It depends on the law used. Under BNSS Section 144, a wife who is proved to be 'living in adultery' (continuous conduct, not a single lapse) loses that maintenance. Under the Hindu Marriage Act, courts can refuse, vary or cancel alimony for adultery. Custody is decided only on the child's welfare, so adultery alone rarely decides it.
Key takeaways
- Adultery is not a crime in India, but it is a ground for divorce and can affect money claims.
- BNSS s.144 bars maintenance only for a wife 'living in adultery', meaning continuing conduct.
- Hindu Marriage Act alimony is gender neutral and can be varied if the recipient is unfaithful.
- Custody turns on the child's welfare; an affair matters only if it harms the child.
- Courts need proof on a balance of probabilities, gathered lawfully.
Does adultery affect alimony in India? The short answer
Yes, adultery can affect alimony and maintenance in India, but not automatically and not in the same way under every law. Since the Supreme Court's 2018 decision in Joseph Shine v. Union of India, adultery is no longer a crime, and the Bharatiya Nyaya Sanhita, 2023 has no adultery offence. It remains, however, a recognised ground for divorce and a factor courts consider when deciding money claims between spouses.
Three separate questions get mixed up in most conversations: whether a spouse can claim interim or monthly maintenance, whether they can claim permanent alimony on divorce, and who gets custody of the children. Adultery has a real but limited effect on the first two, and usually very little on the third. If you are still trying to work out whether an affair is happening at all, start with our guide on how to find out lawfully if a spouse is cheating before thinking about financial consequences.
Which maintenance laws apply, and what each says about adultery
A spouse in India can claim support under more than one law at the same time, although courts adjust one award against another so the same need is not paid twice. The Supreme Court laid down detailed guidelines on overlapping claims, disclosure of income and assets, and the date from which maintenance runs in Rajnesh v. Neha (2020).
| Law | Who can claim | Effect of adultery |
|---|---|---|
| BNSS, 2023 s.144 (earlier CrPC s.125) | Wife (including a divorced wife who has not remarried), children, parents | No allowance to a wife who is 'living in adultery' (s.144(4)); an order can be cancelled on proof |
| Hindu Marriage Act, 1955 s.24 (interim) and s.25 (permanent) | Either husband or wife | Court considers conduct; under s.25(3) it may vary or cancel alimony if the wife has not remained chaste or the husband has had sexual intercourse outside wedlock |
| Special Marriage Act, 1954 s.36-37 | Wife | Court considers conduct of the parties; alimony can be varied or rescinded on similar grounds |
| Protection of Women from Domestic Violence Act, 2005 s.20 | Aggrieved woman in a domestic relationship | Monetary relief linked to domestic violence; adultery is not a statutory bar but conduct may be argued |
Personal laws for Muslim, Christian and Parsi marriages have their own maintenance and alimony rules, so the exact effect of an affair depends on how the marriage was solemnised. A family lawyer should check which provisions apply to you.
What does 'living in adultery' mean for a wife's maintenance?
This is where most people get it wrong. Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita does not say that any wife who has ever had an affair loses maintenance. It says she is not entitled if she is living in adultery. Several High Courts have read this phrase consistently as requiring a continuing course of adulterous conduct or an ongoing relationship, not a single or occasional lapse.
That is a higher bar than divorce. Under Section 13(1)(i) of the Hindu Marriage Act, even one act of voluntary sexual intercourse with someone other than the spouse after marriage is a ground for divorce. So it is possible for a husband to win a divorce on adultery and still be ordered to pay some maintenance if the wife's conduct does not amount to 'living in adultery'.
- Past affair that ended: usually not enough on its own to defeat a s.144 claim.
- Ongoing relationship or living with another partner: can defeat the claim if proved.
- Allegation without proof: courts do not accept bare accusations, and repeated false allegations of unchastity can themselves be treated as cruelty in divorce proceedings.
Is alimony gender neutral in India?
Partly. Under the Hindu Marriage Act, both interim maintenance (s.24) and permanent alimony (s.25) can be claimed by either the husband or the wife, depending on who lacks independent income. Husbands who are unable to support themselves have obtained maintenance from earning wives under these provisions, though such orders are less common.
The BNSS s.144 remedy, by contrast, is available to a wife, not a husband, and the Special Marriage Act alimony provisions are framed in favour of the wife. So the answer to 'can a cheating husband get alimony' is: under the Hindu Marriage Act he can apply, but the court will consider his conduct, and s.25(3) expressly allows alimony to be varied or cancelled if the husband has had sexual intercourse outside the marriage.
How courts decide permanent alimony when there has been an affair
Indian law does not fix alimony by formula. Courts look at the whole picture, and adultery is one factor among many rather than an automatic penalty. Typical considerations include:
- Income and assets of both spouses, verified through the affidavits of disclosure required after Rajnesh v. Neha.
- Reasonable needs of the claimant and the standard of living during the marriage.
- Earning capacity, including qualifications and whether a spouse left work for the family.
- Length of the marriage and responsibility for children.
- Conduct of the parties, where proved adultery can lower or end an award.
In mutual consent divorces, the 'settlement' is negotiated rather than ordered. Here, strong evidence of an affair often matters more as leverage in negotiation than as a legal rule. That is one reason people ask whether adultery can affect a divorce settlement: it can shift bargaining positions, but only if it can be proved without breaking the law in the process. Our guide on proving adultery in a divorce case explains what kind of evidence courts accept.
Can adultery affect child custody?
Rarely, by itself. Custody in India is decided on the welfare of the child, which is the paramount consideration under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Courts look at the child's age, emotional bonds, schooling, stability, safety and, for older children, their own preference.
An affair becomes relevant only where it affects the child. Examples that courts may weigh include:
- a parent repeatedly leaving young children unattended to meet a partner;
- exposing the child to a new partner who is violent or abusive;
- instability, such as frequent moves or neglect of schooling, linked to the relationship;
- using the child to hide or carry messages about the affair.
A parent who was unfaithful to a spouse can still be a loving, capable parent, and courts recognise that. Mothers of very young children are often given custody, with the father receiving visitation, whatever the reason for the breakdown. Also note that the Supreme Court, in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), held that a DNA test of a child should not be ordered routinely just to prove a spouse's adultery, because the child's own rights and privacy are at stake.
What proof matters, and how to gather it lawfully
Family courts decide on the balance of probabilities, and direct proof of adultery is rare. Courts accept circumstantial evidence such as repeated hotel stays, living together, travel records, photographs taken in public places, and admissions in messages. Under Section 14 of the Family Courts Act, 1984, a family court may receive evidence that helps it deal effectively with the dispute even if it would not strictly be admissible elsewhere, and in July 2025 the Supreme Court in Vibhor Garg v. Neha allowed secretly recorded spousal phone conversations to be considered in matrimonial proceedings.
Admissibility is not a licence to spy. Installing spyware, logging into a spouse's accounts, obtaining call detail records or placing hidden cameras can be offences under the IT Act, 2000 and the BNS, and can damage your case and your credibility. Electronic evidence also usually needs a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023.
The lawful route is usually a combination of your own records (shared bank statements, documents you legitimately hold), witness statements, and, where needed, a discreet post-matrimonial investigation by a detective who observes and photographs only in public places. You can find a verified detective near you through Hire Your Detective; a good one will coordinate with your lawyer on what the court actually needs.
When to see a lawyer, the police or a detective
Money and custody questions are legal questions first. A family lawyer should advise before you file anything or confront anyone, because the choice of law (BNSS, Hindu Marriage Act, Domestic Violence Act) changes what you can claim and what you must prove.
- Lawyer: to choose the right petition, prepare disclosure affidavits and decide whether adultery is worth pleading.
- Police: only where there is a crime, such as cruelty or dowry harassment (BNS s.85-86), threats, or a second marriage while the first subsists (bigamy, BNS s.82). In an emergency, call 112; women can also call the 181 helpline.
- Detective: to establish facts lawfully, such as whether a spouse is living with someone else, or to trace undisclosed income and assets that affect alimony (see asset tracing in India).
Bottom line
Adultery matters in Indian family law, but less bluntly than many people expect. It can end a wife's BNSS maintenance only if she is living in adultery, it can reduce or cancel alimony under the Hindu Marriage Act for either spouse, and it seldom decides custody unless the child's welfare is affected. Get legal advice early, keep your evidence lawful, and focus on what you can prove rather than what you suspect. For more on the legal background, read whether adultery is a crime in India.
Sources & official links
This guide is general information, not legal advice. Laws and procedures change, and every case is different — speak to a lawyer about your situation. In an emergency, call 112.