Extramarital Affairs in India: Simple Legal Guide for Everyone

Extramarital affairs (cheating after marriage) are a very sensitive topic in India. They break trust, hurt families, and cause a lot of emotional pain. But many people are confused about the law Is cheating a crime? Can someone go to jail? What happens in divorce?

Is an Extramarital Affair Legal in India?

Yes cheating is NOT a crime in India.
You cannot be sent to jail for having an extramarital affair.

Why? What changed?

Earlier, there was a law called Section 497 IPC that made adultery a crime. But it was unfair. It punished only the man involved in the affair and treated the wife like her husband’s “property.”

In 2018, the Supreme Court changed this in a famous case: Joseph Shine v. Union of India.

The court said:

The old adultery law was unfair and unequal.
people of all genders have the right to make personal decisions.
Marriage does not mean the husband “owns” the wife.

So, the court removed (scrapped) Section 497.

What about the new BNS 2023 law?

The new criminal code does NOT bring back the adultery law.
So cheating is still not a criminal offence.

Cheating Is Not a Crime But It Still Has BIG Effects in Marriage

Just because you can’t go to jail doesn’t mean cheating has no consequences.
In divorce cases, extramarital affairs are taken very seriously.

Extramarital Affairs and Divorce

Every personal law in India accepts adultery as a valid reason for divorce.

Hindu Marriage Act, 1955

If a spouse has sexual relations outside marriage, the other partner can file for divorce under Section 13(1)(i).

Special Marriage Act, 1954

Even one incident of cheating can be enough for a divorce case.

This law also allows divorce because of adultery.

Effects on Alimony, Maintenance & Custody

1. Mental Cruelty

Courts consider cheating as mental cruelty, which is also a separate reason for divorce.

2. Alimony / Maintenance

If a spouse is proved to be cheating, the court may:

reduce their alimony
or completely deny alimony (in some cases)

3. Child Custody

Courts always think about the child’s best interest.
If a parent’s affair harms the child’s well-being, it may affect:

How Do Courts Prove an Extramarital Affair?

You need to show proof in court, but not the same level of proof needed for criminal cases.
The court just needs to feel it is more likely than not that the affair happened.

Common evidence:

Chats (WhatsApp, texts), emails, call logs
Photos, videos, hotel bills, travel tickets
Witnesses (friends, relatives, private investigators)
Circumstantial evidence (showing both people together in private situations)

Important: Do NOT hack phones or spy illegally. It can get you into trouble.

How to Handle the Situation Emotionally

If you are the hurt spouse

Talk to a counsellor. It helps.
Stay calm and avoid fights.
Meet a matrimonial lawyer before making decisions.
Collect documents and evidence peacefully.

If you are the spouse accused of cheating

Remember: You still have legal rights.
Hire a lawyer quickly.
Prepare for financial and custody discussions.

Common Questions

1. Is an extramarital affair legal in India after 2018?

Yes. It is not a crime.

2. Can I file a criminal case for cheating?

No. It is not a criminal offence.

3. Does adultery affect divorce?

Yes. It is a strong reason for divorce.

4. Can the BNS 2023 make adultery a crime again?

No. It follows the Supreme Court ruling.

5. Does adultery affect alimony?

Yes. Courts may reduce or deny maintenance if cheating is proved.

6. Can I sue the third person involved?

It is possible in rare cases, but not common in India.

7. What is the punishment for an extramarital affair?

There is no criminal punishment.
The punishment is civil divorce, financial consequences, and custody effects.

Conclusion: Freedom With Responsibility

India now treats marriage as a personal commitment, not something controlled by criminal law. But the courts still protect the innocent spouse in divorce cases.

So while an extramarital affair won’t send anyone to jail, it can still lead to:

divorce
loss of alimony
custody problems
emotional pain

Understanding the law helps you make the right decisions in difficult times.

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Extramarital Affairs in India: Divorce, Alimony & Court Rules