• Married guy with extra marital affair

My younger brother who got married 1.5years back, was caught cheating to his guy friends which is in the interest of gay sex, by his wife. Now his wife threatens to go to court and ask for compensation apart from divorce. 

With scrapping of Section 497 IPC, Is there any section, using which she can take any action against my brother and family?
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

Sec 497 has been decriminalised but adultery/ sex with other person can be the ground for divorce but she needs to prove that in the first place.

She can file for maintenance apart from.divorce.

Junaid Ali Khan
Advocate, New Delhi
173 Answers
1 Consultation

4.7 on 5.0

Dear Madam/Sir,

As far as 497 is withdrawn but there may be allegations arised as cheating, criminal breach of trust but this things unless and until very strong evidence is difficult to prove in trail.

Anand Shukla
Advocate, New Delhi
666 Answers
14 Consultations

4.9 on 5.0

Sister in law can file for divorce on Grounds of cruelty as if one spouse is homosexual, it amounts to cruelty on the other spouse and is a valid for divorce under section 13 of the Hindu Marriage Act.

She can also claim maintenance from your brother under section 125 of the code of criminal procedure.

Also a criminal complaint can be filed against your brother for the offence of criminal breach of trust and cheating under section 406 and 420 of the Indian Penal Code. Section 498 of the Indian penal code for dowry harassment can also be added in the complaint by her just to harass your family.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

only she can file divorce on the ground of unnatural sex.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Wife can file for divorce on grounds of mental cruelty and adultery

2) husband having extra marital affair amounts to mental cruelty

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0


1) Though the Supreme court has decriminalized Section 377 of the Indian Penal Code, which criminalised consensual “unnatural sex”, Indian marriage laws do not permit divorce on the grounds of "Homosexuality" as it is not classified as Civil Wrong in law yet.

2) So, the wife can only file for Divorce on grounds of cruelty, irretrievable break down of marriage etc.

3) Though Cruelty has no fixed definition, the wife can file a case against the husband on grounds of un natural sex, rejection, non consummation etc,

4) Please note that Indian laws permit the woman to file cases under

a) Domestic violence - Here cruelty includes denial of sex, abandonment, deception etc.

b) Maintenance - Section 125 Cr.P.C

c) 498a - Herein cruelty includes denial of sex, unnatural sex etc.

5) 497 IPC is about extra marital affairs. 497 has been scrapped. Same sex, homo sexuality did not come under 497.

6) Family might not be impleaded in the case as family had no role to play. However, younger brother will have to defend himself in courts.

Hope this information is useful

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

See for this she cannot file any criminal complaint on this though she can file a case of domestic violence and cruelty and further under 498a also if there is any dowry for same also.

Further she can seek divorce on this ground.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0


She can file a case of divorce on this ground and claim alimony. Scrapping of Section 497 and 377, makes it a non penal offence but the same can be used as a ground of divorce.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) She may file case against your brother for adultery, DV act and for your family 420 IPC making fraud relation and not telling truth before marriage.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

No she cannot, except divorce.

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

After the scrapping of section 497 there is only one thing left which is divorce. During the marriage there is nothing like compensation she can ask for maintenance and interim maintenance and legal expenses in case there is a divorce case pending.

If she's looking any money as alimony at the time of dissolution of marriage and for that she has to be till the decision of the court.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. With declaring the said section as ultra vires your brother can not be criminally prosecuted

2. But on this basis his wife can indeed file case under section 498A IPC.

3. Additionally she can file case under PWDV Act.

4. The proof of homosexuality is enough to get the marriage dissolved by decree of the court.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0


the adultery section has been scrapped. but your bro was caught having sex with men. that does not come under adultery. his wife can file for divorce as it is a ground for divorce. she cannot file criminal cases though if that is what you are asking.


Rahul Mishra
Advocate, Lucknow
13759 Answers
65 Consultations

5.0 on 5.0

1. Even if 497 was not gone no case under that section was made out against your brother.

2. At the most his wife can file a petition for dissolution of marriage against him on the ground of cruelty.

3. If she decides to make the life miserable for him and his family members then she can file 498A besides other sections such as 354 for molestation against all of them. If and when a FIR is lodged then apply for anticipatory bail.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Dear client

Sec 497 can still be used as a ground in civil cases such as divorce maintenance etc afainst your brother though no criminal proceedings can be initiated on this ground.

Adv vikas

Vikas Khatri
Advocate, Delhi
179 Answers

Not rated

With adultery being decriminalised, extra-marital affair/adultery can only be pressed as a ground of divorce.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Sir,

Your brothers wife may lodge complaint under section 377 of IPC which is as follows:

Section 377 in The Indian Penal Code

377. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Since the adultery has been repealed from criminal law, she cannot initiate any action for cheating or compensation for this.

Moreover she never had any case against him even if this particular section was not repealed.

If she is not interested in continuing the marriage she may file divorce on the same grounds.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

1. YES. Wife can file criminal cases against Husband, for Misrepresenting, Intimidation, Threatening, Cheating, and also Domestic violence, Harassment.

2. Gay Sex may have been decriminalized, BUT Husband cannot inflict above on Wife. IF Husband was gay, then during marriage he misrepresented and cheated wife, by implying that he is non-gay.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

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