Adultery

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Introduction
Adultery — in the plain, descriptive sense — is voluntary sexual intercourse between a married person and a person who is not that married person’s spouse. Despite its apparent simplicity, the legal status of adultery in India has undergone a fundamental shift in the last decade. Once treated as a criminal offence under the Indian Penal Code, adultery now occupies primarily a space in matrimonial and civil law: a ground for dissolution of marriage and a factor courts may take into account when deciding ancillary reliefs (custody, maintenance, partition of matrimonial assets, etc.). For practitioners, the change from a criminal to a civil character for consensual adult extramarital sexual relations raises immediate evidentiary, procedural and strategy questions — how to plead, what to prove, how to preserve electronic proof, and how the conduct impacts reliefs sought by clients.

Core Legal Framework
– Indian Penal Code, 1860
– Section 497 (historical): Prior to 2018, s.497 IPC criminalised adultery. Its operative part read in substance that a man who has sexual intercourse with the wife of another man, without the consent or connivance of that man, was guilty of the offence of adultery and liable to imprisonment for up to five years, fine or both. The provision — and related procedural bars in the Code of Criminal Procedure — was held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, (2018) 2 SCC 189. The effect: consensual sexual intercourse between adults, even if extramarital, is no longer a criminal offence under s.497.
– Consequence: There is no longer criminal liability under s.497 for consensual adultery; however, criminal law still applies where other offences are made out (e.g., sexual exploitation of a minor, trafficking, non-consensual acts).

  • Constitution of India

  • Articles 14, 15 and 21 featured centrally in the Supreme Court’s judgment in Joseph Shine, which read down s.497 as violative of equality (sex discrimination), dignity and personal autonomy. The judgment also drew on the foundational right to privacy as articulated in Puttaswamy v. Union of India, (2017) 10 SCC 1.

  • Personal / Matrimonial Laws (civil consequences)

  • Hindu Marriage Act, 1955 — Section 13(1)(i): Adultery is expressly a ground for divorce: “that the respondent has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.” (Section text to be quoted in pleadings — careful attention to exact wording.)
  • Special Marriage Act, 1954 — contains corresponding provisions making adultery a ground for divorce (see the relevant grounds in Section 27).
  • Indian Divorce Act, 1869 (for Christians), Parsi Marriage and Divorce Act, and personal laws applicable to other communities also recognise adultery (wording and section numbers vary by statute).
  • Indian Evidence Act, 1872 — rules governing admissibility of documents and electronic evidence (in particular Section 65B and related jurisprudence) are critical when intending to rely on electronic communications as proof of adultery.

Practical Application and Nuances
How adultery arises in practice
– Matrimonial litigation: Most commonly, adultery is invoked as a ground for divorce, or as corrosive conduct relied upon to obtain ancillary reliefs — custody, access, maintenance pendente lite, permanent alimony, division of matrimonial assets, or impact on permanent alimony/maintenance quantum.
– Domestic proceedings and protection orders: While adultery per se is not a criminal offence after Joseph Shine, extramarital conduct can be pleaded as corroborative material in applications under the Protection of Women from Domestic Violence Act (PWDVA) where cruelty, harassment, or emotional/psychological abuse is alleged.
– Civil torts/remedies: Unauthorized publication or dissemination of intimate images collected in the course of adulterous conduct can attract injunctive relief and damages; criminal remedies may exist under the Information Technology Act or provisions addressing voyeurism/obscene publication.

Evidentiary approach — what to prove and how
– Standard of proof: Divorce proceedings require proof on the preponderance of probabilities (civil standard). However, courts require clear and cogent evidence to establish sexual intercourse with a third party — mere suspicion, innuendo or letters of a flirtatious nature usually do not suffice.
– Direct evidence: Confession by the respondent, eyewitness testimony (rare), contemporaneous admissions in writing or recorded statements.
– Circumstantial evidence: Repeated hotel bookings, contemporaneous WhatsApp/text messages indicating meetings and sexual intimacy, photographs or videos, financial transactions, GPS/location data, receipts, emails, flight/hotel itineraries. Circumstantial evidence must form a chain that excludes reasonable hypotheses of innocence.
– Electronic evidence: Any electronic record must meet the admissibility requirements of Section 65B of the Evidence Act (certificate, chain of custody, source authentication). Failure to file proper 65B compliance can render pivotal electronic communications inadmissible.
– Forensic proof: DNA evidence can be powerful but requires lawful collection and the cooperation of the party whose DNA is sought (or a court order). Courts scrutinise the mode of collection (consent, chain of custody, forensic laboratory accreditation).
– Witness management: Witnesses who are the third party or hotel staff can be hostile or difficult to procure. Private investigators and discovery-oriented pleadings (interrogatories, production of documents, depositions where permitted) become important tools.
– Defences and bars:
– Condonation (forgiveness after knowledge): If the petitioner has forgiven and resumed cohabitation, courts may refuse divorce on the ground of adultery.
– Collusion and connivance: If the parties have colluded to fabricate adultery or the petitioner has connived with the respondent, courts will deny relief.
– Recrimination (mutual guilt): Historically a bar; modern courts often look past mutual misconduct and focus on whether continuing the marriage is reasonable.
– Time and laches: Unreasonable delay in raising the ground of adultery can weaken the case.

Concrete examples (typical fact patterns and legal handling)
– Example 1 — petitioner has WhatsApp chat and hotel bills: Preserve originals; obtain Section 65B certificate for the electronic record; produce hotel invoices and bank statements; seek interim custody/maintenance while trial proceeds.
– Example 2 — alleged repeated relationship with colleague: seek e-mail, roster, office entry/exit logs; call for discovery under relevant procedural rules; seek witness statements (colleagues/hotel staff); anticipate argument of consensual adult privacy — be ready to show how conduct impacts marital breakdown and reliefs sought.
– Example 3 — circulation of intimate images by third party: immediately file for injunction and damages; seek takedown orders under IT Act; consider criminal complaints for non-consensual dissemination; seek expedited interim relief.

Landmark Judgments
– Joseph Shine v. Union of India, (2018) 2 SCC 189
– Holding: Section 497 IPC (and parts of s.198 CrPC insofar as it permitted only the husband to initiate prosecution) are unconstitutional. The Court held that criminalising consensual sexual intercourse between adults violates Articles 14, 15 and 21. Adultery, as defined by s.497, treated married women as property and was incompatible with constitutional equality and dignity. The consequence: adultery ceased to be a criminal offence; it remains a ground for civil action.
– Practical import: Practitioners must no longer pursue criminal prosecutions under s.497; the remedy is in the civil/matrimonial sphere. Arguments invoking privacy, autonomy and dignity have become central.

  • Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1
  • Holding: Recognised the right to privacy as a fundamental right under Article 21; this jurisprudence underpinned subsequent decisions (including Joseph Shine) that emphasise sexual autonomy and private consensual sexual relations between adults.
  • Practical import: Challenges to the admissibility of private/intimate material, claims for privacy breaches, and damages for dissemination of intimate images must be argued against this constitutional backdrop.

Strategic Considerations for Practitioners
For petitioners (client seeking divorce/relief because of adultery)
– Plead with particularity: name the third person, provide dates/places of meetings if possible, and attach copies of documentary proof. Ambiguity permits defence of mere suspicion.
– Preserve and authenticate electronic evidence early: issue notices for preservation, apply for interim injunctions to prevent destruction, follow Section 65B requirements strictly. Use subpoenas/production orders under procedural rules to obtain hotel records, flight records, bank statements.
– Manage privacy concerns: when relying on intimate material, seek in-camera proceedings and confidentiality directions; balance disclosure needs with the court’s power to protect dignity and privacy.
– Consider settlement and negotiation: adultery-based petitions can be fertile ground for negotiated settlements (maintenance, property division) because the allegation focuses the respondent on mitigating reputational and financial consequences.
– Seek interim reliefs: maintenance pendente lite, interim custody, residence orders can be critical; do not wait for trial to protect client’s immediate interests.

For respondents (client accused of adultery)
– Challenge admissibility early: attack electronic records for non-compliance with Section 65B, challenge the chain of custody of physical evidence, and probe for illegal means of collection (which can lead to exclusion and counterclaims).
– Assert defences robustly: plead condonation, collusion, or recrimination where factual basis exists; seek to demonstrate lack of specificity or consistency in circumstantial evidence.
– Protective measures: file for injunction against publication of intimate material; pursue criminal complaints for blackmail, extortion or defamation if the claimant uses fabricated evidence or threatens dissemination.
– Child welfare strategy: if custody is at issue, focus on welfare of the child and present independent evidence of parenting capacity; courts repeatedly emphasise best interests of the child over parental moral failings.

Pitfalls and cautions
– Do not attempt to rely on electronically intercepted communications obtained illegally — they may attract criminal liability under the IT Act and be inadmissible.
– Beware of overreliance on social media: screenshots without 65B compliance are vulnerable; ephemeral messaging apps (WhatsApp deletions) require factual proof of source and preservation steps.
– Do not pursue criminal routes under the obsolete s.497 — courts will refuse cognizance; instead, consider civil claims or other criminal offences only where clearly made out.
– Avoid moralistic pleadings that do not tie factual allegations to specific legal reliefs; vagueness undermines credibility.
– In matrimonial negotiations, avoid public airing of intimate allegations where settlement confidentiality and reputational harm are critical.

Conclusion
Post-Joseph Shine, adultery in India has shed its criminal veneer and now functions primarily as a civil/matrimonial issue: a substantive ground for divorce and a contextual factor in ancillary reliefs. For practitioners, success turns on meticulous pleading, early preservation and lawful collection of evidence (particularly electronic records under Section 65B), and crafting a strategy that appreciates both the constitutional emphasis on privacy and the court’s continuing willingness to consider extramarital conduct when allocating reliefs. Whether representing a petitioner or respondent, the prudent practitioner will combine forensic care in evidence-gathering with tactical use of procedural remedies — interim reliefs, discovery, in‑camera proceedings and settlement negotiations — while remaining alert to collateral criminal offences (non-consensual dissemination of images, blackmail, trafficking) that may arise in particular fact patterns.