Author: Durga Diwakar, Amity University Patna, Bihar
Introduction
Adultery, defined as voluntary sexual intercourse between a married person and someone who is not their spouse, can create doubts on a child’s paternity and their legitimacy. In legal terms, the legitimacy of a child refers to the child’s status as being born to parents who are legally married to each other. Under section 112 of the Indian Evidence Act that ‘any person was born during the continuance of valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” This provision establishes a presumption in favor of the child’s legitimacy if born during a valid marriage or within 280 days after its dissolution, provided the mother remains unmarried. The presumption can only rebutted by proving that the spouses had no access to each other during the time conception could have occurred. Now this provision is mentioned under section 116 of the Bharatiya Sakshya Adhiniyam, 2023.
How Adultery Laws have Evolved in India?
Adultery has always been a disputable issue in Indian society, intertwining personal morality, social values and legal standards. Indian law treated adultery as a criminal offense, but new criminal laws in 2024 which removed the section 497 of Indian penal code (IPC), adultery has been decriminalized, but it continues to have implication in divorce proceedings. Section 497 of IPC was enacted during the colonial era and defined adultery as a criminal offense. In this provision if a man engaged in sexual relations with a woman without the consent of her husband, he could be prosecuted for adultery. The law did not hold the woman accountable, reflecting the gender biasness.
The aim of section 497 was to protect the sanctity of marriage, but it also reinforced patriarchal notions treating women as a property of their husbsand.But the turning point of adultery came with the supreme court ruling In case the of Joseph Shine v.Union of India 2018,and this case challenged the constitutionality of section 497 of IPC.
The Supreme Court declared section 497 IPC unconstitutional, effectively decriminalizing adultery because it violated the fundamental rights of the Indian constitution. The judgment was given on the grounds of:
Right to privacy- It is a fundamental right under Article 21 of the Indian constitution, and criminalizing consensual extramarital relationships violated this right.
Gender Equality- The judgment highlight the need for gender equality. The law treated women as subordinates in marriage and perpetuated gender stereotype.
Decriminalization of adultery- The court stated that adultery could no longer be treated as criminal offense, but it could still have legal consequences in divorce proceedings.
On July 1 2024 new criminal law brought substantial changes to the legal framework, including the complete removal of section 497 of IPC.
Current Legal Status of Adultery
With the removal of section 497 of IPC, the legal status of adultery in India is clear. While Adultery is no more criminal offense in India but it remains significant in civil law particularly in the matter of divorce under Hindu Marriage Act. Under section 13 of the Hindu Marriage Act, adultery is valid ground for divorce. This means spouse can file divorce by proving that their partner engaged in extramarital affair.
Case laws related to the issues of Legitimacy and Adultery
There is a recent landmark judgment of Supreme court in case of Ivan Rathinam vs. Milan Joseph (criminal appeal no.413 of 2025), has ruled that a child’s right to know their biological parent must be balanced against the right to privacy and dignity of individuals. The court said that the DNA test cannot be ordered on allegations of adultery,or the legal presumption of legitimacy under section 112 of Indian Evidence Act 1872, remains conclusive unless rebutted by proving ‘non-access’ between the spouses.
Background of the case
The case concerning the paternity of Milan Joseph, the respondent who was born during the subsistence of his mother’s marriage to Mr. Raju Kurian. Alleging that Ivan Rathinam the appellant was his biological father Joseph and his mother sought to change the birth records and demanded a DNA test to establish paternity. The appellant resisted the claim, arguing that the presumption of legitimacy in law prevailed and subjecting him to a DNA test would violate his right to privacy and dignity. This case had been litigated across multiple forums, the Family court closing the maintenance petition in 2010, contingent upon the outcome of civil suit on a paternity. In 2015 the family court revived the case for a fresh determination of paternity, decision upheld by the Kerala HC IN 2018.Later the appellate challenged the revival in Supreme court.
Issues of the case
Can the presumption of legitimacy determine paternity?
Is a DNA test mandatory when paternity is disputed, particularly in case of adultery?
Judgment of The Supreme court
Justice Surya Kant and Justice Ujjal Bhuyan ruled in favor of appellant that – under section 112 of the IEA a child born during a valid marriage is presumed to be the offspring of the husband. To rebut this ‘non- access’ between the spouses must be proven, no allegation of infidelity. Or the court stated that compelling a individual for DNA test without substantial evidence amounts to an unwarranted invasion of privacy. K.S Puttaswamy v. Union of India, the bench affirmed the privacy is a fundamental right under article 21 of the Indian constitution.
Conclusion
It can be stated that section 497 of Indian penal code which covered adultery which was a criminal offense earlier now it has been declared unconstitutional by the Supreme Court in Judgment of Joseph Shine. A person who is aggrieved by adultery with the only option of civil resources, using it as a ground for divorce or judicial separation as per the family laws. But however this position is not uniform because the army still holds the power to punish its officers for committing adultery, be noted that army punished both male and female for adultery. The legal framework in India favors the presumption of a child’s legitimacy born within a valid marriage. Adultery a serious matrimonial offense does not automatically render a child illegitimate. To rebut the presumption of legitimacy must be conclusively proven that the spouses had no access to each other during the time the child could have been conceived. Recent judgments reinforce this stance and protect the child status and welfare.
FAQS
Is adultery a crime in India?
No, adultery is not a crime in India. In 2018 Supreme Court of India struk down section 497 of the Indian Penal Code which is previously made for adultery and court ruled that the law was unconstitutional. But it can still be a ground for divorce under personal laws.
Can a spouse sue a third party for adultery?
A spouse can file a suit against the third party for alienation of affection or criminal conversation. However, many jurisdiction abolished such claim.
How adultery can be proved in Indian court?
Circumstantial evidence can be used a proof of adultery in India. The spouse getting pregnant when the husband has no access to her ,spouse contracting a venereal disease.
References
