Is Having an Affair a Crime in India? Complete Legal Guide by an Experienced Criminal Lawyer in Indore
No, having an affair (adultery) is not a criminal offence in India. The Supreme Court of India, in the landmark case of Joseph Shine v. Union of India (2018), struck down Section 497 of the Indian Penal Code as unconstitutional, and the Bharatiya Nyaya Sanhita, 2023 (BNS) does not create any offence of adultery. However, an extramarital affair can still have serious civil and matrimonial consequences, including divorce, child custody disputes, maintenance issues, and its impact on matrimonial litigation.
Marriage is not only a social institution but also a legally recognized relationship that creates rights and obligations between spouses. Trust, loyalty, and mutual respect are considered the foundation of every successful marriage. When one spouse engages in an extramarital relationship, it often leads to emotional trauma, loss of trust, separation, and ultimately divorce.
Many clients who visit my office in Indore ask questions such as:
“Can my husband be arrested for having an affair?”
“Can I file an FIR against my wife for adultery?”
“Can the boyfriend or girlfriend be sent to jail?”
“Can police register a criminal case for an affair?”
“Will an affair automatically result in divorce?”
These questions arise because, for many years, adultery was treated as a criminal offence under Section 497 of the Indian Penal Code. However, the legal position has changed completely after the judgment of the Supreme Court.
As a Criminal Lawyer practicing in Indore, I often advise clients that although an affair is no longer a crime, it can significantly affect matrimonial litigation and may also become relevant in cases involving cruelty, maintenance, child custody, divorce, domestic violence proceedings, and property disputes depending upon the facts of each case.
This comprehensive article explains the present legal position regarding affairs in India, the Supreme Court judgment, criminal and civil consequences, divorce implications, maintenance, child custody, evidentiary issues, and practical legal advice.
What is an Affair or Adultery?
An affair, commonly known as adultery, generally refers to a voluntary intimate or sexual relationship between a married person and someone other than his or her spouse.
An affair may involve:
- A married husband having a relationship with another woman.
- A married wife having a relationship with another man.
- A long-term extramarital relationship.
- A physical intimate relationship outside marriage.
It is important to distinguish between a moral wrong and a criminal offence. Indian criminal law no longer treats consensual adultery between adults as a crime.
Was Adultery Earlier a Criminal Offence?
Yes.
Before 27 September 2018, adultery was punishable under Section 497 of the Indian Penal Code, 1860.
Under the old law:
- Only the man involved with a married woman could be prosecuted.
- The married woman herself could not be punished.
- The husband of the married woman could file the complaint.
- The wife had no corresponding right if her husband had an affair.
The provision was widely criticized because it treated women unequally and reflected outdated assumptions about marriage.
Supreme Court Judgment: Joseph Shine v. Union of India
In Joseph Shine v. Union of India (2018), a Constitution Bench of the Supreme Court unanimously struck down Section 497 IPC as unconstitutional.
The Court held that:
- Adultery should not be treated as a criminal offence.
- Criminal law should not intrude into the private realm of marriage merely because spouses are unfaithful.
- The provision violated constitutional guarantees of equality, dignity, autonomy, and privacy.
- Adultery should remain a ground for divorce, not a basis for criminal prosecution.
After this judgment:
- No FIR can be registered merely because one spouse is having an affair.
- Police cannot arrest a person only for adultery.
- Criminal prosecution for adultery is no longer maintainable.
Position Under the Bharatiya Nyaya Sanhita (BNS), 2023
The Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code from 1 July 2024, does not reintroduce adultery as a criminal offence.
There is no provision in the BNS equivalent to the old Section 497 IPC.
Can Police Register an FIR for Having an Affair?
No.
If the allegation is only that a married person is having an affair with another consenting adult, no criminal case for adultery can be registered merely on that basis.
However, if the conduct also amounts to another independent criminal offence—such as cruelty, criminal intimidation, assault, forgery, cheating in an appropriate factual context, or abetment of suicide—the concerned offence may still be investigated according to law. The affair itself, however, is not the crime.
Can Husband File a Criminal Case Against Wife’s Boyfriend?
No, merely because the wife is having an affair.
Earlier, such prosecution was possible under Section 497 IPC.
Today, it is not.
The husband may seek matrimonial remedies such as divorce if legally available, but not criminal prosecution solely for adultery.
Can Wife File Criminal Case Against Husband’s Girlfriend?
No.
The wife cannot initiate criminal proceedings merely because her husband is having an extramarital relationship.
However, depending upon the facts, she may have civil or matrimonial remedies.
Is an Affair a Ground for Divorce?
Yes.
Although adultery is no longer a criminal offence, it continues to be a recognized ground for divorce under the applicable matrimonial laws, including the Hindu Marriage Act, 1955.
A spouse alleging adultery must satisfy the court with legally admissible evidence.
Does Every Affair Automatically Result in Divorce?
No.
The Family Court examines:
- The pleadings.
- The evidence.
- The conduct of the parties.
- Applicable legal principles.
An allegation alone is not sufficient.
The spouse seeking divorce bears the burden of proving the case in accordance with law.
How is an Affair Proved in Court?
Direct evidence is uncommon because affairs usually occur in private.
Courts often examine circumstantial evidence, such as:
- Hotel records.
- Travel records.
- Photographs.
- Videos (if lawfully obtained and admissible).
- Electronic communications.
- Emails.
- WhatsApp chats.
- Social media posts.
- Financial transactions.
- Witness testimony.
- Birth of a child in relevant circumstances.
- Other surrounding facts.
Every case depends upon its own facts, and electronic evidence must satisfy the applicable evidentiary requirements.
Mere Friendship is Not Adultery
Many matrimonial disputes arise because one spouse suspects the other based on:
- Frequent phone calls.
- Office friendships.
- Social media interactions.
- Late working hours.
These facts alone do not establish adultery.
Courts require legally acceptable evidence before drawing conclusions.
Can an Affair Amount to Mental Cruelty?
Yes, depending upon the facts.
Where the conduct of one spouse causes serious mental pain, humiliation, or destroys the marital relationship, it may also be relied upon as an instance of mental cruelty in appropriate cases.
Whether such conduct amounts to cruelty depends upon the overall circumstances.
Can an Affair Affect Maintenance?
The answer depends upon the applicable law and the facts.
Maintenance is never decided merely because allegations of an affair are made.
Courts examine several factors, including:
- Financial condition.
- Income.
- Dependence.
- Conduct where legally relevant.
- Applicable statutory provisions.
Each case is decided individually.
Can an Affair Affect Child Custody?
Yes, but not automatically.
The welfare of the child is the paramount consideration in custody matters.
Courts consider:
- Emotional welfare.
- Education.
- Safety.
- Stability.
- Parenting ability.
- Overall best interests of the child.
An affair by itself does not automatically deprive a parent of custody.
Can a Live-in Relationship Become Illegal?
A relationship between consenting adults is generally not a criminal offence merely because one person is married.
However, the legal consequences vary depending upon:
- Existing marriage.
- Fraud.
- Coercion.
- Other offences, if any.
- Matrimonial rights of the spouse.
Can Bigamy Still Be a Criminal Offence?
Yes.
Many people confuse adultery with bigamy.
They are completely different.
Adultery
A consensual extramarital relationship.
Not a criminal offence.
May constitute a ground for divorce.
Bigamy
Marrying again during the lifetime of a legally wedded spouse, where prohibited by the applicable personal law.
This can still attract criminal consequences under the applicable law.
Can an Affair Lead to Domestic Violence Proceedings?
An affair itself is not automatically domestic violence.
However, if the conduct is accompanied by:
- Emotional abuse.
- Economic abuse.
- Physical violence.
- Verbal abuse.
- Harassment.
Appropriate remedies under the Protection of Women from Domestic Violence Act, 2005 may be available depending upon the facts.
Can an Affair Result in Loss of Property Rights?
Generally, an affair by itself does not deprive a spouse of legal property rights.
Property disputes are decided according to the governing property and succession laws.
Can Employer Dismiss an Employee for Having an Affair?
Generally, a consensual affair is not a criminal issue.
However, employment consequences depend upon:
- Service rules.
- Employment contract.
- Nature of employment.
- Workplace policies.
- Conflict of interest.
- Sexual harassment allegations, if any.
Common Misconceptions About Affairs in India
“Police Will Arrest My Spouse”
Incorrect.
Police cannot arrest someone merely because he or she is having an affair.
“Boyfriend or Girlfriend Will Go to Jail”
Incorrect.
Consensual adultery is not a criminal offence.
“Affair Automatically Gives Divorce”
Incorrect.
The spouse seeking divorce must establish the legal grounds before the Family Court.
“WhatsApp Chats Alone Always Prove Adultery”
Incorrect.
Electronic communications are evaluated along with the entire evidence on record.
Practical Advice if Your Spouse is Having an Affair
If you suspect an affair:
- Do not resort to violence.
- Do not threaten the other person.
- Do not circulate private photographs or messages.
- Do not commit acts that themselves amount to criminal offences.
- Preserve relevant evidence lawfully.
- Consult an experienced family or criminal lawyer.
- Consider counselling or mediation where appropriate.
- If reconciliation is impossible, seek appropriate legal remedies through the court.
Role of a Criminal Lawyer in Such Cases
Although adultery is no longer a criminal offence, a criminal lawyer may assist where related allegations involve:
- False criminal complaints.
- Criminal intimidation.
- Assault.
- Extortion.
- Defamation.
- Privacy violations.
- Electronic evidence.
- Bail proceedings arising from connected offences.
Where matrimonial and criminal proceedings run simultaneously, coordinated legal strategy becomes important.
Frequently Asked Questions
Is having an affair a criminal offence in India?
No. Adultery is not a criminal offence after the Supreme Court’s decision in Joseph Shine v. Union of India, and the BNS does not reintroduce it.
Can police arrest a person for adultery?
No. Police cannot arrest a person solely for having an extramarital affair.
Can I file an FIR against my spouse’s lover?
No, merely on the ground of a consensual affair.
Can I get divorce if my spouse has an affair?
Yes. Depending upon the applicable personal law and the evidence, adultery may constitute a ground for divorce.
Can adultery affect child custody?
Possibly, but the court decides custody primarily on the welfare and best interests of the child.
Is bigamy the same as adultery?
No. Bigamy and adultery are distinct legal concepts. Bigamy may still attract criminal liability where prohibited by law, whereas adultery is not a criminal offence.
Conclusion
The legal position in India is now clear: having an affair is not a crime, and no person can be prosecuted or imprisoned merely for engaging in a consensual extramarital relationship. The Supreme Court’s landmark decision in Joseph Shine v. Union of India fundamentally changed the law by holding that adultery is a matter of personal morality and matrimonial consequences rather than criminal punishment.
However, this does not mean that an affair has no legal consequences. An extramarital relationship can become a significant issue in divorce proceedings, claims of mental cruelty, maintenance disputes, child custody litigation, and other family law matters. Each case depends on its own facts, the available evidence, and the applicable legal provisions.
As an experienced Criminal Lawyer in Indore, my advice is that individuals should avoid taking impulsive or unlawful steps upon discovering an affair. Instead of attempting criminal prosecution where none is available, they should seek timely legal advice to understand the appropriate matrimonial, civil, or other legal remedies available under Indian law. A well-planned legal approach protects your rights, avoids unnecessary litigation, and helps you make informed decisions during an emotionally difficult period.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304
