What to Do If Your Husband or Wife Is Having An Extra Marital Affair
Team SoOLEGAL 3 Jul 2023

What to Do If Your Husband or Wife Is Having An Extra Marital Affair


Discovering that a spouse is engaged in an extra-marital affair can be emotionally devastating. While the impact on the relationship is deeply personal, there are legal considerations to be aware of as well. This article explores the evidence that can be used against a spouse involved in an affair, as well as the available remedies in different personal laws in India.

Evidence against a spouse engaged in an extra-marital affair: Proving an extra-marital affair can be challenging, but various forms of evidence can be used to support a case. These include:

Birth of an illegitimate child: The birth of a child conceived during the affair can be strong evidence of infidelity.

Contraction of a venereal disease: If the unfaithful spouse contracts a sexually transmitted infection, it can serve as evidence of extra-marital sexual activity.

Witnesses, photographs, and videos: If it is legal and ethical to do so, gathering witness testimonies, photographs, or videos that capture the spouse's involvement in the affair can be valuable evidence.

Evidence of visits to a brothel: If there is proof of the spouse visiting a brothel, it can indicate involvement in extramarital sexual activities.

Confession of the spouse: A spouse's confession of their adulterous behavior can serve as evidence against them.

Communication records: Messages or emails found on devices or obtained legally can provide evidence of an affair.

Paternity test reports: A paternity test revealing that a child from the affair is biologically linked to the unfaithful spouse can further support the case.

It is important to note that while direct evidence is preferred, circumstantial evidence can also be used to establish an extra-marital affair. The evidence presented collectively should lead to a compelling conclusion of adultery, with the intention to commit adultery being an essential element.

Remedies under personal laws in India: The available remedies for individuals affected by an extra-marital affair vary depending on their personal law. Here are some notable remedies under different personal laws:

Hindu Marriage Act, 1955, and Special Marriage Act, 1954:

Divorce: A spouse can file for divorce on the ground that their partner engaged in voluntary sexual intercourse with someone other than themselves after marriage.

Judicial Separation: If immediate divorce is not desired, a petition for judicial separation can be filed, providing time for reflection and deciding on the future of the marriage.

Muslim Personal Laws:

Husband: A Muslim husband can divorce his wife by exercising triple talaq or through delegation of divorce powers to the wife (talaq-i-tafweez).

Wife: The wife can file for divorce if the husband associates with women of ill repute or leads an infamous life, considering it as mental cruelty. False accusations of adultery by the husband may also be grounds for divorce.

Christian Law:

Divorce: The Divorce Act, 1869, allows divorce on the ground of adultery committed by the respondent after marriage.

Judicial Separation: A petition for judicial separation can be filed.

Also, the Code of Criminal Procedure, 1973 (CrPC) contains provision related to extramarital affairs, which can be summarized as follows:

Maintenance: According to the CrPC, a wife who is found to be living in adultery is not entitled to receive maintenance from her husband. If a maintenance order has already been issued, but later it is proven that the wife is living in adultery, the magistrate has the authority to cancel the maintenance order. It's important to note that "living in adultery" refers to a continuous state of engaging in adultery, rather than a one-time occurrence.


Discovering a spouse's extra-marital affair can be emotionally distressing, and individuals need to understand their legal recourses and rights. Collecting evidence, whether direct or circumstantial, is crucial to support a case. The available remedies vary under different personal laws in India, allowing for divorce and judicial separation. Understanding the legal framework can help individuals make informed decisions regarding their relationships and seek appropriate remedies. 

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