One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Adultery is no longer a criminal offence in India. You cannot file a police complaint only on that ground. However, it remains a valid ground for divorce. If reconciliation is genuinely not possible, you can seek divorce and also secure custody and welfare orders for your adopted daughter. The law prioritises the child’s best interests, not simply the biological or adoptive status of a parent.
Rohan Gupta and Priya Verma lived in San Jose, California, with their adopted daughter, Anaya. What began as a routine life unravelled when Priya grew distant. She had met a man from Coimbatore, Tamil Nadu, through a popular Indian karaoke app. Over months, the online connection turned into an intimate affair. Rohan sensed something was off. He hired a private investigator in India who gathered proof: hotel stays, photographs, and messages confirming the relationship. When confronted in early April 2025, Priya didn’t deny it. She asked for a divorce. Rohan was shattered. He wanted to save the marriage—at least for Anaya’s sake. He consulted a general attorney in California who advised that India’s adultery laws were now civil, not criminal. Disheartened, he then approached the Chamber of Advocate Sudhir Rao. The earlier advice lacked a concrete strategy for cross-border custody and evidence handling. Advocate Sudhir Rao’s office quickly identified that while a police complaint was untenable, the evidence could be leveraged to build a strong divorce petition on the ground of adultery under the Hindu Marriage Act. The client also needed an urgent custody arrangement to prevent the child from being taken to India without consent. Advocate Sudhir Rao and his office argued that the affair constituted cruelty and a valid ground for divorce, and secured a favourable interim custody order from the family court in India, ensuring Anaya’s stability. The matter did not go to a full trial. The other side, realising the strength of the evidence, agreed to a mutual consent divorce with terms protecting the child’s residence and Rohan’s visitation rights. The expertise in handling cross-border matrimonial disputes helped the client move forward without a protracted legal battle.Key Facts of the Case
- Both parties are Indian citizens, married under the Hindu Marriage Act, 1955, and later moved to the US.
- They have an adopted daughter whose legal adoption was formalised in India.
- The wife admitted to an extramarital affair with a man based in Coimbatore.
- Evidence gathered through a licensed private investigator included hotel receipts, photographs, and digital communication.
- Adultery was decriminalised by the Supreme Court in Joseph Shine v. Union of India (2018); it remains a civil ground for divorce.
- No criminal complaint could be lodged merely on the basis of adultery or “domestic interference.”
- The husband wanted to reconcile but was prepared to seek divorce if reconciliation failed; the child’s welfare was the central concern.
The Direct Legal Answer
Can I file a police complaint for adultery or domestic interference?
No. After the Supreme Court’s judgment in Joseph Shine v. Union of India (2018), adultery under Section 497 of the old IPC was struck down. There is no equivalent criminal provision in the Bharatiya Nyaya Sanhita (BNS), 2023. Police will not register an FIR simply because your spouse is having an affair. The term “domestic interference” is not a recognised criminal offence in Indian law.
Will the affair help me in divorce proceedings?
Yes. Under Section 13(1)(i) of the Hindu Marriage Act, 1955, adultery is a ground for divorce. If you belong to a different personal law, similar grounds exist under the Special Marriage Act, 1954, or the Indian Divorce Act, 1869. The evidence you have gathered can be used to prove the ground and may also influence decisions on custody and alimony.
What about my adopted daughter’s custody?
Custody is decided based on the welfare of the child, which is the paramount consideration. Being an adoptive parent gives you the same rights as a biological parent under the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Hindu Adoption and Maintenance Act, 1956. The court will not presume the mother is the natural guardian simply because of gender. Your evidence of the affair may be relevant if it shows that the wife’s conduct is detrimental to the child’s emotional environment.
Advice in Such Cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Don’t let emotions dictate legal decisions. Even if you desperately want to save the marriage, you must simultaneously prepare for the worst. Secure your evidence immediately—digital trails and investigator reports can vanish if the other side becomes cautious.
Avoid confronting the spouse or the third party without legal guidance. Heated arguments can lead to counter-allegations of cruelty or domestic violence. A lawyer who regularly handles cross-border matrimonial disputes will anticipate these risks and guide you on communication.
Applicable Sections of Law
- Section 13(1)(i) of the Hindu Marriage Act, 1955 — Adultery as a ground for divorce.
- Section 26 of the Hindu Marriage Act, 1955 — Orders regarding custody, maintenance, and education of minor children during the pendency of proceedings.
- Section 24 of the Hindu Marriage Act, 1955 — Maintenance pendente lite and expenses of proceedings.
- Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 — Temporary injunctions to restrain the spouse from removing the child from the jurisdiction.
- Guardians and Wards Act, 1890 (Sections 7, 17) — Court’s power to appoint a guardian, with the welfare of the minor as the paramount consideration.
Jurisdiction — Where to File the Case
For an NRI couple, jurisdiction can be tricky. You can file a divorce petition in a family court in India where the marriage was solemnised, where the parties last resided together, or where the wife currently resides. If both parties are living abroad, you may still file in India if the marriage was under Indian law. However, if the wife contests jurisdiction, the court will scrutinise the residential connection. Custody matters concerning the child can be filed in the place where the child ordinarily resides. Since your adopted daughter is in the US, you may need to engage with the Indian court primarily for divorce and then seek mirror orders or recognition of custody in the US. Filing in the right jurisdiction avoids future challenges to the decree.
Limitation Period
For a divorce petition under the Hindu Marriage Act, there is no rigid limitation period from the date of the affair. However, under Section 14 of the Act, no petition can be filed within one year of marriage unless exceptional hardship or depravity is shown. That is not relevant here. Delay in filing can affect the credibility of the ground—if you condone the adultery and continue cohabitation for extended periods, the court might treat it as connivance or condonation under Section 23(1)(b) of the Act. So while there is no strict deadline, you should act within a reasonable time after discovering the affair.
Interim Reliefs Available
You can seek interim maintenance for yourself and the child under Section 24 of the Hindu Marriage Act. The court can also pass temporary custody orders under Section 26, fixing where the child will reside during the proceedings. An injunction under Order 39 CPC can restrain the wife from taking the child out of the jurisdiction without the court’s permission. These orders are crucial because they set the factual status quo. The court can also direct the wife to return the child if she has already removed her. Interim reliefs are often the most decisive stage in a matrimonial dispute; they prevent irreparable harm while the case proceeds.
How Courts Typically Approach Such Cases
Family courts in India no longer treat adultery with moral condemnation as they once did. After decriminalisation, the focus is on whether the marriage has broken down irretrievably. A proven affair is strong evidence of a matrimonial offence, but courts also look at whether the innocent spouse genuinely wants divorce or reconciliation. When a child is involved, the court’s lens shifts to the child’s psychological and physical welfare. The fact that you are willing to work on the marriage might persuade the court to order mediation. But if the other party refuses, the court will not force cohabitation. In cross-border cases, the court will also be mindful of international comity and the risk of child abduction.
Timeline of Legal Process
- Filing of petition — Divorce petition along with interim applications is filed in the family court. (1-2 days)
- Notice to the other party — Court issues notice; service may take 2-4 weeks if the wife is abroad.
- Interim orders — Within 1-3 months, the court may pass orders on custody, maintenance, and injunctions after hearing both sides.
- Mediation / counselling — Mandatory attempt; can last 2-6 months depending on the court’s calendar and the parties’ willingness.
- Evidence and trial — If no settlement, issues are framed, evidence is led; this can take 12-18 months in a contested matter.
- Final judgment — Decree of divorce or dismissal. The entire process in a contested case can take 2-3 years; a mutual consent divorce can be concluded in 6-8 months.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes. Family courts actively push for mediation and conciliation. If both parties agree, they can convert a contested divorce into a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act. This requires a joint petition and a cooling-off period of six months (waivable in some cases). The terms can include custody, visitation, and maintenance. Since adultery is no longer a crime, there is no criminal liability to compound. A well-negotiated settlement saves time, money, and emotional trauma—especially for a child. Even if you initially want reconciliation, you should be prepared to negotiate fair terms through your lawyer if the other side is adamant.
Common Mistakes People Make
- Waiting too long to act after discovering the affair, which can be interpreted as condonation.
- Confronting the spouse or the third party aggressively, leading to counter-complaints of cruelty or domestic violence.
- Deleting digital evidence or failing to preserve the investigator’s report properly.
- Engaging a lawyer without specific experience in cross-border family matters—jurisdictional and custody issues can be mishandled by a general practitioner, weakening your case.
- Posting about the matter on social media or discussing it with common friends, which can prejudice the child’s welfare and backfire in court.
- Ignoring the child’s emotional needs while focusing only on the legal fight. Courts notice this.
FAQs People Normally Have
Can I stop my wife from taking our adopted daughter to India?
If you have a genuine apprehension, you can seek an interim injunction from the Indian family court or the local family court in the US, depending on which court has jurisdiction. The court can direct that the child not be removed without permission.
Will my wife’s affair affect alimony?
Yes. Under Section 25 of the Hindu Marriage Act, the court considers the conduct of the parties while deciding permanent alimony. A spouse guilty of adultery may be denied permanent alimony or receive a reduced amount.
Can I file for divorce in India if I live in the US?
Yes, provided you satisfy the jurisdictional requirements—for instance, the marriage was solemnised in India, or you both last resided in India. Physical presence for every hearing is not always required; your lawyer can appear, and you may be permitted via video conferencing.
Is an adopted child treated differently in custody matters?
No. An adopted child has the same legal rights as a biological child. The court decides custody solely on the welfare principle, not on the mode of entering the family.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India