Adultery as a Ground for Divorce in India

Adultery is not a crime in India, but it is still a valid ground for divorce. Section 13(1)(i) of the Hindu Marriage Act, 1955 allows either spouse to seek dissolution on the ground that the other has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. What the Supreme Court did in 2018 was strike down the criminal offence, not the matrimonial ground. You cannot have anyone arrested. You can still ask a civil court to end the marriage.

Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.

That distinction sounds simple and is constantly got wrong, including by people who have already filed. This guide sets out the ground as the statute words it, the equivalent provisions under the other personal laws, what a court will accept as proof, and the four statutory bars in Section 23 that quietly defeat more adultery petitions than any defence evidence ever does.

What adultery means in matrimonial law today

Adultery in matrimonial law is voluntary sexual intercourse by a married person with someone who is not the spouse, during the subsistence of the marriage. Three elements have to be present.

• A valid, subsisting marriage. The parties must legally be husband and wife at the time of the act.
• Voluntary intercourse. Consent on the part of the spouse accused is essential. An act to which that spouse did not consent is not adultery on their part.
• With a person other than the spouse. A single proved act is enough. The statute does not require a continuing relationship.

Note the shift after 2018. Older judgments frequently borrowed the definition of adultery from the criminal law, which was written around the husband's proprietary interest. Since that provision is gone, the matrimonial ground is now read on its own gender-neutral terms: a husband's adultery and a wife's adultery are treated identically for the purpose of dissolving a marriage, because Section 13(1) opens with "on a petition presented by either the husband or the wife".

Four things define the matrimonial ground as courts read it after 2018.

The ground under Section 13(1)(i), and where to look under other laws

For Hindus, and by the Act's own definition that includes Buddhists, Jains and Sikhs, the provision is Section 13(1)(i) of the Hindu Marriage Act, 1955, whose text is on the official portal: Hindu Marriage Act, 1955 on India Code. The same fact will also support a petition for judicial separation, because Section 10(1) permits judicial separation on any of the grounds specified in Section 13(1). That is a real option where a spouse wants the legal separation and financial reliefs but not, yet, a dissolution.

Key takeaway. The Parsi Act is the only one of these with an express limitation clause for adultery: the suit fails if it is brought more than two years after the plaintiff learned of the fact. Under the Hindu Marriage Act there is no such deadline in the section itself, but Section 23(1)(d) requires the court to be satisfied that there has been no unnecessary or improper delay in instituting the proceeding, which does much the same work with less certainty.

What Joseph Shine actually decided

In Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017, decided on 27 September 2018, a five-judge Constitution Bench struck down Section 497 of the Indian Penal Code and, with it, Section 198 of the Code of Criminal Procedure so far as it prescribed the procedure for complaining of that offence. The reasoning was that the provision rested on the assumption that a wife is the property of her husband, that only the husband could prosecute and only the other man could be punished, and that criminal law has no business policing a consensual relationship inside a marriage. Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India were overruled.

For family lawyers the operative sentences are elsewhere in the judgment. The Court said in terms that adultery does not fit the concept of a crime and that "it is better to be left as a ground for divorce", and separately that there can be no doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. So decriminalisation removed the threat of prosecution. It left the matrimonial ground exactly where it was.

On the renumbering: the Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita, 2023, and the Code of Criminal Procedure by the Bharatiya Nagarik Suraksha Sanhita, 2023. Consistent with Joseph Shine, the Bharatiya Nyaya Sanhita did not re-enact adultery as an offence. If an article still describes "Section 497 IPC" as live law, it is out of date by more than seven years.

The armed forces carve-out most people miss

On 31 January 2023 a five-judge bench of the Supreme Court disposed of the Union of India's application for clarification in the same matter, reported as Joseph Shine v. Union of India. The Court recorded that the 2018 judgment was not at all concerned with the effect and operation of the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, and that it had neither been called upon to, nor did it, pronounce on the effect of Sections 45 and 63 of the Army Act or the corresponding provisions in the other two Acts. Section 45 deals with unbecoming conduct and Section 63 with acts prejudicial to good order and military discipline.

The practical effect is that a serving officer can still face court martial proceedings in respect of adulterous conduct, under service law, even though no criminal court can try him for adultery. Spouses of service personnel routinely do not know this, and it changes the negotiating position in a matrimonial matter considerably.

Proving adultery: the standard and the evidence

Adultery is almost never witnessed, so the case is built on circumstances. The standard is the civil one, preponderance of probabilities, not proof beyond reasonable doubt. Courts nonetheless scrutinise the material closely, because the allegation is grave and its consequences are permanent. Suspicion, however strong, is not proof, and a petition that pleads only that the respondent "was always on the phone" will fail.

1. Plead particulars, not conclusions. Give dates, places and the identity of the other person if known, because a court cannot weigh "improper relations" as a fact.
2. Assemble the circumstantial chain: opportunity and inclination together. Hotel registers, travel and stay records, joint bookings, and evidence of living as a couple carry far more weight than affectionate messages standing alone.
3. Collect digital material properly. Messages, call detail records and photographs are useful only if their origin can be spoken to by a witness and they satisfy the electronic-evidence requirements. Material extracted from a spouse's phone without consent invites a privacy objection and often a counter-allegation.
4. Use the court's process rather than self-help. Apply for production of call detail records, hotel records and bank statements through the court, so that the source is provable and the collection is lawful.
5. Where paternity is genuinely in issue, ask the court to consider a DNA direction. It is a judicial discretion exercised sparingly, not a right of the petitioner, and it will not be ordered merely to test a suspicion.
6. Prove the marriage and the date of solemnization first. The act must postdate the marriage, and a surprising number of petitions never formally prove the marriage certificate.

Common mistake. Clients arrive with a phone full of screenshots taken from their spouse's device, often obtained by installing a tracking application. That evidence frequently does more damage than good: it can be excluded, it hands the other side a privacy and cruelty argument, and it makes the petitioner look like the aggressor at the very hearing where their conduct is under scrutiny under Section 23. Get the same facts through court process instead.

The four statutory bars that defeat a good case

Section 23(1) of the Hindu Marriage Act is the provision most adultery petitions founder on, and it applies whether the petition is defended or not. Before granting relief the court must be satisfied of each of the following.

• No taking advantage of one's own wrong. Section 23(1)(a) requires that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief.
• No accessory, connivance or condonation. Section 23(1)(b) says that where the ground is Section 13(1)(i), the petitioner must not in any manner have been accessory to, connived at, or condoned the acts complained of. Resuming cohabitation with full knowledge of the adultery is the classic condonation, though later conduct of the same kind can revive the ground.
• No collusion. Under Section 23(1)(c) the petition must not be presented or prosecuted in collusion with the respondent. This is why an "arranged" adultery petition, used as a shortcut to a quick decree, is a bad idea rather than a clever one.
• No unnecessary or improper delay. Section 23(1)(d) requires that there has not been any unnecessary or improper delay in instituting the proceeding.

Two timing rules sit alongside these. Section 14 bars any divorce petition within one year of the marriage, unless the court grants leave on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. And Section 21B directs that the trial be continued from day to day so far as practicable, with an endeavour to conclude it within six months from the date of service of notice on the respondent, and an appeal within three months of service of the notice of appeal.

Deadline warning. If you have learned of the adultery and are still weighing your options, be aware that time is running against you in three different ways: the two-year proviso if the marriage is a Parsi marriage, the delay bar under Section 23(1)(d) for Hindu marriages, and the condonation bar the moment you resume cohabitation knowing the facts. None of these is a fixed calendar rule, which makes them more dangerous, not less.

Adultery, maintenance, alimony and custody

Proved adultery does not automatically decide the money, but it is expressly relevant in several places.

On maintenance under the criminal procedure route, Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which re-enacts Section 125 of the CrPC, says no wife shall be entitled to an allowance for maintenance or interim maintenance from her husband if she is living in adultery, or if she refuses without sufficient reason to live with her husband, or if they are living separately by mutual consent. Section 144(5) goes further: on proof that a wife in whose favour an order has been made is living in adultery, the Magistrate shall cancel the order. Note the wording carefully. The statute speaks of "living in adultery", a continuing state, not a single lapse.

Under the Hindu Marriage Act, Section 24 governs maintenance pendente lite and expenses of the proceeding, with a proviso that such applications should as far as possible be disposed of within sixty days of service. Section 25(1) permits permanent alimony having regard to the income and property of both parties, "the conduct of the parties and other circumstances of the case", which is where proved adultery enters. Section 25(3) allows the court, at the instance of the other party, to vary, modify or rescind a permanent alimony order if the recipient has remarried, or if the recipient is the wife and has not remained chaste, or if the recipient is the husband and he has had sexual intercourse with any woman outside wedlock.

On children, Section 26 lets the court pass orders on custody, maintenance and education of minor children consistently with their wishes wherever possible. The governing principle remains the welfare of the child. A parent's adultery does not by itself disqualify them from custody; it becomes relevant only where it bears on the child's welfare. For how settlements and one-time payouts are structured, see our guide on one-time settlement in divorce.

Privacy of the proceedings, and remarriage afterwards

Section 22 of the Hindu Marriage Act requires every proceeding under the Act to be conducted in camera, and makes it unlawful to print or publish any matter relating to such a proceeding except a High Court or Supreme Court judgment published with the court's previous permission. Contravention is punishable with fine. That protection matters a great deal in adultery matters and is worth invoking early.

On remarriage, Section 15 provides that once a marriage has been dissolved by a decree of divorce, and either there is no right of appeal, or the time for appealing has expired without an appeal being presented, or an appeal has been presented and dismissed, it is lawful for either party to marry again. Do not plan a wedding date around a decree until that condition is actually satisfied. To understand the full divorce process, grounds and timelines, visit our practice page on family and divorce law.

What we tell clients before they file on this ground

The honest conversation is about whether adultery is the right ground at all, and often it is not. Cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib) are usually easier to prove, carry less stigma for the children, and produce the same decree. Adultery is worth pleading when there is documentary or third-party proof, when paternity is genuinely in issue, or when the conduct is going to matter to the alimony discussion under Section 25(1). It is not worth pleading on a hunch, because a failed adultery allegation is itself frequently pleaded back as cruelty. The other thing we say early, and repeat, is that surveillance of a spouse tends to convert a straightforward petition into a two-front war. Where these petitions fail, the cause is almost never a clever defence. It is condonation the petitioner did not realise had happened, an allegation without particulars, evidence that cannot be proved by anyone who will enter the witness box, or a delay of years that nobody has explained.

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.

Related guides and where to get help

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• Desertion as a Ground for Divorce in India
• Cruelty as a Ground for Divorce Under Indian Law
• Proving Adultery in Divorce: What the Law Requires