Is an Extramarital Affair Legal in India? The 2018 Judgment, Explained (2026)

The short answer: no adult in India can be prosecuted for adultery. The Supreme Court struck the offence down in September 2018. The longer answer matters more, because the judgment changed criminal law and deliberately left family law alone — and family law is where the consequences actually land.

What the law used to say

Section 497 of the Indian Penal Code, written in 1860, made it a crime punishable by up to five years for a man to have sex with "the wife of another man" without "the consent or connivance of that man". Three things about that wording did the damage:

• Only a man could be prosecuted. The woman could not be punished, not even as an abettor.
• Only a husband could complain. A wife whose husband slept with an unmarried woman had no remedy at all.
• The husband's consent made it lawful. If he permitted it, no offence occurred.

That last clause is the one the Court could not get past: it treats a married woman as property whose owner may license her.

Joseph Shine v. Union of India (2018)

A five-judge Constitution Bench heard the challenge and decided it unanimously on 27 September 2018. Section 497 was struck down as unconstitutional, along with Section 198(2) of the Criminal Procedure Code, the provision that let only a husband file the complaint.

The grounds, in plain terms:

• Article 14 (equality). Punishing only the man for an act two adults committed together has no rational basis.
• Article 15 (non-discrimination). The section rested on a stereotype about who owns a woman's sexuality.
• Article 21 (dignity and privacy). Following K.S. Puttaswamy (2017), the Court held that intimate decisions between consenting adults sit inside the zone of privacy the Constitution protects.

The Chief Justice's line is the one that gets quoted: a husband is not the master of his wife. Justice Nariman added that the provision was a relic of a time when a wife was considered chattel. Justice Chandrachud went furthest, holding that the section denied women sexual autonomy outright.

Three things the judgment did not do

This is where most articles on this subject stop, and where people get into trouble.

1. Adultery is still a ground for divorce

Every personal law in India still treats it as one. Section 13(1)(i) of the Hindu Marriage Act, 1955 allows divorce where a spouse has "voluntary sexual intercourse with any person other than his or her spouse". The Special Marriage Act, 1954 has the equivalent at Section 27(1)(a). The Indian Divorce Act, 1869 covers Christian marriages, and under Muslim personal law it can found a claim for dissolution. The Court said explicitly that decriminalising the act does not stop it being a civil wrong within a marriage.

2. It can still affect maintenance

Section 125(4) of the Criminal Procedure Code — now Section 144(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 — says a wife is not entitled to maintenance if she is "living in adultery". Courts read that narrowly: it means an ongoing, continuous course of conduct, not a single instance, and the burden of proving it falls on the husband. But it is live law and it is pleaded regularly.

3. It can be raised in custody proceedings

Custody is decided on the welfare of the child under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Conduct is not supposed to be punished for its own sake, and Indian courts have repeatedly said that a parent's private relationships do not by themselves make them unfit. In practice it gets pleaded, and it costs time, money and dignity to answer.

What about criminal law generally?

A few related points people conflate:

• The IPC has been replaced. The Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024 and does not re-enact adultery as an offence. Parliament had the chance to bring it back and chose not to.
• The armed forces are different. In 2023 the Supreme Court clarified that its 2018 judgment does not stop the armed forces acting against personnel under the Army, Navy and Air Force Acts for "stealing the affection of a brother officer's wife". If you serve, this applies to you and the civilian position does not.
• Consent is still the line. Nothing above touches offences involving coercion, deception as to identity, anyone under 18, or non-consensual sharing of images. Those remain serious crimes.
• Blackmail is a crime. Extortion is punishable under Section 308 of the Bharatiya Nyaya Sanhita. Non-consensual publication of intimate images is an offence under Section 66E of the Information Technology Act, 2000 and Section 67A where it is sexually explicit. If somebody threatens you, you are the complainant, not the accused. Report it at cybercrime.gov.in.

So what does this mean practically?

Question	Position in 2026
Can I be arrested for an affair?	No. There is no offence to arrest you for.
Can my spouse file a police case?	Not for adultery itself. Any FIR would have to allege a different offence.
Can my spouse divorce me over it?	Yes, under the personal law that applies to your marriage.
Can it affect maintenance?	Possibly, if "living in adultery" is proved. A one-off generally is not enough.
Can it affect custody?	It can be raised. The test remains the child's welfare, not the parent's conduct.
Does it apply to me if I am in the armed forces?	Service law still covers this conduct. Take service-specific advice.

The part the law does not cover

Decriminalisation is not permission and it is not absolution. The Court's point was narrow and constitutional: the state should not be in your bedroom. What happens inside your marriage is still yours to carry, and the people affected by it did not get a vote.

If you have decided anyway — and most people reading this already have — then do it with adults who have made the same decision, and understand what you are risking. Our discretion guide covers the practical side and the divorce and custody guide covers what happens if it comes out.