Is Extra-Marital Affair Legal in India?

Yes, extra-marital affairs are not a criminal offense in India. The Supreme Court, in its landmark judgment in the case of Joseph Shine vs. Union of India (2018), decriminalized adultery by striking down Section 497 of the Indian Penal Code (IPC), which previously made adultery a punishable offense. However, while extra-marital affairs are no longer a crime, they can have legal consequences in matters related to divorce, child custody, and alimony.

Legal Framework and Key Rulings

1. Decriminalization of Adultery: Joseph Shine Case (2018)

1. Background:
   • Section 497 of the IPC treated adultery as a crime committed by a man against another man. A woman could not be punished for engaging in adultery, nor could she file a complaint against her husband for the same.
2. Supreme Court Verdict:
   • The Supreme Court declared Section 497 unconstitutional, holding that:
     • Adultery is a private matter and should not be treated as a criminal offense.
     • Criminalizing adultery violated the Right to Privacy and Right to Equality (Articles 14 and 21 of the Constitution).
3. Key Observations:
   • While decriminalized, the court emphasized that adultery can still be a ground for civil issues like divorce.

2. Adultery and Divorce Laws

Adultery remains relevant in civil law, particularly in matrimonial disputes:

1. Grounds for Divorce:
   • Under various personal laws in India, an extra-marital affair can serve as valid grounds for seeking divorce:
     • Hindu Marriage Act, 1955: Adultery is a specific ground for divorce under Section 13.
     • Indian Divorce Act, 1869 (for Christians): Adultery is a ground for divorce under Section 10.
     • Muslim Personal Law: Adultery can be grounds for divorce, subject to interpretation by personal law boards.
     • Parsi Marriage and Divorce Act, 1936: Adultery is a recognized ground for divorce.
2. Child Custody:
   • An extra-marital affair may be considered when determining custody, as courts prioritize the child’s best interests.
3. Alimony and Maintenance:
   • In some cases, courts may reduce or deny alimony to a spouse found guilty of adultery, depending on the circumstances.

Civil and Social Implications of Extra-Marital Affairs

1. Impact on Marriage:
   • Extra-marital affairs can lead to strained relationships, loss of trust, and eventual dissolution of marriage.
2. Reputation and Morality:
   • While not a crime, extra-marital affairs often carry social stigma and may impact an individual’s reputation and standing in society.
3. Legal and Financial Consequences:
   • Divorce, custody battles, and alimony disputes arising from extra-marital affairs can have long-lasting legal and financial implications.

International Perspective on Adultery Laws

1. Decriminalization:
   • Countries like the United States, Canada, and most European nations do not criminalize adultery.
2. Criminalized:
   • In some countries, particularly those following strict Islamic laws, adultery is still a punishable offense.

Challenges and Criticism

1. Moral Concerns:
   • Critics argue that decriminalizing adultery may encourage moral decline, though the court clarified that the judgment does not endorse the practice.
2. Gender Equality:
   • The earlier law was criticized for being gender-biased, as it penalized men but exempted women from liability.
3. Family Dynamics:
   • Extra-marital affairs continue to disrupt family structures, even if not treated as a crime.

Recent Developments

1. Armed Forces Exception:
   • The Supreme Court clarified in 2022 that the decriminalization of adultery does not apply to members of the armed forces, who are subject to disciplinary rules under military law.
2. Rise in Divorce Cases:
   • Since the decriminalization, there has been an increase in the use of adultery as a ground for divorce, reflecting its continuing relevance in civil law.

Conclusion

Extra-marital affairs are no longer a criminal offense in India, following the Supreme Court’s decision to decriminalize adultery. However, they can still have significant legal consequences in the context of marriage, divorce, child custody, and alimony. While the decriminalization reflects evolving social attitudes and upholds individual rights, extra-marital affairs remain socially contentious and can lead to complex legal disputes in matrimonial matters.