Adultery, once a criminal offence in India, has been a contentious issue in the legal landscape. While the Supreme Court decriminalised it in 2018, it remains significant in civil law, especially in matters related to divorce, maintenance, and punishment within the armed forces. This explainer takes a closer look at the relevance of adultery in current Indian law.
The decriminalisation of adultery
In 2018, the Supreme Court of India ruled that Section 497 of the Indian Penal Code (IPC), which criminalised adultery, was unconstitutional. The provision, in place since 1860, had allowed only men to be prosecuted for committing adultery, which was defined as having sexual intercourse with another man’s wife without his consent. The law was seen as discriminatory, treating women as property and subservient to their husbands.
The Supreme Court’s judgment struck down this provision, declaring that it violated the right to equality. However, the court clarified that while adultery would no longer be a criminal offence, it could still be invoked as a moral wrong in civil matters, such as divorce proceedings.
Adultery in civil law: Divorce and maintenance
Despite being decriminalised, adultery remains a relevant legal ground for divorce and maintenance cases. Under both the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA), a spouse can file for divorce if the other party has engaged in voluntary sexual intercourse with someone other than their spouse.
Although the law does not explicitly refer to "adultery" in divorce provisions, it is implicitly understood. Courts require proof of sexual intercourse to establish adultery as a valid ground for divorce. In a 1982 Delhi High Court case, the court clarified that partial penetration is required to prove adultery, distinguishing the act from lesser forms of sexual gratification.
Adultery also has implications in maintenance cases. Under Section 125(4) of the Criminal Procedure Code (CrPC), a wife is not entitled to maintenance if she is living in adultery. However, in a Madhya Pradesh High Court case, despite a husband's claim that his wife was involved in a “love affair,” the court refused to cancel the maintenance order, emphasising that adultery must involve physical sexual relations.
Similarly, the Supreme Court recently ruled that a woman who is separated from her first husband but has not yet divorced him can still claim maintenance under Section 125 of the CrPC, even after his divorce. This landmark judgment establishes that the lack of a formal divorce does not invalidate her claim of separation or imply the existence of a bigamous relationship.
The exception in Armed Forces
While adultery has been decriminalised for the general public, it remains a punishable offence for members of the armed forces. In 2023, the Supreme Court addressed the question of how the decriminalisation ruling applies to military personnel. The Centre argued that the armed forces, as a “distinct class” under Article 33 of the Indian Constitution, should be governed by specific laws, such as the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950. These laws permit punishment for “unbecoming conduct” and violations of “good order and discipline,” including adulterous acts.
The Supreme Court upheld the Centre’s stance, stating that the ruling on decriminalisation did not affect the operation of these military laws. Consequently, adultery remains a punishable offence for members of the armed forces.
The decriminalisation of adultery in 2018 marked a significant shift in Indian law, particularly in its treatment of women and gender equality. However, adultery continues to play a role in civil law, particularly in divorce and maintenance cases. Additionally, members of the armed forces are still subject to punishment for adulterous conduct, highlighting the ongoing relevance of adultery in specific legal contexts.