Adultery in India: What the Law Says & How It Affects Your Case

Got a suspicion of cheating and wondering what the courts will do? In India, adultery isn’t just a moral issue – it has legal consequences that can shape divorce, alimony and even child custody. Below we break down the current law, what you can prove, and how it plays out in family court.

Is adultery still a criminal offence?

Back in 2018 the Supreme Court struck down Section 497 of the Indian Penal Code, so now adultery is no longer a crime. That means you can’t be jailed for it, and the police won’t file a criminal case. However, the decision didn’t erase the fact that adultery can still be a ground for divorce under the Hindu Marriage Act, Special Marriage Act and other personal laws.

Think of it like this: the state won’t punish you, but the family court can still use it to decide who gets what. The court looks at adultery as a breach of the marital contract, which can affect settlement terms.

How adultery impacts divorce, alimony and child custody

If you file for divorce on the basis of adultery, you’ll need to prove it. Evidence can include private investigator reports, emails, messages, photographs or a confession. Remember, the evidence must be legally obtained – no spying or hacking, as that could backfire.When the court is convinced, adultery can tilt the balance in your favor for alimony or property division. For example, the guilty spouse may be ordered to pay a higher maintenance amount, especially if they earned more and squandered money on the affair.

Child custody is trickier. The court’s main concern is the child’s welfare, not the parents’ moral failings. Still, if the adulterous spouse’s behaviour jeopardises the child’s environment – like bringing a new partner into the home frequently – the judge might grant primary custody to the innocent spouse.

Another practical tip: when you’re preparing a case, gather clean, dated proof and keep a timeline. A simple spreadsheet noting dates, types of communication and where you got the evidence helps the lawyer build a solid argument without getting tangled in technicalities.

What if you’re the accused? You can contest the claim by showing the alleged evidence is forged, taken out of context, or obtained illegally. If successful, the court may dismiss the adultery ground, which can save you from a bigger financial hit.

In many cases, couples settle out of court to avoid a public scandal. Mediation can lead to a mutually agreeable division of assets, and often includes confidentiality clauses that keep the affair private.

Bottom line: while adultery isn’t a crime anymore, it still matters a lot in family law. Knowing what proof you need, how it influences alimony, and the impact on child custody can help you make smarter decisions, whether you’re filing or defending.