You can take legal action, but mostly in family court. Infidelity alone is not a crime in India, so the main remedies are divorce or judicial separation on grounds of adultery or cruelty, maintenance, custody and domestic violence reliefs. Criminal cases are possible only for related offences such as bigamy, cruelty, fraud, threats or intimate image abuse.
Key takeaways
- An affair alone cannot send a spouse to jail; adultery is not an offence under the BNS.
- Divorce, judicial separation, maintenance and custody are the main legal remedies.
- Criminal law applies to bigamy, cruelty, cheating, deceitful promises and image-based abuse.
- Boyfriend or girlfriend cheating has no matrimonial remedy, but some crimes may still apply.
- Gather lawful evidence and take legal advice before confronting or moving out.
What legal action can you take against a cheating spouse?
Plenty, but not the kind many people first imagine. Since the Supreme Court decriminalised adultery in Joseph Shine v. Union of India (2018), and the Bharatiya Nyaya Sanhita, 2023 (BNS) did not bring it back, you cannot file an FIR simply because your husband or wife had an affair. Our explainer on whether adultery is a crime in India covers that history.
What remains is a strong set of civil and family-law remedies: divorce, judicial separation, maintenance for you and your children, custody, protection of your residence, and orders against harassment. And where the cheating comes with other wrongs, such as a secret second marriage, cruelty, financial fraud or threats, criminal law does apply.
The right route depends on what you want: to end the marriage, to secure money and a home, to protect children, or to stop abuse. Decide that first, with a family lawyer.
Your legal options at a glance
| Remedy | Law | What you generally need to show |
|---|---|---|
| Divorce on ground of adultery | Hindu Marriage Act s.13(1)(i); Special Marriage Act s.27; Divorce Act, 1869 s.10 | Voluntary sexual intercourse with another person after marriage, usually proved circumstantially |
| Divorce on ground of cruelty | Same Acts (e.g. HMA s.13(1)(ia)) | Conduct causing mental or physical cruelty, which can include a humiliating, flaunted affair |
| Judicial separation | HMA s.10 and equivalents | Same grounds as divorce; marriage continues legally |
| Divorce by mutual consent | HMA s.13B; Special Marriage Act s.28 | Both agree; settle money and custody terms |
| Maintenance | BNSS s.144; HMA s.24-25; personal laws | Need and the other spouse's means; a wife "living in adultery" is barred under BNSS s.144(4) |
| Domestic violence reliefs | Protection of Women from Domestic Violence Act, 2005 | Physical, emotional, verbal or economic abuse in a domestic relationship |
| Custody | Guardians and Wards Act, 1890; personal laws | Child's welfare is paramount |
| Criminal complaint | BNS s.82, 85-86, 69, 318, 308, 77 etc. | A specific offence beyond the affair itself |
Can a cheating husband go to jail in India?
Not for the affair alone. But a husband (or wife) can face jail if the cheating involves a separate offence:
- Bigamy, BNS s.82 (earlier IPC 494/495): marrying again while the first marriage subsists, punishable up to seven years, and up to ten years if the earlier marriage was concealed from the new spouse. See our guide on second marriage without divorce.
- Cruelty, BNS s.85-86 (earlier 498A): wilful conduct by a husband or his relatives likely to drive a wife to grave harm, or harassment over unlawful demands, punishable up to three years and fine.
- Deceitful promise of marriage, BNS s.69: obtaining sexual intercourse by deceit, such as a married man hiding his marriage and promising to marry.
- Cheating, BNS s.318 (earlier 420): if a spouse dishonestly took money or property, for example by fraud.
- Extortion and intimidation, BNS s.308 and s.351: threats or blackmail, including with private photos.
- Image-based abuse: recording or sharing intimate images without consent, BNS s.77 and IT Act s.66E.
Courts guard against misuse too. In Arnesh Kumar v. State of Bihar (2014), the Supreme Court laid down safeguards against automatic arrest in matrimonial cruelty cases, so expect police to examine complaints carefully.
Legal action against a cheating wife in India
Family law on adultery is gender-neutral: a husband can seek divorce or judicial separation on the ground of his wife's adultery or cruelty just as a wife can. Points husbands commonly ask about:
- Maintenance: under BNSS s.144(4), a wife proved to be living in adultery is not entitled to maintenance under that section. Courts distinguish an ongoing adulterous relationship from a past lapse, and maintenance under other laws is assessed separately. Read how adultery affects alimony and custody.
- Custody: the child's welfare decides custody. A mother's affair does not automatically mean she loses custody.
- The other man: there is no FIR for adultery, but BNS s.84 (enticing or detaining a married woman with criminal intent) is a narrow, non-cognizable offence with specific elements; ask your lawyer before relying on it.
- Stridhan: her jewellery and gifts remain her property regardless of the affair.
Legal action against a cheating boyfriend or girlfriend
Without a marriage, there are no matrimonial remedies like divorce or maintenance. Being cheated on in a relationship is painful, but it is not by itself a legal wrong. Legal action is possible only when something more happened:
- False promise of marriage: BNS s.69 punishes sexual intercourse obtained by deceitful means, including a promise to marry made with no intention of keeping it. Courts distinguish this from a genuine relationship that later broke down, so the facts matter greatly.
- Money: if a partner borrowed money or took valuables dishonestly, a civil recovery suit or a cheating complaint (BNS s.318) may be possible.
- Private photos and threats: threatening to share or sharing intimate images is an offence. Report at cybercrime.gov.in and use StopNCII.org.
- Hidden marriage: if the partner was secretly married while promising marriage, both s.69 and fraud principles may be relevant.
Step-by-step: what to do after discovering infidelity
- Ensure your safety. If there is violence or a threat, call 112; women can call 181.
- Preserve evidence you lawfully have: messages on your own phone, photos you took, bank statements of joint accounts.
- Do not confront publicly or post on social media; it can invite defamation claims (BNS s.356) and harm your case.
- Consult a family lawyer about your goal and the right law: divorce, separation, maintenance, custody or protection orders.
- Collect financial information. In Rajnesh v. Neha (2020), the Supreme Court required both parties in maintenance cases to file affidavits of assets and liabilities, so organise your own records too.
- Consider lawful investigation if facts are unclear, through a post-matrimonial investigation in public places.
- File the right petition and, if needed, apply for interim maintenance and interim custody.
- Keep mediation open. Family courts often refer couples to mediation, which can settle money and custody faster.
If your spouse lives abroad, as in many NRI marriages, you can usually still file in the Indian family court where you live or where you last lived together, depending on the law that applies. Serving notice, enforcing maintenance and dealing with a foreign divorce decree raise extra issues, so tell your lawyer early about any overseas proceedings. The National Commission for Women also has a mechanism for complaints by women in NRI marriage disputes.
Mistakes that can weaken your case
- Illegal spying: installing spyware, reading their phone, GPS tracking or hidden cameras can lead to complaints against you. Learn how to catch a cheating spouse legally instead.
- Exaggerated or false allegations: they damage your credibility and can attract legal consequences.
- Taking the children away abruptly without legal advice, which can complicate custody.
- Hiding assets or income: courts may draw adverse inferences.
- Signing settlement papers in anger without understanding maintenance, property and custody terms.
Bottom line
Legal action against a cheating husband or wife in India runs mainly through the family court: divorce, separation, maintenance, custody and protection orders. Criminal law steps in only when there is bigamy, cruelty, fraud, threats or image abuse. Good outcomes come from calm planning, lawful evidence and a good lawyer. If you need the facts established discreetly first, you can find a verified detective near you.
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.