Analysing Extra Marital Affairs: Law in India

Does extramarital affairs law in India lead the way to prisons? If yes, do both the husband and wife get the same pedestal in the eyes of the law? Whether adultery is legal or illegal in India is a matter to be explored in the blog below. When someone establishes sexual relations outside a marriage leaving behind the married spouse, it affects the marriage, the household, and the society at large. Criminal provisions recently backed out from among the adultery-related laws in India for good. But does the new extramarital affairs law in India promote extramarital affairs by recognizing live-in relationships? Let's find out on this page.

What is Adultery in India?

Adultery, in general, can be understood as ‘Sexual intercourse between a married person and someone else other than the spouse, i.e. a person who is not his/her wife/husband’.

Marriage Laws 

As per section 13 (1)(i) of the Hindu Marriage Act, 1955, if a spouse “has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse” it can be a ground for divorce. Section 10 (1)(i) of the Indian Divorce Act 1869, and Section 27 (1)(a) of the Special Marriage Act, 1954 also provide adultery as one of the divorce grounds. A divorce lawyer in Kolkata tells which Act applies to a couple’s divorce in Kolkata based on the religion following which their marriage was solemnized. 

Criminal Laws

As per section 497 of the Indian Penal Code, 1860, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor”. It may be noted that this section has been struck down by the Hon’ble Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676. 

Earlier, adultery under the Indian law of crimes, i.e. Indian Penal Code, was a punishable offense with 5 years of imprisonment as mentioned above. The law punished a man having sexual intercourse with another’s wife without his consent, while such a wife or another woman having extramarital affairs/ sexual intercourse with a man could not be punished. Such discrimination became the root cause of striking down the adultery laws in India. Since the 2018 judgment of the apex court, adultery is no longer a crime. It merely remains one of the grounds for divorce in India.

Consequences of Extra Marital Affairs

• Science students find the statement familiar that “every action has an equal and opposite reaction” (Newton’s law of motion). While marital affair is the sharpest weapon against the other spouse, there are other expected results as shown below:
• Marriage is a forever concept in India. Seeing other people while you are married is against societal norms. Extra-marital affairs brutally stir the foundation of marriages.
• Legally speaking, as per the demolished criminal provision, legal action against a cheating husband in India could bring him to jail. But now, it breaks the marriage irretrievably.
• As per extramarital affairs law in India, a wife could be imprisoned in the rarest of rare cases. Since adultery under IPC exempted the woman and only punished the male, and even cruelty laws assume only women as the victims.
• In the name of punishment for adultery, family lawyers in India may also use the provisions of cruelty under section 498A of IPC to bring the husband behind bars.

New Law on Extra Marital Affairs in India

Since the apex court struck down section 497, it is no longer directly intimidating as per the Indian Penal Code. The existing scenario regarding adultery laws in India is summed up below:

• Extra marital affairs law in India no longer hold the act a criminal offence.
• Except for Muslim laws, all other religious and secular marriage and divorce laws provide adultery as a ground for divorce.
• After the decriminalisation of adultery, some higher courts in India have upheld extramarital affairs of a husband as cruelty against the wife. However, there is no established rule in this regard and the matter depends upon the particular facts of the case. 

FAQs on Adultery Laws in India

1. What is the punishment for extramarital affairs in India?

   Since the offense after the Supreme Court’s 2018 ruling, having extra-marital affairs is not per se punishable. However, the same could be used as a ground for divorce. The punishment for adultery in India could be derived through allegations of cruelty (mental or physical) under section 498A.
   
   

2. Can a married man live with another woman legally?

   Decriminalising section 497 of the Indian Penal Code led to many questions like “Can a married man live with another woman without divorce?”. The Supreme Court in a case denied protection to a couple in an adulterous relationship. The court held that although extra-marital affairs law in India does not attract punishment. However, protecting such people legally will eventually promote the cause which could distort the social fabric in India. Hence, although a married man living with another woman may not be illegal, it is not morally acceptable even by the courts.  
   
   

3. What to do if the husband has extramarital affairs?

   Women who are victims of husband’s adulterous relationships often seek solutions for ‘how to stop husband extra marital affairs?’. In legal terms, the solution could be legal notice for divorce to seek a permanent climax of the marriage. Consequences of extramarital affairs seldom lead to divorce since women tend to compromise with this fact.
   
   

4. Can you go to jail for adultery in India?

   Earlier, the provision of section 497 of the Indian Penal Code, 1860 punished another man for adultery, while the married woman did not have any fear of law in this regard. Due to such discrimination, the apex court ended this law. However, provisions like cruelty may be attracted to continuous adultery by the husband. On the other hand, if the married spouse was having adulterous relations through force, such a person being a victim of force may pursue legal action for sexual abuse/ rape. 
   
   

5. Can I sue my husband for adultery in India?

   Regarding legal action against a cheating husband, India decriminalised section 497 of IPC in 2018. However, it remains a ground for divorce in almost all religious laws. If the husband does not agree to a mutual consent divorce, the wife may take up adultery as grounds for divorce, which needs to be proved in a court of law.  
   
   

6. Can a woman be charged with adultery in India?

   Even earlier when section 497 of IPC was functional, a woman could not be charged with adultery. This was taken as the main ground for striking down the provision as it contemplates a woman as the property of her husband which gets hurt if the wife has adulterous relations with another man. However, the act of cheating should not be discriminating between men and women since it is a crime against marriage and not a gender. 
   
   

7. What is the adultery law?

   Madras High Court in a recent case convicted a husband of cruelty empowering extramarital affairs law in India. In a 2019 judgment, the Punjab and Haryana High Court also held that a woman’s love affair causes mental cruelty against her husband for the dissolution of marriage. As regards the central legislature, a new law on extramarital affairs in India has not been introduced yet.
   
   

8. Can a married woman live with another man legally?

   It is not possible to legalise or prohibit two consenting adults from living with each other as it is their fundamental right to life and freedom. However, a married woman living with another man other than her husband may be directed to resume life with her lawfully wedded husband via the ‘restitution of conjugal rights’, which will automatically prevent her from living with any other man. Also, while co-habitation itself is not illegal, marital laws regarding divorce, maintenance and custody may hold a woman engaging in adultery answerable for her unfaithful acts.
   
   

9. What happens if you have extramarital affairs?

   Since adultery is not a punishable offence anymore. Therefore, it is a ground for divorce.
   
   

10. Can a husband file a case against his wife's lover?

    No case can be filed against the wife’s lover but if the husband has solid evidence, then it shall become a ground for divorce.
    
    

11. Can we file a case against extra marital affairs?

    A case to stop, prevent or penalize (such as imprisonment or fine) an extra marital affair or persons engaging in the affair cannot be filed. However, a civil case for divorce may be filed stating the extra marital affair as a reason.
    
    

12. Is there any punishment for adultery in India?

    There is no criminal punishment for adultery in India following the decriminalization by the Supreme Court in 2018. However, adultery can have civil repercussions, such as being a valid ground for divorce, defense against maintenance claim, reason for deciding who gets custody of a child etc.
    
    

13. What is proof of adultery in court in India?

    Proof of adultery can include photographs, videos, hotel bills, electronic communications (emails, messages), witness testimonies, confessions or admissions by the adulterer etc. An expert divorce lawyer will be better able to advise and help with this.
    
    

14. What to do if wife has extra marital affairs in India?

    If a husband suspects his wife of having an extramarital affair, he can confront and warn his wife of a divorce and its consequences if he wishes to try and resume happy marital life. If not, he can negotiate with the wife for a mutual consent divorce which has the advantage of lesser time, cost and effort than what is required to spend on a contested divorce. He can also use the affair as a reason not to pay any alimony or maintenance claimed or to get custody of any child, stating that that the child will be exposed to an unhealthy environment, immoral values etc. if growing up with the adulterer.