Your spouse is having an affair. Your first question is probably the hardest one: can you have them arrested?
The short answer is no. But that does not mean nothing can be done. The law moved adultery out of the criminal court and into the family court, and most people only know half of that story.
This guide explains exactly where the law stands in 2026, what an affair can still cost in a divorce, and the mistakes that turn a wronged spouse into the one facing a case.
Is Extramarital Affair Legal in India?
An extramarital affair is not a crime in India. On 27 September 2018, a five-judge Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code in Joseph Shine v. Union of India. Nobody can be arrested or jailed for adultery alone, and there is no extramarital affair punishment in India today.
But it is not without consequences. Adultery is still a valid ground for divorce under every personal law in India. It can affect maintenance and, in some situations, custody arrangements. For members of the armed forces, it can still lead to disciplinary action.
So the accurate way to put it: adultery is not a criminal offence, but it is still a legal problem.
Extra-Marital Affairs in India: What Changed in 2018, and Why
Before 2018, Section 497 IPC made adultery a crime. It worked like this:
| Under the old Section 497 IPC | |
|---|---|
| Who could be punished | Only the man |
| Could the wife be punished? | No, not even as an abettor |
| Maximum punishment | 5 years imprisonment, a fine, or both |
| Who could file the complaint | Only the husband of the woman involved (Section 198(2) CrPC) |
| If a married man slept with an unmarried woman | No offence at all |
| If the husband consented | No offence at all |
Read that table again and the problem becomes obvious. The law did not protect the marriage. It protected the husband’s control over his wife. A wife had no right to complain if her husband strayed, and a husband could legally permit the affair.
What the Supreme Court did. In Joseph Shine v. Union of India, decided on 27 September 2018, a bench of Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra unanimously struck down Section 497. They wrote four separate concurring judgments.
The Court held that the section violated Article 14 (equality) and Article 21 (life and personal liberty, including dignity and privacy). It also struck down Section 198(2) of the CrPC to the extent it applied to adultery. Three earlier rulings that had upheld the law were overruled: Yusuf Abdul Aziz (1954), Sowmithri Vishnu (1985) and Vishnu Revathi (1988).
Crucially, the Court said the same thing twice over: adultery cannot be a crime, but it remains a ground for divorce.
Did the New Criminal Law Bring Adultery Back?
No. This is where a lot of online advice is out of date, so it is worth being precise.
In 2023, the Parliamentary Standing Committee on Home Affairs recommended that adultery be made a crime again, this time in a gender-neutral form so both men and women could be prosecuted.
That recommendation was not accepted. When the Bharatiya Nyaya Sanhita (BNS) replaced the IPC on 1 July 2024, it did not carry an adultery offence. PRS India’s analysis of the Bill records it plainly: adultery has been omitted.
So as of 2026, the extramarital affair law in India stands like this:
- There is no Section 497 equivalent in the BNS.
- There is no punishment for an extramarital affair by itself.
- No FIR can be registered for adultery alone, and no arrest can be made for it.
Anyone telling you otherwise is working from pre-2018 information.
Is extramarital affair illegal in India, then? No. Not illegal, and not punishable. But the next section explains why “not illegal” is not the same as “no risk”.
Legal Consequences of Extramarital Affair in India: The Honest List
This is the part most articles skip. Decriminalised does not mean consequence-free.
| Area | Does an affair matter? | What it means in practice |
|---|---|---|
| Criminal case | No | No FIR, no arrest, no jail for adultery itself |
| Divorce | Yes | A valid ground for divorce under every personal law |
| Maintenance | Sometimes | A wife “living in adultery” can be disqualified under Section 125(4) CrPC, now Section 144(4) BNSS |
| Child custody | Indirectly | Courts decide on the child’s welfare, not on the parent’s morality. It matters only if it affects the child |
| Armed forces | Yes | Disciplinary action is still possible under service law |
| Second marriage | Yes, a crime | Remarrying while the first marriage subsists is bigamy under Section 82 BNS |
| Abetment of suicide | Yes, in rare cases | If the affair drives a spouse to suicide, abetment charges can follow |
Adultery Grounds for Divorce: The Exact Provisions
| Personal law | Provision | Who it applies to |
|---|---|---|
| Hindu Marriage Act, 1955 | Section 13(1)(i) | Hindus, Buddhists, Jains, Sikhs |
| Special Marriage Act, 1954 | Section 27(1)(a) | Inter-faith and civil marriages |
| Divorce Act, 1869 | Section 10(1)(i) | Christians |
| Parsi Marriage and Divorce Act, 1936 | Adultery is a listed ground [CONFIRM section with your counsel before citing] | Parsis |
| Dissolution of Muslim Marriages Act, 1939 | Section 2(viii)(b) is the closest equivalent | Muslim women |
The wording across these statutes is broadly similar. The Special Marriage Act puts it as having “voluntary sexual intercourse with any person other than his or her spouse” after the marriage.
Two points worth knowing. First, the ground is gender-neutral in divorce law. A wife can seek divorce on the ground of her husband’s adultery, and a husband can do the same. That was never true under the old criminal section. Second, emotional closeness or chatting is generally not enough on its own. Courts look for voluntary sexual intercourse, though they often accept circumstantial evidence rather than direct proof.
Can a Married Man Legally Live With Another Woman in India?
This is one of the most searched questions on the topic, and the answer has two parts.
If he simply lives with her without marrying her: this is not a crime. There is no offence of adultery, and living together is not itself punishable. But his wife can use it as a ground for divorce, and the conduct can affect maintenance decisions. See our guide to live-in relationship laws in India for how courts treat these arrangements.
If he marries her while still married to his first wife: this is a crime. That is bigamy under Section 82 of the BNS (formerly Section 494 IPC). The second marriage is void, and he can be prosecuted. Our post on bigamy in India covers the proof required.
So the line is the second marriage, not the relationship.
Can a Husband Be Jailed for an Extra Marital Affair?
Not for the affair itself. There is no provision under which a husband, or a wife, can be jailed simply for being unfaithful. Is adultery a crime in India for a husband but not for a wife? That asymmetry is exactly what the Supreme Court removed in 2018. Neither spouse commits an offence now.
There are four situations where criminal liability can still arise, and none of them is adultery:
- Bigamy — if he marries again during the subsisting marriage (Section 82 BNS).
- Abetment of suicide — if the conduct drives the spouse to take their own life. The Supreme Court specifically preserved this in the 2018 judgment.
- Cruelty or domestic violence — if the affair comes with harassment, threats or violence, those are separate offences in their own right.
- Armed forces discipline — explained below.
A spouse who files a false criminal complaint because the real grievance is an affair usually damages their own divorce case. If you have been on the receiving end of one, read how a husband can deal with a false 498A case.
The Armed Forces Exception
This exception catches many people by surprise.
On 31 January 2023, the Supreme Court clarified that the 2018 ruling does not stop disciplinary action against armed forces personnel. The reasoning is that the armed forces are a distinct class under Article 33 of the Constitution and are governed by their own statutes, such as the Army Act, 1950.
In plain terms: a civilian cannot be punished for adultery, but a serving officer can still face proceedings for conduct unbecoming. If you or your spouse is in service, this changes the picture completely, and you should speak to a lawyer before taking any step.
How Adultery Is Proved in a Divorce Case
Nobody produces a photograph of the act, and courts do not expect one. In practice, adultery is established through circumstantial evidence that leads to a reasonable inference.
Evidence that courts have considered includes:
- Hotel bookings, travel records and shared bills
- Call records showing a sustained pattern
- Messages, emails and photographs
- Testimony of people who saw them together
- Birth of a child during a period when the spouses were living apart
- Admissions made by the spouse
On the standard of proof: Indian courts have not spoken with one voice. Some older judgments demanded proof beyond reasonable doubt. The Supreme Court in Dastane v. Dastane held that the criminal standard is not required in matrimonial matters. Most family courts today work on a balance of probabilities with strong supporting material. Your lawyer will advise on what your particular court expects.
A warning about digital evidence. Screenshots and recordings have to be admissible, not just available. A certificate under Section 65B of the Evidence Act (now the corresponding provision of the Bharatiya Sakshya Adhiniyam) is often required for electronic records. Evidence gathered the wrong way can be thrown out, and worse, can expose you to a case.
What You Should Not Do
This is the section we wish more people read before they walk into our office.
| Do not | Why it backfires |
|---|---|
| Install spyware on your spouse’s phone | This can amount to an offence under the IT Act, and the evidence may still be inadmissible |
| Threaten your spouse or the other person | Criminal intimidation is an offence. It also hands them a case against you |
| Post about the affair on social media | This can expose you to a defamation action, and courts take a dim view of it |
| Confront them physically | Assault is an offence regardless of the provocation |
| File a false criminal case | It damages your credibility in the divorce proceedings, where it matters most |
| Destroy or hide marital assets | Courts notice, and it affects maintenance and settlement |
Anger is understandable. Acting on it is what turns a strong divorce case into a weak one.
What You Should Do Instead
- Preserve evidence properly. Keep originals. Note dates. Do not edit anything. Ask your lawyer what form it must be in to be admissible.
- Decide what outcome you actually want. Reconciliation, mutual divorce or contested divorce are three different paths with three different strategies. Our comparison of mutual divorce vs contested divorce sets out the trade-offs.
- Protect your financial position. Understand your rights on alimony and maintenance before any settlement talk begins.
- Think about the children separately. Custody is decided on the child’s welfare, not on who was at fault. Read child custody laws in India.
- Get advice early. The first few weeks shape the case. Steps taken in anger are hard to undo.
A Note on the Numbers
You will find articles quoting percentages of Indians who have had affairs. We have left those out on purpose.
There is no official Indian government data on extramarital affairs, and the survey figures that circulate online come mostly from commercial dating-app studies with self-selected respondents. They are not a reliable basis for a legal decision.
The figures that are solid are the legal ones: one Supreme Court judgment on 27 September 2018, decided by five judges, which overruled three earlier rulings, and a new criminal code in force since 1 July 2024 that does not contain the offence at all.
Talk to a Family Lawyer in Navi Mumbai
Every affair case is different. Whether an affair helps your divorce, hurts your maintenance claim or barely matters at all depends on facts that only come out in a proper consultation.
Adv. Pooja Agrawal & Associates handles divorce, maintenance, custody and criminal matters from our office in Seawood (East), Navi Mumbai. We act for both husbands and wives, and we will tell you honestly whether your evidence is strong enough before you spend money on a contested case.
This article is general legal information, not legal advice. Laws change and every case turns on its own facts. Please consult a qualified advocate about your situation.
Frequently Asked Questions
Can a married man live with another woman legally in India?
Living with another woman without marrying her is not a crime, since adultery was decriminalised in 2018. However, his wife can use it as a ground for divorce, and it can affect maintenance. If he marries the other woman while still married, that is bigamy under Section 82 of the BNS and is punishable.
Can a husband be jailed for extra marital affairs?
No. A husband cannot be jailed for an extra marital affair alone, because adultery is not a criminal offence in India. He can still face charges for related acts: bigamy if he remarries, abetment of suicide if his conduct drives his wife to take her life, or cruelty and domestic violence offences where those exist.
Is adultery by a man a crime in India?
No. Before 2018, only men could be punished for adultery under Section 497 IPC. The Supreme Court struck down that section on 27 September 2018 as unconstitutional. The Bharatiya Nyaya Sanhita, in force since 1 July 2024, contains no adultery offence. So adultery by a man is not a crime today.
What is the Supreme Court’s decision on extramarital affairs in India?
In Joseph Shine v. Union of India, decided on 27 September 2018, a five-judge Constitution Bench unanimously struck down Section 497 IPC. The Court held it violated Articles 14 and 21 by treating a wife as her husband’s property. It ruled adultery cannot be a crime, but remains a valid ground for divorce.
Is adultery still a ground for divorce in India?
Yes. Adultery remains a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, Section 27(1)(a) of the Special Marriage Act and Section 10(1)(i) of the Divorce Act for Christians. Unlike the old criminal law, the divorce ground is gender-neutral, so either spouse can rely on it.
Does an affair affect maintenance or alimony?
It can. Under Section 125(4) of the CrPC, now Section 144(4) of the BNSS, a wife who is living in adultery can be disqualified from claiming maintenance. Courts read “living in” as an ongoing course of conduct rather than one incident, and they still weigh financial need, children and the overall circumstances.
