Can adultery still be used as a ground for divorce in India?

Question

I have discovered that my spouse has been in an extramarital relationship. Can I still file for divorce on the ground of adultery even though it is no longer a crime? I have been reading conflicting things online and I would like to understand what Indian law actually says about this, which Act and Section applies, what the realistic timelines and costs are, and what I should be doing right now to protect my position. If the matter can be resolved without litigation I would prefer that route, but I want to know what my rights are before I agree to anything or sign any document.

MyVakeel Legal Desk · Accepted Answer

Can adultery still be used as a ground for divorce in India? is governed in India primarily by Hindu Marriage Act 1955, Section 13(1)(i), Indian Evidence Act 1872, Section 114 and Special Marriage Act 1954, Section 27(1)(a). The short answer is set out below, followed by the practical steps most people in this situation need to take. Read it alongside the specific provisions named, because the exact relief available to you turns on the facts you can prove on paper.

Section 13(1)(i) of the Hindu Marriage Act allows either spouse to seek divorce on the ground that the other has had voluntary sexual intercourse with a person other than their spouse after the marriage.

Adultery was decriminalised by the Supreme Court in 2018 as an offence under the Indian Penal Code, but it remains a valid civil ground for divorce and judicial separation under matrimonial statutes.

Since direct evidence of adultery is rarely available, courts allow proof by circumstantial evidence and reasonable inference under Section 114 of the Indian Evidence Act, such as hotel records, messages or eyewitness accounts of intimacy.

The standard of proof required is preponderance of probability, higher than in ordinary civil suits though not as strict as the criminal standard of proof beyond reasonable doubt.

Under the Special Marriage Act 1954, Section 27(1)(a) contains a similarly worded ground of adultery available to spouses married under that Act.

What to do next: 1) Gather circumstantial evidence such as call records, messages, photographs or witness statements; 2) Avoid confronting the spouse in a manner that could be construed as condonation of the conduct; 3) File the divorce petition promptly citing Section 13(1)(i) with supporting material; 4) Consult a lawyer on how to present circumstantial evidence effectively in court.

If the other side has already issued a notice, filed a case or set a deadline, treat the matter as time-sensitive — most remedies under Hindu Marriage Act 1955, Section 13(1)(i) carry limitation periods, and a delay you cannot explain weakens an otherwise strong case. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in this practice area.