Adultery is no longer a criminal offence in India - the Supreme Court struck down Section 497 of the Indian Penal Code in Joseph Shine v. Union of India (2018). But adultery remains a matrimonial ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955, and under parallel provisions in the Special Marriage Act, the Indian Divorce Act, and the Parsi Marriage and Divorce Act. The practical question for most couples is not whether adultery is still a ground but whether to plead it. A clear-eyed account.
What changed in Joseph Shine (2018)?
The five-judge Constitution Bench struck down §497 IPC as unconstitutional. The provision had criminalised adultery by treating a married woman’s sexual fidelity as a property right of her husband, in violation of Articles 14, 15, and 21. The judgment is one of the cleanest statements in Indian constitutional law about marriage being a partnership of equals, not a property relation. A spouse cannot be jailed for adultery. A husband cannot file a police complaint against his wife’s lover.
The criminal framing is gone. The civil-matrimonial framing is intact.
Is adultery still a ground for divorce in India?
Yes. Section 13(1)(i) HMA allows a spouse to petition for divorce on the ground that the other has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than the spouse. The Special Marriage Act has an identical provision at §27(1)(a). The Indian Divorce Act (Christian couples) and the Parsi Marriage and Divorce Act carry the same ground.
The petitioner must prove the ground on the balance of probabilities - the civil standard, lower than the criminal ‘beyond reasonable doubt’ but higher than mere suspicion. Indian family courts have over decades accepted a range of evidence: the respondent’s own admission (oral or written), contemporaneous communications (letters historically, now WhatsApp and email), photographs, hotel records, the birth of a child during a period when access by the petitioner was impossible, and circumstantial evidence taken cumulatively.
What family courts do not accept: accusations that rest on rumour, social-media innuendo, or character attacks. The threshold is meaningful, and accusations made loosely tend to harm the accuser’s credibility on every other issue in the matter.
Should you plead adultery as a ground?
For most couples the practical question is not whether the ground exists but whether to plead it. Adultery petitions are slower, more expensive, harder on the children who may later read the family-court file, and disproportionately damaging to the parent who pleads them when the relationship with the children is itself contested. Cruelty under §13(1)(ia) - which includes mental cruelty, and which Indian courts have read broadly to include a sustained pattern of infidelity - frequently produces the same decree without the same evidentiary cost.
The better question is often not how do I prove adultery? but what outcome am I actually seeking? If the answer is a decree of divorce and a fair settlement, the route is usually mutual consent under §13B with an MoU that does not litigate the cause. If the answer is a contested decree with a finding on fault, the route is §13. The choice is rarely as binary as it first feels.
What about the ‘co-respondent’?
The Code of Civil Procedure and the Family Court Rules in most states require that the alleged third party be impleaded as a co-respondent. This is a procedural rule with consequences: the third party has notice, has counsel, can cross-examine the petitioner, and becomes part of the public record. Many petitioners drop the adultery pleading at this stage, when the practical scope of what they have asked the court to do becomes visible.
The presence of adultery in a marriage is rarely the question. The question is whether the law is the right place to name it.
What does the empanelled advocate do at this stage?
Two conversations, in this order. First, the strategic question: what outcome are you seeking, and is adultery the route most likely to produce it? Second, the evidentiary question: if the answer to the first is yes, what evidence is actually available, and what does it support? Most decisions to plead adultery, on the Partlee panel, are reversed at the first conversation. The minority that survive the first usually survive the second.
If you are at the stage of considering the notice, read before you send the notice. The choice of ground shapes the notice; the notice, in turn, shapes the next ninety days of the matter.