mind fairness and financial dependency.

Effect on Child Custody

When deciding child custody, Indian courts prioritise the welfare of the child. Adultery by a parent does not by itself determine custody. However, if the conduct is shown to negatively affect the child’s well-being or stability, it may be taken into consideration along with other factors.

Position Under Armed Forces Law

The decriminalisation of adultery under civilian law does not fully apply to members of the armed forces. Under military laws such as the Army Act, Navy Act, and Air Force Act, adultery may still constitute misconduct.

Such conduct can attract disciplinary action if it is found to be prejudicial to discipline, morale, or service integrity. These proceedings are not criminal trials under the IPC but are part of internal service regulations.

Adultery and Third Parties

Indian law does not recognise a separate civil action for claiming damages against a third party involved in an adulterous relationship. While allegations against third parties may arise during divorce proceedings, courts have generally refrained from awarding monetary compensation for adultery alone.

Conclusion

Adultery is no longer a criminal offence in India. The striking down of Section 497 of the Indian Penal Code by the Supreme Court in 2018 ended a colonial-era provision that was discriminatory and inconsistent with constitutional values. However, adultery has not been rendered legally irrelevant.

It continues to operate as a civil wrong with serious implications for marriage, divorce, maintenance, and child custody. The present legal position reflects a balanced approach that respects personal liberty while acknowledging the importance of marital obligations under civil law.

Understanding this distinction is essential to appreciating how Indian law now views adultery: not as a crime against society, but as a private wrong with legal consequences confined to the domain of family and matrimonial law.