Supreme Court on Extramarital Affairs: Overview
An extramarital affair is one of the most emotionally charged issues in family law, and one of the most misunderstood legally. Many people still believe a spouse can be sent to jail for cheating. Since 2018 that is not the law: adultery is no longer a criminal offence in India. What survives is a set of civil and quasi-criminal consequences — divorce, cruelty allegations, maintenance disputes, custody arguments, and, in narrow circumstances, criminal cases where the affair is linked to other conduct.
The Supreme Court's approach has two strands. On the constitutional side, it treats the choice of a sexual partner as a matter of autonomy and dignity, not criminal law. On the matrimonial and evidentiary side, it insists on proof: an affair must be established by acceptable evidence, and it cannot automatically be converted into cruelty, abetment or loss of rights. This page explains the leading judgment, the later refinements, and what an affair actually means for divorce, maintenance and custody today.
What Was the Joseph Shine Case About?
Section 497 of the Indian Penal Code punished a man who had sexual intercourse with the wife of another man without that man's consent, with imprisonment up to five years. The wife could not be punished even as an abettor, and she had no right to prosecute her husband's lover. A writ petition challenged the provision as violating Articles 14, 15 and 21 of the Constitution. On 27 September 2018, a five-judge Constitution Bench led by then Chief Justice Dipak Misra unanimously struck down Section 497, along with Section 198(2) of the CrPC to the extent it applied to that offence, with separate concurring opinions by Justices Nariman, Chandrachud and Indu Malhotra. The Court rejected the Government's argument that criminalisation was needed to protect the sanctity of marriage.
The Main Legal Questions
The Court examined whether adultery should be treated as a crime against the State at all, or as a civil wrong between spouses; whether a law that treated a wife as her husband's property and denied her agency could survive Articles 14 and 15; and how the right to privacy and dignity recognised in Puttaswamy applies to intimate choices within and outside marriage. It also clarified what remains: divorce, and criminal liability where the affair is connected to conduct such as abetment of suicide.
Key Principles on Extramarital Affairs
The following is a structured, plain-English summary of the position emerging from Joseph Shine read with the Supreme Court's later rulings.
Adultery Is Not a Crime
Section 497 IPC was struck down as unconstitutional, and the new criminal codes that replaced the IPC have not recreated the offence. You cannot have your spouse or their partner arrested merely for an affair, and an FIR on that ground alone is not maintainable.
It Remains a Ground for Divorce
The Court expressly preserved adultery as a ground for dissolution of marriage under civil law. Under the Hindu Marriage Act and other matrimonial statutes, a spouse who has voluntary sexual intercourse outside the marriage gives the other spouse a ground for divorce, and often for judicial separation.
An Affair Alone Is Not Cruelty or Abetment of Suicide
The Court has repeatedly held that an extramarital relationship, though immoral, does not by itself establish the offence of cruelty or abetment of suicide. There must be material showing a positive act of instigation or conduct of such a nature as to drive the spouse to suicide, in close proximity to the act.
Adultery Can Affect Maintenance
The maintenance law contains a bar where the claimant spouse is living in adultery. In July 2026 the Supreme Court held that where the husband establishes that charge through evidence on the face of the record at the first instance, the bar can operate even at the interim maintenance stage, and courts should not defer the question to the end of the trial.
Relevant Legal Framework
An affair can surface in several different proceedings, each governed by its own law. Knowing which one applies to your situation is the first step in choosing the right remedy or defence.
| Section 497 IPC (struck down) & the new criminal codes | The offence of adultery was declared unconstitutional in Joseph Shine (2018), and the Bharatiya Nyaya Sanhita, which replaced the IPC from 1 July 2024, does not create an equivalent offence. |
|---|---|
| Hindu Marriage Act, 1955 — Section 13(1)(i) | Voluntary sexual intercourse with any person other than the spouse is a ground for divorce. Comparable grounds exist under the Special Marriage Act, 1954 and other personal laws, with their own requirements. |
| Maintenance Provisions — Section 125(4) CrPC (now Section 144 BNSS) | A wife living in adultery, or who refuses without sufficient reason to live with her husband, or where the parties live separately by mutual consent, is not entitled to maintenance. The Supreme Court has held this bar can be applied at the interim stage on ex facie evidence. |
| Cruelty & Abetment — Sections 498A, 306 IPC (now BNS provisions) | Allegations of cruelty and abetment of suicide are frequently combined with allegations of an affair. Courts require proof of cruelty or of instigation with the required intent; the affair alone is not sufficient. |
| Army, Navy and Air Force Acts | Conduct of this kind can still attract disciplinary action against armed forces personnel under provisions dealing with unbecoming conduct and good order and discipline; the Supreme Court clarified in 2023 that Joseph Shine does not disturb that regime. |
| Constitution of India, Arts. 14, 15 & 21 | Equality, non-discrimination and the rights to privacy, dignity and autonomy formed the basis for decriminalisation, and continue to guide how courts treat intimate choices. |
Timeline of Important Judgments and Developments
Earlier Challenges Fail
The Supreme Court upholds Section 497 in Sowmithri Vishnu and V. Revathi, treating adultery as an offence against the husband and the "sanctity of marriage".
Pinakin Mahipatray Rawal v. State of Gujarat
The Court holds that a mere extramarital relationship is not sufficient to convict for cruelty or abetment of suicide; there must be evidence of conduct driving the spouse to take her life.
K.V. Prakash Babu v. State of Karnataka
The Court reiterates that an illicit relationship, though immoral, does not by itself amount to cruelty under Section 498A or abetment under Section 306 IPC.
Joseph Shine v. Union of India
A five-judge Constitution Bench strikes down Section 497 IPC and the related CrPC provision, holding that adultery cannot be a crime, while preserving it as a ground for divorce.
Clarification for the Armed Forces
The Supreme Court clarifies that the 2018 judgment does not affect disciplinary proceedings against armed forces personnel under the Army, Navy and Air Force Acts.
New Criminal Codes Come Into Force
The Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita replace the IPC and CrPC, without reviving adultery as an offence; maintenance provisions are renumbered.
Abetment and Maintenance Rulings
In Balaji Jaiswal the Court quashes abetment proceedings absent proof of instigation, and in Himanshu Chordia (31 July 2026) it holds that interim maintenance can be denied where adultery is established ex facie.
Civil Consequences, Not Criminal Ones
Affairs are litigated today through divorce, cruelty, maintenance and custody proceedings, with courts insisting on proof rather than assumption.
What Does This Mean in Practice?
For a Spouse Seeking Divorce
An affair gives you a fault ground for divorce, but you must prove it by acceptable evidence — often circumstantial, since direct proof is rare. It can also strengthen a cruelty case if you can show how the conduct affected you.
For Maintenance and Alimony
Adultery by the claimant spouse can bar maintenance under the statutory provision, and the Supreme Court has allowed that objection to be decided at the interim stage on clear evidence. Conduct can also influence the quantum of permanent alimony.
For Criminal Allegations
You cannot prosecute a spouse or their partner for adultery itself. Criminal cases arise only where other offences are made out — abetment of suicide with proof of instigation, cruelty, bigamy on a second marriage, or offences involving harassment or violence.
For Custody and Children
Custody is decided on the welfare of the child, not on punishing a parent. An affair is relevant only if it is shown to affect the child's welfare or the parent's ability to care for the child.
Guidance for the Aggrieved Spouse and for the Person Accused
These rulings affect the two sides of a marriage very differently — the spouse who believes their partner is having an affair, and the person facing that allegation, sometimes along with criminal complaints. What you should do next depends on which side you are on.
If Your Spouse Is Having an Affair
- Understand at the outset that you cannot have them arrested for the affair itself; your remedies are matrimonial, not criminal.
- Decide what you actually want — reconciliation, judicial separation, divorce, maintenance, or custody — before starting litigation.
- Preserve evidence lawfully: messages you legitimately have access to, photographs, hotel or travel records, and witness accounts. Avoid hacking accounts or installing spyware, which creates separate liability.
- Remember that recordings can be admissible but must be genuine, complete and properly proved; doctored material will hurt your case.
- In a divorce petition on this ground, follow the procedural requirements, including impleading the alleged third party where the rules require it.
- Keep financial records ready if maintenance or alimony will be in issue, and take advice on limitation and forum before filing.
If You Are Accused of an Affair
- Do not ignore notices or petitions; allegations in a divorce case can carry serious financial and custody consequences even though adultery is not a crime.
- If a criminal complaint has been filed for cruelty or abetment of suicide, seek legal advice immediately — including on anticipatory bail where required.
- Point out, where applicable, that an affair alone does not establish cruelty or abetment and that instigation in close proximity to the act must be shown.
- Challenge evidence that is edited, fabricated or unlawfully obtained, and insist on proper proof of electronic material.
- If you are in the armed forces or a disciplined service, take specific advice, since departmental and service law consequences can still follow.
Does This Apply to Your Situation?
How an affair affects your case depends on your personal law, the evidence available, whether maintenance or custody is in issue, and whether criminal complaints have been filed alongside. The legal position is settled, but outcomes turn heavily on facts and proof.
Read the Original Supreme Court Judgment
Wherever possible, refer to the original court record for the exact findings and reasoning rather than relying solely on editorial summaries — including this one.
📄 Visit Supreme Court of India WebsiteRelated / Landmark Cases on Extramarital Affairs
These judgments form the framework within which affairs are litigated today. This is general legal information — always have a lawyer confirm how a precedent applies to your specific facts.
Joseph Shine v. Union of India
A Constitution Bench struck down Section 497 IPC and Section 198(2) CrPC to the extent applicable to it, holding adultery unconstitutional as a criminal offence, while clarifying that it remains a ground for divorce and that abetment of suicide may be prosecuted where an act of adultery leads the aggrieved spouse to suicide.
Pinakin Mahipatray Rawal v. State of Gujarat
The Court held that the mere fact of an extramarital relationship is not sufficient to hold a husband guilty of cruelty or abetment of suicide; the prosecution must show conduct that drove the wife to take her life.
K.V. Prakash Babu v. State of Karnataka
The Court reiterated that an illicit relationship, by itself, does not constitute cruelty under Section 498A IPC or abetment under Section 306 IPC, and cautioned against convictions based on moral disapproval rather than evidence.
Balaji Jaiswal v. State of Chhattisgarh
Justices K.V. Viswanathan and Atul Chandurkar quashed abetment-of-suicide proceedings against a man alleged to have been in a relationship with the deceased's wife, holding there was no material showing a positive act of instigation in close proximity to the suicide.
Himanshu Chordia v. State of Rajasthan
Justices Sanjay Karol and Vipul M. Pancholi held that where a husband establishes the wife's adulterous relationship through evidence on the face of the record, the statutory bar applies at the interim maintenance stage, and courts cannot dismiss such an application at the threshold as a matter to be decided only at final hearing.