In Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017, decided on 27 September 2018, a Constitution Bench of five judges struck down Section 497 of the Indian Penal Code and the complaint mechanism in Section 198(2) CrPC, ending adultery's career as a criminal offence in India. The Bharatiya Nyaya Sanhita, 2023 contains no equivalent offence. But the Court was equally clear about the civil side: adultery, it observed, is better left as a ground for divorce — and so it remains. Under Section 13(1)(i) of the Hindu Marriage Act, 1955, voluntary sexual intercourse with any person other than the spouse, after solemnisation of the marriage, dissolves it at the instance of the other spouse. The forum has changed from the Magistrate to the Family Court; the stakes have changed from imprisonment to decree; the proof, as ever, is circumstantial.
What Joseph Shine actually decided
Section 497 IPC criminalised adultery in a form that treated the wife as her husband\'s property: only a man could be the offender, only a husband could complain, and a husband\'s consent to the act removed the offence altogether. The Constitution Bench — Chief Justice Dipak Misra with Justices Nariman, Khanwilkar, Chandrachud and Malhotra — struck the provision down as violative of Articles 14, 15 and 21, overruling the earlier decisions that had sustained it. Section 198(2) CrPC, the complaint gateway, fell with it. The judgment is a landmark of dignity and equality jurisprudence; what it is not, and never claimed to be, is a charter of immunity within marriage.
The civil consequences that survive
Proof: inclination and opportunity
Matrimonial courts decide these cases on preponderance of probabilities, not proof beyond reasonable doubt, and they have always accepted that adultery is proved circumstantially. The classical formulation looks for evidence of mutual inclination coupled with opportunity — sustained private association, shared accommodation, travel bookings, photographs and, in the modern docket, call detail records, chats and location data. Electronic evidence must be proved the way the Evidence Act — now the Bharatiya Sakshya Adhiniyam, 2023 — requires, with the certificate for electronic records; privately obtained material raises admissibility and privacy questions that should be anticipated rather than discovered at trial. Bald suspicion, anonymous letters and the testimony of chance witnesses rarely carry a petition alone.
Defending the allegation
- Test the pleading: the petition must allege the act with such particulars of time, place and person as the petitioner can reasonably give; a roving allegation invites dismissal and can itself amount to cruelty if reckless.
- Condonation: resumption of cohabitation with knowledge of the matrimonial offence condones it; Section 23(1)(b) HMA obliges the court to examine condonation even if not pleaded.
- Counter-consequences: an unproved allegation of adultery, persisted in at trial, is itself recognised as grave mental cruelty and has founded decrees in favour of the accused spouse.
- Mind the co-respondent rule: objections to non-impleadment of the named paramour should be raised early, not after evidence.
Practice note: Since 2018, the adultery ground is litigated free of the shadow of criminal complaint leverage — which has, if anything, made pleadings more honest. Petitioners should plead only what they can support; respondents should remember that a false denial collapses faster than a candid case on condonation or connivance.
Frequently Asked Questions
Is adultery still relevant anywhere in criminal law?
As an offence against the general public, no — Section 497 IPC is gone and the BNS has no counterpart. Joseph Shine itself was later clarified in review proceedings in relation to the armed forces' separate disciplinary framework, which operates under special legislation; for civilians, the consequences of adultery are entirely civil and matrimonial.
What must be proved for divorce on the adultery ground?
That the respondent, after the marriage, had voluntary sexual intercourse with a person other than the petitioner. A single act suffices under Section 13(1)(i). Direct evidence is almost never available, so courts act on circumstantial evidence of inclination and opportunity — hotel records, travel together, electronic communications, photographs, and the birth of a child disproved by DNA where that issue properly arises.
Does adultery affect maintenance and custody?
It can. Living in adultery is a statutory disqualification for maintenance under Section 125(4) CrPC / Section 144(4) BNSS, and conduct remains a discretionary factor in permanent alimony under Section 25 HMA. In custody, the parent's relationship conduct matters only insofar as it bears on the child's welfare — adultery does not by itself disentitle a parent.
Must the alleged paramour be made a party?
Practice rules of several High Courts, including long-standing matrimonial rules, require the adulterer to be impleaded as a co-respondent in a petition on this ground unless excused — such as where the person's identity is unknown. Failure to implead, or to seek exemption, is a recurring technical objection that can derail an otherwise sound petition.