Adultery as a Ground for Divorce in India

Adultery remains a valid ground for divorce in India under Section 13(1)(i) of the Hindu Marriage Act, 1955, even though the Supreme Court struck down the criminal offence of adultery in 2018. In plain terms: you can no longer have your spouse or their partner arrested for adultery, but you can still ask a civil court to dissolve your marriage on the basis that your spouse had voluntary sexual intercourse with another person after the marriage. This article explains how adultery as a ground for divorce works today, what standard of proof a court expects, and how the Joseph Shine judgment changed the picture.

Because divorce law touches deeply personal facts and the statutory section numbers across allied criminal laws have recently changed (IPC to BNS, CrPC to BNSS), please treat this as general information and verify current provisions with an advocate before acting.

What does adultery mean in Indian divorce law?

In matrimonial law, adultery is the act of a married person voluntarily having sexual intercourse with someone who is not their spouse, during the subsistence of the marriage. Three elements matter:

• A valid, subsisting marriage — the parties must legally be husband and wife at the time.
• Voluntary sexual intercourse — consent of the spouse who is being accused is essential; a forced act (rape) is not adultery on that person's part.
• With a person other than the spouse — even one such act, if proved, is enough.

Note an important shift after 2018. Earlier divorce judgments often borrowed the definition of adultery from the old criminal law. Since the criminal offence has been struck down, courts now treat adultery purely as a matrimonial wrong — a civil ground — and apply a gender-neutral understanding: a wife's adultery and a husband's adultery are treated the same way for the purpose of dissolving the marriage.

Adultery as a ground for divorce under HMA Section 13(1)(i)

For Hindus (including Buddhists, Jains and Sikhs), the governing provision is Section 13(1)(i) of the Hindu Marriage Act, 1955. It allows either spouse to petition for divorce on the ground that the other party "has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."

A few practical points:

• A single proven act of voluntary sexual intercourse outside the marriage is sufficient — the law does not require a continuing affair.
• The act must have occurred after the marriage was solemnised.
• The same fact can also support a petition for judicial separation under Section 10 of the Act, if the petitioner does not want full dissolution.

Adultery is also a ground (with slightly different wording) under other personal laws. The table below summarises where to look depending on the marriage.

Marriage governed by	Statute	Adultery-related provision (verify exact numbering)
Hindu / Buddhist / Jain / Sikh	Hindu Marriage Act, 1955	s.13(1)(i) — divorce; s.10 — judicial separation
Special / inter-faith (civil) marriage	Special Marriage Act, 1954	s.27(1)(a)
Christian	Divorce Act, 1869	s.10
Parsi	Parsi Marriage and Divorce Act, 1936	s.32(d)
Muslim (wife's petition)	Dissolution of Muslim Marriages Act, 1939	s.2 (relevant clauses)

Because the precise sub-section can differ between editions and amendments, always confirm the current text on the official statute portal before filing.

Decriminalisation under Joseph Shine: what changed in 2018

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 a crime. The Court held that the provision was unconstitutional because it:

• treated a wife as the property of her husband (only a husband could prosecute, and only the "other man" could be punished);
• denied equality and dignity to women, violating Articles 14, 15 and 21; and
• improperly used criminal law to police a private, consensual relationship within a marriage.

The crucial takeaway for family law: the Court was clear that adultery is no longer a crime, but it remains a valid ground for divorce. So the decriminalisation under Joseph Shine removed the threat of jail, not the right to seek dissolution of marriage. The related criminal-procedure provision (then Section 198(2) CrPC, dealing with who could complain) lost its effect for adultery as well.

IPC to BNS and CrPC to BNSS — a note on numbering

India's criminal statutes were overhauled in 2023. The Indian Penal Code, 1860 (IPC) has been replaced by the Bharatiya Nyaya Sanhita, 2023 (BNS), and the Code of Criminal Procedure, 1973 (CrPC) by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Consistent with Joseph Shine, the new BNS did not re-introduce adultery as an offence. None of this affects the civil ground under the Hindu Marriage Act, which is unchanged. If you read older articles that cite "Section 497 IPC" as a live crime, treat them as outdated and verify the current position.

Proof of adultery: how do you prove it in court?

This is where most adultery petitions succeed or fail. Adultery, by its nature, is rarely witnessed directly, so courts accept circumstantial evidence — but they apply careful scrutiny.

The standard of proof is the civil standard, preponderance of probabilities, not the criminal "beyond reasonable doubt." Even so, because the allegation is serious, courts look for evidence that points convincingly to the conclusion that adultery took place.

Commonly relied-upon proof includes:

• Circumstantial evidence — staying together in a hotel, living as a couple, opportunity plus inclination.
• Photographs, messages, call records and digital evidence — admissible subject to authentication and the law of evidence; illegally obtained material can raise privacy concerns.
• Birth of a child that could not be the husband's (medical/DNA evidence may be ordered by the court, not demanded as of right).
• Testimony of witnesses, private investigator reports, or admissions.
• Contracting a sexually transmitted infection in certain cases.

Courts have repeatedly cautioned that suspicion is not proof. Vague allegations, or evidence gathered by breaching the other spouse's privacy, may be rejected. The table below contrasts the old criminal route with the present civil position.

Aspect	Criminal (pre-2018, s.497 IPC)	Civil ground today (HMA s.13(1)(i))
Status	Struck down by Joseph Shine (2018)	Valid and in force
Consequence	Imprisonment / fine	Dissolution of marriage / judicial separation
Who could act	Only the husband could prosecute	Either spouse can petition
Standard of proof	Beyond reasonable doubt	Preponderance of probabilities
Gender	Discriminatory (women not punishable)	Gender-neutral

Does adultery affect alimony, maintenance or custody?

Adultery is not just a ground for ending the marriage — courts may consider proven conduct when deciding related reliefs, though this is fact-specific and discretionary:

• Maintenance / alimony — a spouse "living in adultery" may, in some circumstances, be disentitled to maintenance under provisions such as Section 125 of the CrPC (now re-enacted in the BNSS — verify the current section). The court weighs conduct case by case.
• Child custody — the welfare of the child is the paramount consideration; a parent's adultery does not automatically disqualify them from custody unless it affects the child's welfare.

For how settlements and one-time payouts are structured, see our guide on one-time settlement in divorce.

Adultery, condonation and remarriage

Two practical issues come up often:

• Condonation — if the aggrieved spouse, knowing of the adultery, forgives it and resumes cohabitation, the court may treat the ground as "condoned." A revival of conduct can, however, revive the ground.
• Remarriage — once a decree of divorce is granted and the appeal period lapses (or appeals are exhausted), parties are free to remarry. The interplay of timelines matters, so confirm the position with your advocate before planning a second marriage.

To understand the full divorce process, grounds and timelines, visit our practice page on family and divorce law.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.