Marriage and the legal question
A married man who is unhappy in marriage may form a relationship with another consenting adult, but his existing marriage and its obligations do not disappear. Indian law distinguishes conduct that is not criminal from conduct with matrimonial consequences.
1. Adultery is decriminalised
In Joseph Shine v Union of India (2018), the Supreme Court struck down IPC Section 497. The Bharatiya Nyaya Sanhita, 2023 does not restore the former general adultery offence. Nevertheless, an extramarital sexual relationship can remain relevant in divorce proceedings.
2. Divorce grounds and proof
Under Section 13(1)(i) of the Hindu Marriage Act, 1955, voluntary sexual intercourse with a person other than one’s spouse after marriage is a ground for divorce. Section 13(1)(ia) separately recognises cruelty; facts concerning an extramarital relationship may constitute mental cruelty. Divorce is not granted automatically: the court must assess pleadings and evidence and issue a decree. Mere friendship or suspicion is not necessarily proof of adultery.
3. Bigamy and second marriage
Under Sections 5(i) and 11 of the Hindu Marriage Act, a second marriage while the first valid marriage subsists is generally void. Section 82 of the Bharatiya Nyaya Sanhita provides punishment up to seven years and a fine for bigamy when the statutory requirements are met, subject to exceptions. Merely cohabiting is not proof of a legally solemnised second marriage. Personal-law differences must be considered.
4. Living together is not automatically a crime
Lata Singh v State of Uttar Pradesh (2006) and S Khushboo v Kanniammal (2010) address the liberty and choices of consenting adults. Merely sharing a home is not, by itself, a criminal offence. However, cohabitation does not dissolve the existing marriage and may be relevant to the spouse’s civil and matrimonial claims.
5. Rights of the unmarried partner
In Indra Sarma v V K V Sarma (2013), the Supreme Court found that the particular relationship before it did not qualify as a relationship in the nature of marriage under the Protection of Women from Domestic Violence Act, 2005. The result depends on the facts and does not eliminate ordinary legal protection against violence, harassment or coercion. Eligibility for specific remedies must be assessed individually.
6. Wife’s and children’s rights
Depending on the applicable law and evidence, a wife may seek divorce, maintenance under Section 144 BNSS, interim maintenance and litigation expenses under Section 24 of the Hindu Marriage Act, permanent alimony under Section 25, domestic-violence remedies, or restitution of conjugal rights under Section 9. Children may have separate rights to support and welfare-based custody decisions. Maintenance is determined on the parties’ needs, resources and circumstances; no fixed or automatically heavy payment follows merely from an allegation.
7. Impact on the husband’s divorce petition
Section 23 of the Hindu Marriage Act requires courts to consider whether a petitioner seeks to take advantage of their own wrong. An extramarital relationship may affect the assessment of evidence, but it does not automatically decide the case. Being unhappy in marriage or falling in love elsewhere is not by itself a statutory divorce ground.
8. Lawful steps before remarriage
Consider counselling or mediation when appropriate and safe. Mutual-consent divorce under Section 13B requires statutory conditions and agreement; the six-month cooling-off period can be waived in suitable cases but divorce within six months is not guaranteed. Without consent, obtain legal advice on recognised contested-divorce grounds. Resolve child, maintenance and property issues as applicable. A filed petition is not a divorce decree; comply with the applicable finality and remarriage requirements before marrying again.
Legal awareness message — Adv. Mahesh Sitaram Dhannawat, B.Com., LL.M., Jalna
Suggested statement: Marriage carries legal responsibilities that cannot simply be ignored because one spouse is unhappy. Although adultery has been decriminalised, the rights of the legally married wife, the welfare of children and obligations arising from marriage remain important. Both men and women should understand their rights before entering another relationship. Where a marriage has irretrievably broken down, appropriate legal remedies should be considered rather than assuming that a live-in relationship ends existing responsibilities.
Conclusion and disclaimer
Adultery is no longer a general criminal offence; adult cohabitation is not automatically a crime; bigamy can be criminal; matrimonial obligations continue until legally changed. This is general legal information, not individual advice. Rules differ under Hindu, Muslim, Christian, Parsi and other applicable laws. Consult a qualified family lawyer with your documents.
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