Adultery ceased to be a criminal offence in India in 2018, and the Bharatiya Nyaya Sanhita, 2023 — in force since 1 July 2024 — contains no offence of adultery at all. Decriminalisation, however, changed nothing on the civil side. Adultery remains a complete ground for divorce under the Hindu Marriage Act, 1955, and it continues to matter in maintenance proceedings. This explainer sets out what must be proved, how it is usually proved, and where the ground still bites.
From crime to purely civil wrong
For most of independent India's history, adultery was both a crime and a matrimonial wrong. That dual character ended in 2018, when adultery ceased to be a criminal offence. The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code from 1 July 2024, does not contain any offence of adultery. No FIR can be registered against a spouse or a third party for adultery as such.
Decriminalisation removed the State's power to punish adultery. It did not make adultery legally irrelevant. It remains a full ground for divorce and judicial separation, and it can disentitle a spouse to maintenance in defined circumstances.
The statutory ground: Section 13(1)(i) HMA
Under Section 13(1)(i) of the Hindu Marriage Act, 1955, either spouse may seek divorce on the ground that the other has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Three elements flow from the text:
- Voluntary — the act must be consensual on the respondent's part; an act committed upon the respondent without consent is not adultery by the respondent.
- Sexual intercourse — emotional intimacy, exchanges of messages or an "affair" short of intercourse may amount to cruelty in a given case, but they do not by themselves satisfy this ground.
- After solemnisation — pre-marital relationships, whatever their moral weight, fall outside the provision.
Since the 1976 amendment, a single act is enough. The older scheme, which reserved divorce for a respondent "living in adultery" and allowed only judicial separation for an isolated act, no longer applies. Today the same act supports either remedy.
How adultery is proved
Divorce is a civil proceeding. The petitioner must establish adultery on a preponderance of probabilities — the civil standard — not beyond reasonable doubt. That said, courts treat the allegation as a serious one. Because adultery is committed in secrecy, direct evidence is rarely available, and courts routinely act on circumstantial evidence. The circumstances, however, must be cogent and must lead to a fair inference of adultery; mere opportunity, suspicion or association is not enough.
Evidence typically relied upon includes:
- Hotel and travel records showing the respondent and the third party sharing accommodation, obtained through summons to the establishment where necessary.
- Call detail records and chat or message records. Electronic records must satisfy the certification requirements for electronic evidence under the Bharatiya Sakshya Adhiniyam, 2023, and courts weigh how the material was obtained; records gathered by intrusive or unlawful means raise privacy objections that can affect their use.
- Photographs, videos and witness testimony about conduct, cohabitation or repeated overnight stays.
- Birth of a child during a period when the spouses had no access to each other, sometimes coupled with DNA evidence. Courts order DNA testing sparingly, because the law presumes the legitimacy of a child born during marriage and a test implicates the privacy and status of the child; a test is directed only where a strong prima facie case is first made out.
Adultery under other matrimonial statutes
The ground is not unique to Hindu law. Section 27(1)(a) of the Special Marriage Act, 1954 provides an equivalent ground for marriages solemnised or registered under that Act, and the Divorce Act, 1869 makes adultery a ground of divorce for Christian spouses. The elements and the approach to proof are broadly similar across these statutes.
Condonation: the bar the petitioner must clear
Under Section 23(1)(b) of the Hindu Marriage Act, relief on the ground of adultery can be refused where the petitioner has condoned the act — that is, forgiven it with full knowledge and restored the offending spouse to the marital relationship, typically by resuming cohabitation. Condonation is conditional: it is generally understood to be forfeited if the matrimonial wrong is revived by fresh misconduct. A petitioner who continued ordinary married life for years after learning of the adultery should expect the condonation bar to be squarely in issue.
Where adultery still matters beyond divorce
Maintenance. Under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 — formerly Section 125(4) CrPC — a wife is not entitled to maintenance if she is living in adultery, and under Section 144(5) an existing order may be cancelled on proof of it. The statutory phrase points to a continuing course of adulterous conduct at the relevant time, and the burden of proving it rests on the husband. The same disentitlement logic does not attach to a stray allegation made only to defeat a maintenance claim.
Custody. Adultery by a parent is not, by itself, a disqualification in custody matters. Custody is governed by the welfare of the child, and the conduct of a parent is relevant only to the extent it bears on that welfare — for example, where the child's care or environment is actually affected. A spouse who has failed as a partner has not necessarily failed as a parent, and courts assess the two questions separately.
The practical position today
A spouse who discovers adultery has no criminal remedy against the other spouse or the third party. The available remedies are civil: a petition for divorce or judicial separation under the applicable matrimonial statute, with the evidence marshalled to the civil standard, and resistance to or cancellation of maintenance where the statutory disentitlement is genuinely attracted. Because proof is almost always circumstantial, early and lawful preservation of records — rather than self-help surveillance that may itself be objectionable — usually determines how such a petition fares.
Frequently Asked Questions
Can a spouse still file a police complaint for adultery?
No. Adultery ceased to be a criminal offence in 2018, and the Bharatiya Nyaya Sanhita, 2023 contains no offence of adultery. No FIR can be registered for adultery as such. The remedy of the aggrieved spouse is civil: a petition for divorce or judicial separation, and the conduct may also be raised in maintenance proceedings.
Is a single act of adultery enough for divorce?
Yes. Since the 1976 amendment to the Hindu Marriage Act, Section 13(1)(i) requires only that the respondent had voluntary sexual intercourse with a person other than the spouse after the marriage was solemnised. A single proved act is sufficient; the petitioner does not have to show that the respondent was living in a continuing adulterous relationship.
What standard of proof applies to adultery in a divorce case?
Divorce proceedings are civil, so the standard is preponderance of probabilities, not proof beyond reasonable doubt. In practice, direct evidence is almost never available, so courts act on circumstantial evidence — but that evidence must be cogent and convincing, pointing clearly towards adultery rather than mere suspicion or opportunity.
Does adultery affect maintenance?
It can. Under Section 144(4) and (5) BNSS, formerly Section 125(4) and (5) CrPC, a wife who is living in adultery is not entitled to maintenance, and an existing order may be cancelled on proof of it. The phrase living in adultery points to a continuing course of conduct, which the husband must establish with evidence.