Is Having an affair a crime in India?

What is adultery?

When a married spouse has a consensual extra marital sexual with another person who is not their spouse is said to have committed the act of Adultery.

It is basically the extra marital affair that is objectionable on social, cultural, religious and legal grounds.

In India, a relationship of marriage is considered as the pious and sacred bond and thus, an act of adultery either by husband or by wife is said to be an infringement of that sacred bond. Other names used for adultery or extramarital affair are infidelity, fornication, fling etc.

Was Adultery punishable in ancient times?

In scriptures of almost all religions adultery has been treated as a heinous crime and the perpetrator when found guilty, has been punished with serious repercussions. In Christianity, adultery was condemned as an immoral sin for both men and women in a letter by Saint Paul to the Corinthians. Jesus himself stated that a man who incurs the worst sin the moment he looks at a woman with a lustful intent. In Hinduism, the Dharmasutra provides adultery as a punishable offence, depending upon the class or caste of the man and woman. In one of the scriptures, it is also provided that the man committing adultery has to observe a life of chastity for 2-3 years.

The Hindu law has been firm and stringent on the law of adultery since the ancient times.

Is having an affair a crime in India?

For the last 150 years, adultery/ having a sexual affair has been treated as a crime under the Indian Penal Code. It was only a few years ago when the honorable Supreme Court in a landmark judgement decriminalized the act of adultery on the ground that it was gender biased as it only punished the wife’s adulterer and not the husband’s adulteress.

The Penal Code defined Adultery under section 497 as, whoever has physical sexual relations with the wife of another man and without the consent of such man, shall be held liable for the offence of adultery.

In short, the man having an extra marital affair with the wife of another man only shall be held liable of the offence of adultery.

Calling out this law as gender biased towards women, the Supreme Court decriminalized the offence of Adultery, but kept it as a ground for divorce.

What to do if my Spouse is having an affair?

Even though Adultery has been decriminalized, and if your partner is having a physical affair with someone, you can seek divorce in the court of law on the ground of adultery.

Marriage is a pious a secret bond which requires both the spouses/parties to be loyal to each other and commit fully to all the responsibilities of the marriage life. If one of the partners sways away from the loyalty and violates the secret bond of marriage, then the Indian courts allows the other person to file for divorce and get separated fully on the grounds of adultery. You cannot get your partner arrested or jailed for it, but it is still considered as a civil evil and can be a ground for separation from your spouse.

How to prove that my spouse is having an affair?

The wife, if sure of the extra marital affair of husband leading to adultery, has to accumulate proof against her spouse. It is very difficult to obtain direct evidence hence circumstantial verification is a solid ground to fight the case for. General evidence of the illegal relationship of husband will not be enough to support the matter, hence the following will be considered as strong case evidence:

  1. Circumstantial proof, where the husband has spent time alone in closed spaces with someone else.
  2. Evidence of birth of his children with someone else.
  3. Any venereal disease contracted by the spouse from someone else.
  4. Any proof of him visiting the house of the other woman
  5. Recordings of admission and confession by the husband
  6. Clear association with the other party

Whatever be the situation, the court makes the verdict benefiting the children of both the parties. When a child is involved, it is advised by the law to solve the problem without dragging each other in to court proceedings; either they can make up and live together or they can break up and file for a divorce.

It is extremely important for a person to consult and engage a lawyer and talk to them about your partner and their illicit relationships with other people. It is imperative for you to disclose any evidence or proof that you have accumulated, to check whether it will stand the test of court of law or not.

How can G.S. Bagga & Associates help you?

Greetings! Marriages are a pious institution and blatant disregard of this institution by committing the act of adultery is a clear ground for both the spouses to get a judicial divorce. In such situations, lawyers play a major role in protecting your interest. The offices of G.S. Bagga & Associates have been experienced in family law and matrimonial issues for over 7 years now. If you’ve found the above information satisfying, you can get in touch with us and can book a free consultation. We would love to support you with our legal expertise in the matter. Feel free to contact us, anytime.