Marriage is a civil union, a legal status which brings in certain rights and duties for the spouses. When a person is happily married, all his life revolves around his/her spouse. But sometimes, the picture does not remain oh so beautiful. There are times when married persons look for companionship outside their marriage and fall in love with someone else. Socially, the norm may sound unsettling, but is it legally punishable as well? Is extra marital affair legal in India? Let’s dive deeper into the legality of extra marital affairs.
Is there a law against extramarital affairs in India?
Earlier, Section 497 of the Indian Penal code, 1860 punished men for having sexual intercourse with another person’s wife. However, the provision was held unconstitutional by the Supreme Court of India in 2018 holding the same in violation of Articles 14, 15 and 21 of the Constitution of India. Hence, for now, there is no statutory law to punish consensual physical relationship outside marriage as was recently clarified by the Rajasthan High Court.
If a person gets to know about his/her spouse having an extra marital affair or having physical relations with someone else, there is no legal remedy to punish such a spouse. However, there is legal recourse to end their marriage.
Divorce due to extra marital affairs in India
Although there may not be any provision to punish the spouse who hampers the sanctity of the institution of marriage and goes on to have extra-marital affairs. However, the other spouse has the option to end such a marriage. Adultery is one of the grounds for judicial separation as well as contested divorce. Section 13(1)(i) of the Hindu Marriage Act, 1955 and Section 27(1)(a) of the Special Marriage Act, 1954 lay down adultery as a ground for divorce.
Can a married man live with another woman legally in India?
A person can live anywhere he/she wants. Restitution of conjugal rights is the legal provision which allows married couples to bring back spouses in their company. The law no more punishes persons for adultery. Therefore, a married man having sexual relations with another married woman cannot be punished as per penal law.
Additionally, the law does not promote extramarital affairs as well. In fact, there were numerous cases wherein couples in live-in relationship without divorce approached the Courts seeking protection against their family members, the way run-away couples do. The Courts at numerous occasions clarified that although they may not statutorily punish such people, but they refrained from providing police protection to such couples, not to promote anti-social norms like adultery.
Can a married woman live with another man legally?
Since live-in relationships are recently being recognized as marital relations for domestic violence and maintenance purposes, Courts are treating such relations similar to second marriage which may attract the offence of bigamy under Section 494 of IPC. A woman may live with another man outside marriage, but if there is any threat from her husband, the Courts may not be of much support when it comes to police protection. Similarly, if the live-in partner of such a woman does not treat her well or she is made to seek maintenance through legal recourse, again, the Courts may not help much.
Is extra-marital affair legal in India? – Conclusion
The answer to the question discussed herein comes to be a NO. There is no specific law which punishes a person for having sexual relations. However, the social and moral norms remain the same. Ultimately, humans are social creatures living in a society only. We have to abide by certain rules. A person having extramarital affairs may not be punished by the Courts. But, such a person may not be much respected when it comes to his/her society.
