Adultery, Divorce, Maintenance and Custody in India: What Actually Happens

Adultery is not a crime in India — the Supreme Court settled that in Joseph Shine v. Union of India in 2018. Everything that follows is civil, and it is where the real consequences sit.

Divorce

Adultery is a fault ground under every personal law:

• Hindus, Buddhists, Jains, Sikhs — Section 13(1)(i), Hindu Marriage Act, 1955.
• Inter-faith and civil marriages — Section 27(1)(a), Special Marriage Act, 1954.
• Christians — Sections 10 and 10A, Indian Divorce Act, 1869.
• Parsis — Section 32(d), Parsi Marriage and Divorce Act, 1936.
• Muslims — dissolution under the Dissolution of Muslim Marriages Act, 1939 and personal law.

Two practical points. First, the standard of proof is the civil one — a balance of probabilities — not the criminal standard. Second, a fault-based petition is slower and more expensive than mutual consent, so even where adultery is provable, many contested petitions end up converting to a mutual-consent divorce under Section 13B.

Condonation

If a spouse knew about the affair and carried on living with you as husband and wife, that can amount to condonation and can defeat the ground. It is a real defence and it is pleaded often.

Maintenance

Section 144(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125(4) CrPC) says a wife is not entitled to maintenance if she is "living in adultery". Courts have consistently held:

• It means a continuous course of conduct, not one incident.
• The burden is on the husband to prove it.
• It does not affect maintenance for the children, ever. A child's right is independent of the parents' conduct.

Maintenance under Section 24 of the Hindu Marriage Act (interim maintenance during proceedings) and under the Protection of Women from Domestic Violence Act, 2005 runs on different tests again.

Custody

The governing principle is the welfare of the child, under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Indian courts have said repeatedly that a parent's private relationships do not by themselves make them an unfit parent — what matters is the child's stability, schooling, emotional needs and, for an older child, their own preference.

The honest version: it gets pleaded anyway, because it is a pressure tactic. It lengthens proceedings and it is unpleasant. It rarely decides the outcome on its own.

Evidence: what courts accept

Adultery is almost never proved directly. Courts work from circumstantial evidence and inference. What typically gets led:

• Hotel records, travel bookings, call detail records obtained through the court.
• Photographs and video, where provenance can be established.
• Messages and chat logs, which need a Section 63 certificate under the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 65B of the Evidence Act) to be admissible as electronic evidence. Screenshots without that certificate are routinely thrown out.
• Testimony of witnesses, including investigators.

What courts refuse — and what gets the spouse in trouble

Evidence gathered unlawfully creates its own problems for the person who gathered it:

• Phone tapping without authorisation is an offence under the Indian Telegraph Act, 1885 and a breach of the privacy right recognised in Puttaswamy. Several High Courts have refused to admit covertly recorded spousal calls.
• Hacking an email or a phone is an offence under Sections 43 and 66 of the Information Technology Act, 2000.
• Publishing private images is an offence under Sections 66E and 67A of the IT Act, whoever took them.
• Stalking is an offence under Section 78 of the Bharatiya Nyaya Sanhita.

The point cuts both ways. If you are the person being investigated, some of what is done to you may itself be unlawful.

What about the third party?

A frequent question: can my spouse sue the person I was seeing? In India, essentially no. There is no action for "alienation of affection" as there is in some American states, and since 2018 there is no criminal offence either. They can be named in the divorce petition as a co-respondent, which is a procedural step rather than a claim against them.

If you are the one who found out

This site is not for you, but the information should still be accurate. Take these steps in order: talk to a family lawyer before you confront anybody, do not gather evidence in a way that is itself an offence, keep the children out of it entirely, and consider whether you want a divorce or an explanation, because they lead to different conversations.