If you are stuck in such a situation, here is what to do.

Mr. Rajeev, a resident of a quiet neighbourhood in Prayagraj, recently discovered that his wife, Mrs. Kavita, was involved in a relationship with another man, Mr. Alok. When confronted, both Kavita and Alok admitted to their relationship but firmly denied that it involved any sexual intercourse. Alok further claimed that he was unaware that Kavita was married and insisted that she had initiated all communication. Kavita also confessed to this. A distressed Rajeev now seeks to understand his legal options, specifically whether he can file a police case and have Alok imprisoned for his actions.

Advice in such cases

Navigating the emotional turmoil of infidelity is difficult, and understanding the legal landscape is crucial. In India, the legal standing of adultery has undergone a significant change.

• It is important to understand that adultery is no longer a criminal offense in India. The Supreme Court decriminalized it in 2018, meaning a husband cannot file a criminal complaint to have his wife’s partner arrested or imprisoned.
• While it is not a crime, adultery remains a valid and strong ground for seeking a divorce in a civil court.
• The focus of the legal process shifts from punishing the third party to dissolving the marriage, if that is what the aggrieved spouse desires.
• 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 of 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.

Applicable Sections of Law

The primary legal framework concerning this issue has evolved significantly. Previously, Section 497 of the Indian Penal Code (IPC) criminalized adultery, but this section was struck down by the Supreme Court of India in the landmark case of Joseph Shine v. Union of India (2018) for being unconstitutional.

The new criminal code, the Bharatiya Nyaya Sanhita (BNS), 2023, which has replaced the IPC, does not contain any provision that re-criminalizes adultery. Therefore, there is no criminal law under which Mr. Alok can be prosecuted.

However, adultery is a ground for divorce under various personal laws, such as:

• Section 13(1)(i) of the Hindu Marriage Act, 1955, explicitly states that a marriage may be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

If you are the complainant

If you are in Mr. Rajeev’s position, your legal recourse is civil, not criminal. Here are the steps you should consider:

• Your primary option is to file a petition for divorce in the appropriate Family Court on the ground of adultery.
• The burden of proof will be on you to establish that your spouse engaged in voluntary sexual intercourse with another person. The admission of a “relationship” is a significant piece of evidence, but proving sexual intercourse might require more.
• Gather all possible evidence that can substantiate your claim in court. This can include text messages, call records, photographs, or witness testimonies.
• 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 of 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 the victim

As the aggrieved spouse, it is essential to protect your legal rights and emotional well-being.

• Acknowledge that the law provides a remedy for dissolving the marriage, which may be the necessary step for moving forward.
• Focus on building a strong case for divorce if you choose to pursue it. Document every piece of evidence meticulously.
• Understand that the legal proceedings will focus on the dissolution of the marriage and related matters like alimony and child custody, not on penalizing the third person involved.
• 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 of 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.

How the police behave in such cases

Since adultery is not a criminal offense, the police have no authority to intervene in such matters. If you approach a police station to file a complaint against your wife’s partner for adultery, they will not register a First Information Report (FIR). They will rightfully inform you that this is a civil matter and that your recourse lies with the Family Court. The police will not conduct any investigation, make any arrests, or take any action against the third party involved in the relationship.

FAQs people normally have

Can I send the man who had an affair with my wife to jail?
No. Adultery is not a crime in India, and therefore, no criminal proceedings, including imprisonment, can be initiated against the person your wife had a relationship with.

What is the new law on adultery under the BNS?
The Bharatiya Nyaya Sanhita (BNS), 2023, does not have any section that criminalizes adultery. The legal position remains the same as it was after the 2018 Supreme Court judgment – it is not a criminal offense.

Can I file a case against my wife for adultery?
You cannot file a criminal case against your wife. Your only legal remedy is to file for divorce in a Family Court, citing her adultery as the ground.

Is an admission of a “relationship” enough to get a divorce?
An admission of a relationship is strong evidence. However, for a divorce on the grounds of adultery, the law requires proof of “voluntary sexual intercourse.” While direct proof is rare, courts often rely on circumstantial evidence that strongly suggests intimacy. The admission can be a key part of this circumstantial evidence.

What evidence is required?

To prove adultery in a divorce case, you need to provide evidence that leads the court to believe, on a preponderance of probabilities, that sexual intercourse took place. Direct evidence is often unavailable. Therefore, courts accept strong circumstantial evidence, such as:

• Photographs or videos showing the spouse and the third party in a compromising position.
• Electronic evidence like text messages, emails, or social media chats of an intimate nature.
• Testimony of witnesses who may have seen them together at hotels or other private places.
• Hotel bills, travel records, or rent agreements for a place where they met.
• Any admission made by the spouse, either to you or to a third party.

How long will the investigation take?

There is no police investigation in such cases as it is not a crime. The timeline refers to the duration of the divorce proceedings in the Family Court. A contested divorce case in India, where one party disputes the claims of the other, can be a lengthy process. It can take anywhere from two to several years to get a final decree, depending on the complexity of the case, the evidence presented, and the caseload of the particular court.

Advocate Sudhir Rao, Supreme Court of India