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 after the Supreme Court struck down Section 497 of the Indian Penal Code in the 2018 Joseph Shine case. The current law — under the new Bharatiya Nyaya Sanhita (BNS), 2023 — does not criminalise adultery at all. So the question of a gender-neutral adultery law is now legally moot, though the debate around marital fidelity and civil remedies remains alive in family law.
Key Facts of the Case
- The client, Mr. Arjun Mehta, was initially served with a legal notice accusing him of adultery under the old IPC framework before the law was struck down.
- The matter was filed in a family court in Indore, Madhya Pradesh, in early 2024.
- The client approached the Chamber of Advocate Sudhir Rao after his previous counsel failed to properly raise the constitutional invalidity of the adultery provision as a defence.
- Advocate Sudhir Rao and his office argued that, following the Supreme Court’s judgment in Joseph Shine v. Union of India (2018), adultery is no longer an offence — the provision was struck down as unconstitutional.
- The court dismissed the criminal complaint, closing the matter in the client’s favour.
- Advocate Sudhir Rao’s expertise in constitutional criminal law — specifically in understanding the impact of landmark Supreme Court rulings — helped secure this swift dismissal.
The Direct Legal Answer
Does India need a gender-neutral penal law for marital infidelity?
Not anymore. The old Section 497 IPC criminalised adultery only when committed by a man with another man's wife — making it inherently gender-biased. The Supreme Court in Joseph Shine struck it down entirely, holding that it violated Articles 14 (equality), 15 (non-discrimination), and 21 (personal liberty) of the Constitution. The new BNS, 2023, does not contain any provision on adultery. So the law has effectively decriminalised the act altogether.
How does the Constitution and current legal framework address adultery today?
The Constitution now protects individual autonomy in marital relationships. Adultery remains a ground for divorce under personal laws (like the Hindu Marriage Act, Special Marriage Act, etc.) — that is a civil remedy, not a criminal one. There is no penal provision for adultery. So the current legal framework treats marital infidelity as a matrimonial wrong, not a crime. That’s the settled position.
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.
If you are facing a criminal complaint that invokes an outdated or unconstitutional law — like the old adultery provision — your first step is to identify whether the law still stands. An advocate with experience in constitutional criminal litigation can instantly spot these defences. General practitioners often miss them.
Second, if the matter is purely civil — say, a divorce petition citing adultery as grounds — you need a family law specialist. The evidence required and the legal thresholds are entirely different from criminal procedures. Don't mix the two.
Applicable Sections of Law
For criminal matters: The old Section 497 of the Indian Penal Code, 1860, which criminalised adultery, was struck down in its entirety by the Supreme Court in Joseph Shine v. Union of India (2018). The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC, contains no provision on adultery. So there is no applicable criminal section.
For civil matters: Adultery remains a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955, and equivalent provisions under the Special Marriage Act, 1954, and personal laws. Section 10 of the Indian Divorce Act, 1869, also recognises adultery as a ground. These are civil grounds, not penal offences.
Punishment and Penalties
There is no criminal punishment for adultery in India today. The old provision carried a maximum of five years imprisonment, a fine, or both. That provision no longer exists.
For the civil side: adultery as a ground for divorce does not attract any penal punishment. It simply entitles the aggrieved spouse to seek dissolution of marriage. There is no fine or imprisonment involved.
The offence under the old law was non-cognizable, bailable, and compoundable — but all that is now irrelevant.
Jurisdiction — Where to File the Case
Since adultery is no longer a criminal offence, no police station has jurisdiction to register an FIR for it. Any complaint filed will be dismissed as legally invalid.
For civil divorce proceedings citing adultery, the jurisdiction lies with the Family Court (or District Court, if no Family Court exists) in the place where:
- The marriage was solemnised; or
- The respondent (the spouse against whom the petition is filed) resides; or
- The parties last resided together.
Filing in the wrong court can delay matters by months — so get jurisdictional advice from a family law specialist.
What if Police Refuse to File FIR?
If someone tries to file an FIR for adultery, the police should refuse — the law doesn't exist. If they register it anyway, here's what to do:
- Approach the Superintendent of Police under Section 173(4) BNSS, pointing out that no offence is made out.
- File a private complaint before a Magistrate under Section 175(3) BNSS, seeking dismissal of the FIR.
- If the police persist, file a writ petition before the High Court for quashing the FIR under Section 528 BNSS.
- In the meantime, apply for anticipatory bail under Section 482 BNSS — though this is rarely needed in such cases.
Rights of the Accused
If an FIR for adultery is lodged (improperly), the accused has the following rights:
- Right to remain silent — self-incrimination is barred under Article 20(3) of the Constitution.
- Right to legal representation under Article 22(1) — free legal aid is available if needed.
- Right to be produced before a Magistrate within 24 hours of arrest (Article 22(2)).
- Right to a copy of the FIR and to know the grounds of arrest.
- Right to apply for bail immediately, given that the alleged offence is bailable (under the old law) and now non-existent.
Bail Provisions
Since adultery is no longer an offence, bail is not technically applicable. But if someone is arrested under a mistaken FIR:
- The offence under the old law was bailable — so bail is a matter of right.
- Anticipatory bail under Section 482 BNSS can be sought to prevent arrest.
- Regular bail under Section 480/483 BNSS would be granted almost automatically if arrest occurs.
- Bail conditions typically include a personal bond and surety — nothing onerous.
Bail strategy here is simple: immediately move the court to quash the FIR itself, rather than just seeking bail.
Quashing of FIR / Case
The High Court has inherent powers under Section 528 BNSS to quash an FIR or criminal proceedings. For adultery cases, quashing is almost inevitable because:
- No prima facie offence exists — the relevant law has been struck down.
- The proceedings amount to an abuse of the court process.
- If the parties have compromised (e.g., in a family settlement), that is an additional ground.
Quashing is the most efficient strategy here. It avoids lengthy trial and the stigma of a pending criminal case. A petition under Section 528 BNSS before the High Court is the direct route.
If You Are the Victim
If you are the spouse who has been wronged by an adulterous partner:
- Do not file a criminal complaint — it won't work. The law does not recognise adultery as a crime.
- Consult a family lawyer about filing for divorce on the ground of adultery, if you have proof.
- Preserve evidence — call records, messages, photographs, or witness testimony — that clearly establishes the relationship.
- Consider civil remedies like claiming damages for mental cruelty, if permissible under your personal law.
- Stay off social media with any posts about the matter — it can harm your case in court.
Documents You Must Keep Ready
- Identity proof (Aadhaar, PAN, Voter ID) of both spouses.
- Marriage certificate or proof of marriage (e.g., wedding photographs, invitation card).
- Any evidence of the adulterous relationship — call logs, WhatsApp chats, emails, photographs, witness affidavits.
- Bank statements or financial records if there is a claim for maintenance or damages.
- Previous legal notices or court orders, if any.
- Correspondence between you and your spouse regarding the matter.
What Evidence Is Required?
For civil divorce proceedings on adultery grounds, evidence must be clear and convincing:
- Direct evidence: photographs, videos, or eyewitness testimony showing the adulterous act (rare and difficult to obtain).
- Circumstantial evidence: frequent late-night calls, secret meetings, shared hotel bookings, gifts exchanged — enough to create a strong inference.
- Admission by the spouse (oral or written) — this is powerful.
- Call records and message transcripts — authenticated.
- Credit card or bank statements showing expenses incurred with the paramour.
Primary evidence (documents, admissions) is stronger than secondary evidence (hearsay, speculation). Courts require a higher standard of proof in adultery cases because of the social stigma involved.
How Courts Typically Approach Such Cases
Family courts approach adultery divorce petitions with caution. They know the evidence is often circumstantial. They look for a clear preponderance of probability — not proof beyond reasonable doubt. If the respondent denies the allegation, the court examines the totality of circumstances. Courts also consider whether the petition is motivated by malice or vengeance. A credible, consistent narrative supported by documentary evidence has a good chance of success. But the court will not grant divorce on suspicion alone.
Timeline of Legal Process
- Notice to spouse: 1-2 months after filing the divorce petition.
- Written statement by spouse: Usually within 30-45 days of receiving notice.
- Framing of issues: Next hearing — typically within 2-3 months.
- Evidence stage: 6-12 months — both sides present documents and witness testimony.
- Arguments: 2-3 hearings spread over 1-2 months.
- Judgment: Reserved for 1-3 months after arguments.
- Appeal: If either party is aggrieved, an appeal lies to the High Court — takes 12-18 months more.
Total duration: anywhere from 18 months to 3 years for the divorce decree, depending on court backlog and cooperation.
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. Many adultery-based divorce petitions are settled through mutual consent during the proceedings. The parties can file a joint petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act after separation. Mediation and conciliation are actively encouraged by family courts. A compromise deed can be executed, and the petition converted to mutual consent — avoiding a contested trial. Lok Adalats also handle matrimonial disputes for amicable resolution. Settlement is almost always faster, cheaper, and less emotionally draining than a full-blown trial. But if the adultery claim is contested, settlement may not be possible.
Common Mistakes People Make
- Filing a criminal complaint for adultery — it's a dead law. Wastes time and money.
- Destroying or deleting evidence (messages, photos) before consulting a lawyer. Once gone, it cannot be recovered.
- Posting about the matter on social media — hostile content can be used against you in court as evidence of malice.
- Engaging an advocate without domain-specific experience in family or constitutional criminal law. Adultery cases involve unique procedural and evidentiary nuances — a general practitioner may not know how to correctly invoke the Joseph Shine judgment or handle civil divorce evidence standards. Choosing a specialist ensures faster, better outcomes.
- Signing documents or settlement agreements without independent legal review. Spouses often feel pressured and sign away rights.
- Delaying action — limitation periods for filing divorce petitions exist, and evidence weakens with time.
FAQs People Normally Have
Is adultery still a crime in India?
No. The Supreme Court struck down Section 497 IPC in the Joseph Shine case (2018). The new BNS, 2023, does not contain any adultery provision. It is not a criminal offence.
Can I go to jail for committing adultery?
No. There is no criminal provision left. You cannot be arrested, charged, or imprisoned for adultery.
Can I still file for divorce on the ground of adultery?
Yes. Adultery remains a valid ground for divorce under personal laws and the Special Marriage Act. This is a civil remedy, not criminal.
What evidence do I need for an adultery divorce?
Circumstantial evidence like call records, messages, hotel bookings, photographs, and admissions. Direct evidence (e.g., catching in the act) is rare and not strictly required. A credible narrative is often enough.
Does the new BNS 2023 have any provision on adultery?
No. The BNS, 2023, which replaced the IPC from July 2024, contains no section on adultery. The law has completely decriminalised it.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India