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 would like to understand which provision governs this, what it entitles me to, and how long I have before the remedy lapses. I also want to know whether I need a lawyer for this or can do it myself.

MyVakeel Legal Desk · Accepted Answer

In India, the answer to "Can adultery still be used as a ground for divorce in India?" turns on Hindu Marriage Act 1955, Section 13(1)(i), Indian Evidence Act 1872, Section 114 and Special Marriage Act 1954, Section 27(1)(a). The points below set out the position and then what to do about it, in the order it should be done.

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 you are unsure whether your facts fall inside Hindu Marriage Act 1955, Section 13(1)(i), that is worth checking with an advocate before you commit to a route, because switching later costs time. 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 family law.