Adultery l Evidence Collection l Dr. Jinesh Soni l 2025

In India, while adultery was previously a criminal offense under Section 497 of the Indian Penal Code, the Supreme Court struck it down as unconstitutional in 2018, meaning it's no longer a crime, but it remains a ground for divorce.
Here's a breakdown of the legal implications:
1. Criminal Offense:
Previously:
Adultery, defined as sexual intercourse with a married woman without her husband's consent, was a criminal offense under Section 497 of the Indian Penal Code.
Current Status:
The Supreme Court, in the case of Joseph Shine v. Union of India (2018), ruled Section 497 unconstitutional, effectively decriminalizing adultery.
No Criminal Punishment:
Consequently, there are no criminal penalties for adultery, and no one can be imprisoned for engaging in an extra-marital affair.
2. Ground for Divorce:
Divorce: Despite the decriminalization, adultery remains a valid ground for divorce under various personal laws, including the Hindu Marriage Act, Indian Divorce Act, Parsi Marriage Act, and Special Marriage Act.
Husband's Right: A husband can petition for divorce on the grounds of his wife's adultery.
Wife's Right: Similarly, a wife can petition for divorce on the grounds of her husband's adultery.
3. Key Points:
Definition:
Adultery is defined as consensual extramarital sexual intercourse.
Infidelity:
Adultery is a subset of infidelity, which involves all kinds of extramarital romantic or sexual relationships.
Evidence:
To prove adultery in a divorce case, the aggrieved party needs to provide evidence that establishes the occurrence of sexual intercourse between the other spouse and a third party.
Circumstantial Evidence:
Direct evidence of adultery, such as eyewitness accounts or photos/videos, may be difficult to obtain, so circumstantial evidence can be used.
Examples of Circumstantial Evidence:
Contraction of venereal disease
Visit to houses of ill-repute
Admissions made by the accused
Confessions and admissions of the parties
Birth of an illegitimate child
Communication records
Note:
The Supreme Court's decision to strike down Section 497 was a landmark ruling that addressed gender discrimination in the law, as it previously only allowed the husband to take legal action against the man who had committed adultery with his wife, while the wife could not take action against her adulterous husband

Dr. Jinesh Soni
Advocate
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