Discovering that a husband is having an affair is painful, and many women in this situation ask the same first question: can I file a police case against him? The short answer is that adultery is no longer a crime in India. But a husband’s affair still has real legal consequences, and a wife has strong civil and family-law remedies. This guide explains them.
Is adultery still a crime?
No. In Joseph Shine v. Union of India (2018), the Supreme Court struck down Section 497 of the Indian Penal Code, which had made adultery an offence. The Bharatiya Nyaya Sanhita, 2023, which replaced the IPC from 1 July 2024, does not contain an adultery offence either. So neither the husband nor the other woman can be prosecuted for the affair itself.
However, conduct that often accompanies an affair can be an offence: cruelty to the wife (Section 85 BNS), marrying again while the first marriage subsists (Section 82 BNS), threats, or misuse of her money or jewellery.
What a wife can do
| Remedy | Law | What it gives |
|---|---|---|
| Divorce on the ground of adultery | Section 13(1)(i) Hindu Marriage Act; Section 27(1)(a) Special Marriage Act | Dissolution of the marriage |
| Divorce on the ground of cruelty | Same Acts; Section 2(viii) Dissolution of Muslim Marriages Act for Muslim women | Courts have held that an extra-marital relationship can amount to mental cruelty |
| Maintenance | Section 144 BNSS; Hindu Adoptions and Maintenance Act; personal law | Monthly maintenance for herself and the children |
| Domestic Violence Act reliefs | Protection of Women from Domestic Violence Act, 2005 | Residence, protection orders, monetary relief and compensation for emotional abuse |
| Custody | Guardians and Wards Act; Hindu Minority and Guardianship Act | Custody decided on the child’s welfare |
Muslim women
A Muslim husband may have more than one wife under personal law, so a second nikah is not void in itself. But under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939, a wife may seek divorce if the husband, having more than one wife, does not treat her equitably in accordance with the Quran. Cruelty, failure to maintain for two years and failure to perform marital obligations for three years are also grounds. See khula and divorce for Muslim women.
Proving the affair
Adultery is rarely proved by direct evidence. Family Courts decide on the preponderance of probabilities and can infer it from circumstances: messages, photographs, hotel or travel records, financial transfers, admissions, and witness accounts.
- In Vibhor Garg v. Neha (July 2025), the Supreme Court held that a secretly recorded telephone conversation between spouses is admissible as evidence in matrimonial proceedings. Recordings must still be genuine and properly proved, with the certificate required for electronic records.
- Keep screenshots with dates, and back up messages you have lawfully received.
- Do not hack his phone or email, install spyware, or log into his accounts without permission. That can be an offence under the Information Technology Act and can damage your own case.
Practical first steps
- Do not leave the matrimonial home in a hurry without advice. Under the DV Act you have a right to reside in the shared household.
- Secure your documents: marriage certificate, children’s birth certificates, bank statements, property papers, and a list of your jewellery and stridhan.
- Note your household expenses and his income sources; you will need these for maintenance.
- Preserve evidence lawfully and keep a dated diary of events.
- Decide what you want: reconciliation through counselling, a judicial separation, or a divorce. The Family Court at Bandra offers counselling and mediation at every stage.
Frequently asked questions
Can I file a police complaint against the other woman?
Not for the affair itself, since adultery is no longer an offence. A complaint is possible only if she has committed some separate offence, such as threats or harassment.
Will the affair affect maintenance?
The husband’s adultery does not reduce his duty to maintain his wife and children. The bar in Section 144(4) BNSS applies to a wife who is living in adultery, not to a husband. In fact, the Explanation to Section 144 BNSS says that if a husband keeps a mistress or has married another woman, that is just ground for the wife to refuse to live with him while still claiming maintenance.
Can I get custody of the children?
Custody depends on the children’s welfare. A parent’s affair is relevant only if it affects the children’s care. See child custody in Mumbai.
Can I stay in the house if he asks me to leave?
Yes. A wife has a right to reside in the shared household under Section 17 of the DV Act, whoever owns it. See right to residence in the shared household.
See also: a wife’s rights in divorce and husband married again without divorce.
Consultations are by appointment. To fix a time, telephone +91 99301 50560 or send a message on WhatsApp.
This guide describes general law as understood in October 2026. It is not legal advice; every matrimonial case turns on its facts, so take advice before acting.