Introduction
Extramarital relationships have long been a subject of moral, social, and legal debate in India. While society often views such relationships with disapproval, the legal position has undergone a significant transformation in recent years. A crucial question arises: Is an extramarital affair illegal in India today?
The answer requires an understanding of criminal law, constitutional principles, and family laws.
Extramarital Affair and Criminal Law
For a long time, adultery was a criminal offence in India under Section 497 of the Indian Penal Code (IPC). However, the legal landscape changed dramatically in 2018.
Joseph Shine v. Union of India (2018)
In this landmark judgment, a Constitution Bench of the Supreme Court struck down Section 497 IPC as unconstitutional. The Court held that:
- Adultery is not a crime.
- The provision violated Article 14 (Equality) and Article 21 (Right to Life and Personal Liberty).
- A woman cannot be treated as the property of her husband.
- Criminal law should not intrude into the private sphere of marriage.
Therefore, an extramarital affair is NOT a criminal offence in India.
Is Extramarital Affair Completely Legal?
While adultery is no longer a crime, this does not mean it has no legal consequences. The distinction between criminal liability and civil consequences is crucial.
Impact on Matrimonial and Family Laws
An extramarital affair can still have serious civil and matrimonial repercussions:
1. Ground for Divorce
Under various personal laws:
- Hindu Marriage Act, 1955
- Special Marriage Act, 1954
- Divorce laws applicable to other communities
Adultery remains a valid ground for divorce. A spouse can seek dissolution of marriage if the other spouse is proven to be in an extramarital relationship.
2. Maintenance and Alimony
Courts may consider extramarital conduct while deciding:
- Permanent alimony
- Interim maintenance
Although not an absolute bar, adulterous conduct can influence the court’s discretion.
3. Child Custody
An extramarital affair by itself does not disqualify a parent from custody. However, if the conduct is shown to be harmful to the child’s welfare, courts may take it into account.
Extramarital Affair and Other Criminal Laws
While adultery itself is not punishable, related conduct may attract criminal liability, such as:
- Abetment of suicide (Section 306 IPC / BNSS equivalent), if the affair leads to extreme mental cruelty.
- Domestic violence under the Protection of Women from Domestic Violence Act, 2005.
- Criminal breach of trust or fraud, if deception or financial exploitation is involved.
Thus, the legality depends on facts and surrounding circumstances.
Constitutional Perspective
The Supreme Court emphasized:
- Autonomy, dignity, and privacy of individuals.
- Marriage does not curtail an individual’s fundamental rights.
- The role of criminal law is not to enforce moral policing.
However, the Court also clarified that marriage remains a sacred institution, and civil law remedies continue to protect spouses.
Conclusion
An extramarital affair is legal in India in the sense that it is not a criminal offence.
However, it is not legally inconsequential.
Such relationships can:
- Lead to divorce
- Affect maintenance and custody
- Trigger other civil or criminal proceedings depending on conduct
In essence, Indian law no longer punishes adultery with imprisonment, but it still recognizes the serious impact such relationships can have on marital and family life. In a society governed by constitutional morality rather than social morality, the law draws a clear line:
Private conduct may be immoral to some, but it is not always illegal.
Footnotes
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Joseph Shine v. Union of India, (2019) 3 SCC 39 – Supreme Court of India struck down Section 497 of the Indian Penal Code, 1860, decriminalising adultery and holding it unconstitutional for violating Articles 14, 15 and 21 of the Constitution of India.
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Section 497, Indian Penal Code, 1860 (prior to being declared unconstitutional) – Provision criminalising adultery, treating the husband as the aggrieved party and denying agency to women.
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Articles 14 and 21, Constitution of India – Guarantee equality before law and protection of life and personal liberty, relied upon by the Supreme Court while decriminalising adultery.
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Section 13(1)(i), Hindu Marriage Act, 1955 – Recognises adultery as a statutory ground for divorce.
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Section 27(1)(a), Special Marriage Act, 1954 – Provides adultery as a ground for dissolution of marriage.
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K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 – Supreme Court recognised that mental cruelty, including extramarital relationships, can be a ground for divorce.
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Protection of Women from Domestic Violence Act, 2005 – Extramarital relationships may constitute “emotional abuse” depending on facts and circumstances.
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Section 306, Indian Penal Code, 1860 – Abetment of suicide; may be attracted in exceptional cases where an extramarital affair leads to extreme mental cruelty.
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Vishaka v. State of Rajasthan, (1997) 6 SCC 241 – Emphasised dignity, autonomy and constitutional values, forming part of the broader jurisprudential basis for later privacy-centric decisions.
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Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 – Reinforced the principle that criminal law should not enforce social morality, a rationale echoed in the adultery judgment.
