Supreme Court Judgment on Extra-Marital Affairs: Joseph Shine and What It Means Today

Reviewed by the AM Legal team, led by Advocate Anant Misra · Updated October 2026 · 5 min read

Quick answer: In Joseph Shine v. Union of India (2018) the Supreme Court struck down Section 497 IPC and Section 198(2) CrPC, so adultery is no longer a crime in India. An extra-marital affair is still a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, can affect a wife's claim to maintenance, and can be relevant in other civil disputes, but it is not by itself a criminal offence or an automatic bar in custody.

The short answer

Many readers search this topic because a spouse has a relationship outside marriage and they want to know what the law allows. The position today is:

Criminal law: adultery is not an offence. A husband can no longer prosecute his wife's partner, and the Bharatiya Nyaya Sanhita, 2023 contains no adultery offence.
Divorce: adultery remains a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act and Section 27(1)(a) of the Special Marriage Act, if proved.
Other effects: it can matter for maintenance, and indirectly for custody and settlement, but each depends on proof and on the facts.

Joseph Shine v. Union of India (2018)

A five-judge Constitution Bench decided Joseph Shine on 27 September 2018. It struck down Section 497 IPC, which punished a man who had sexual intercourse with another man's wife without his consent, and Section 198(2) CrPC, which allowed only the husband to complain.

The Court found the law unconstitutional because:

it treated the wife as the husband's property: the husband's consent could make the same act lawful;
it punished only the man, and the woman could not be punished or complain, which violated equality (Article 14) and non-discrimination (Article 15);
it ignored her dignity and autonomy (Article 21).

The Court said adultery can still be a civil wrong and a ground for divorce. It also noted that if a spouse commits suicide because of the adultery of the other, the law on abetment may apply. The judgment did not make an extra-marital affair "right"; it said the State should not punish it as a crime.

What an affair means legally today

Area	Position
Criminal case	Not an offence; no FIR can be filed for adultery as such
Divorce	Ground under Section 13(1)(i) HMA and Section 27(1)(a) SMA
Wife's maintenance	A wife proved to be living in adultery may be disqualified from maintenance under Section 144(4) BNSS (old Section 125(4) CrPC)
Child custody	Courts decide on the child's welfare; conduct matters only if it affects the child
Domestic violence	An affair alone is not violence, but related cruelty, abuse or desertion of the household may be
Property	No automatic effect on a person's property rights
Third party	No criminal action; civil remedies are very limited

Proving adultery in a divorce case

The Hindu Marriage Act requires "voluntary sexual intercourse" with someone other than the spouse after marriage. Courts accept that direct proof is rare and that adultery can be inferred from circumstances such as opportunity, inclination, travel or hotel records, photographs and messages. The standard in a matrimonial case is a preponderance of probabilities, not beyond reasonable doubt, as the Supreme Court held in Dastane v. Dastane (1975), but a serious charge such as adultery needs clear and reliable evidence.

Practical points:

Evidence must be lawful and authentic. Electronic records need the proper certificate; see submitting electronic evidence in Delhi family courts. In 2025 the Supreme Court in Vibhor Garg v. Neha allowed recorded spousal conversations in matrimonial proceedings, but courts still test authenticity and relevance.
Do not make reckless allegations. Unproved accusations of adultery can themselves be treated as mental cruelty against the accuser. See false accusations as cruelty.
Beware of condonation. If you knew and carried on normal married life, the court may refuse relief under Section 23 HMA.

If you suspect or know of an affair

Pause before acting. Write down what you know, with dates; do not confront in a way that creates a safety risk.
Gather evidence lawfully. Do not hack accounts or trespass; illegal methods can create criminal liability for you.
Decide your goal. Reconciliation, separation, divorce or settlement each need a different path. See mutual vs contested divorce and judicial separation vs divorce.
Secure your finances and children. See alimony and maintenance laws and child custody after divorce.
Take legal advice early. Timing matters because of condonation and limitation.

If you are accused of having an affair

An accusation is not proof. Keep communication respectful, preserve your own records, and avoid retaliatory complaints. If your spouse files for divorce on adultery, you can defend, deny, or negotiate a mutual settlement. Related reading: cross-allegations of cruelty, desertion and adultery and maintenance denied under Section 125 CrPC and Section 144 BNSS.

Debate after the judgment

Some argue that removing the offence weakened the protection of marriage, and a parliamentary committee in 2023 suggested a gender-neutral adultery offence for the new Sanhita, but the Sanhita as enacted does not include one. Others say that private choices should be left to families and civil law. For litigants, the practical effect is that adultery is now dealt with in civil proceedings, mainly divorce and maintenance, and not in a criminal court.

Myths and facts

Common belief	What the law says
Adultery is still a crime	No. Joseph Shine (2018) struck down Section 497 IPC, and the BNS has no such offence
An affair automatically decides the divorce	No. You must prove the ground and the court also checks bars such as condonation under Section 23 HMA
A wife loses maintenance the moment an affair is alleged	No. The bar applies only if she is proved to be living in adultery
Any secret recording will be accepted	No. Courts test authenticity, relevance and the certificate for electronic records
The other person can be sued for damages	Remedies against a third party are very limited in Indian law
An affair means the other spouse automatically gets custody	No. Custody follows the welfare of the child, not the parents' conduct as such

How these cases move in a Delhi family court

In practice, a divorce petition based only on adultery is hard to prove, so most petitioners also plead cruelty or desertion where the facts support it. Courts in Delhi usually refer matrimonial disputes to mediation first, and many cases end in a mutual-consent settlement even after allegations have been made; see Delhi family courts and Samadhan mediation and contested vs mutual divorce.

If the case continues, the evidence stage involves affidavits and cross-examination, where private messages and records are tested. Interim maintenance for a spouse and children can be decided while the case is pending, and an allegation alone does not stop it. Because these proceedings are sensitive, you can ask the court to hear the matter in camera.

Before you file, ask your lawyer three questions: What exactly can I prove? Which ground fits best? What is the risk if I cannot prove it? A cautious petition is usually better than one that leans on accusations you cannot support. Our divorce lawyers in Delhi and matrimonial lawyers can review your facts in one meeting.

Frequently asked questions

Is adultery a crime in India now?

No. Joseph Shine (2018) struck down Section 497 IPC, and the BNS has no adultery offence.

Can I still get a divorce on the ground of adultery?

Yes. Adultery remains a ground under Section 13(1)(i) HMA and Section 27(1)(a) SMA if you can prove it.

Can a husband take action against his wife's partner?

There is no criminal remedy for adultery. Civil remedies are very limited; take legal advice on the facts.

Does an extra-marital affair stop a wife's maintenance?

A wife who is proved to be living in adultery may be disqualified from maintenance under Section 144(4) BNSS, but it must be proved and the court looks at the facts.

Does an affair affect child custody?

Only if it affects the child's welfare. Courts decide custody on the best interests of the child.

Can I use call recordings or chats as evidence?

They can be used if relevant and properly proved, including the certificate for electronic records, but courts examine them closely.

What if my spouse dies by suicide because of the affair?

The Court in Joseph Shine noted that abetment law may apply in such a case; this depends on the facts and requires a lawyer's advice.

Sources and further reading

Related guides

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This page is general legal information for readers in India, not legal advice, and no lawyer-client relationship is created by reading it. Laws and court practice change, so confirm the current position with a qualified advocate before acting. AM Legal, 2589 Hudson Lane, GTB Nagar, Delhi 110009.