French novelist Honoré de Balzac poignantly noted that families are like secret societies, governed by their own hidden laws and private operations. However, when the Madras High Court recently granted a divorce to a Central Reserve Police Force (CRPF) constable on the grounds of adultery, it acknowledged a domestic reality long understood but very rarely put forth. Overturning a rigid family court order that had demanded direct, physical proof of an illicit relationship, the High Court observed that adultery is inherently an act of secrecy. To insist upon absolute eyewitness evidence of physical intimacy would be to demand the impossible. Matrimonial courts, the Bench ruled, must rely on a holistic analysis of circumstantial evidence, such as un-replied legal notices, suspicious photographs, and continuous public proximity, rather than searching for testimony from behind closed doors. As the brilliant Sylvia Plath famously wrote at the edge of her own domestic reckonings: “You think intercourse is a private act; it's not, it's a social act”.

This logistical headache over evidentiary standards is merely the latest chapter in a much older, deeper structural friction. Few subjects in Indian jurisprudence have travelled such a remarkable journey: from sin to crime, from crime to civil wrong, and from the pages of codebooks to the scripts of blockbuster films and the enduring themes of streaming platforms. Long before our courts grappled with digital footprints and call logs, Leo Tolstoy captured the existential rot of marriages held together purely by conventional expectation, writing in Anna Karenina that “respect was invented to cover the empty place where love should be”.

Curiously, our contemporary storytelling appears no less conflicted than the law it attempts to critique. Our popular cinema and streaming universes betray a stubborn conservatism where the treatment of fidelity is rarely as revolutionary as it claims to be, proving that for centuries, both the law and the arts have struggled to police that empty place, treating the preservation of the marital institution as an absolute public necessity.

Colonial India inherited its moral anxiety over fidelity through Section 497 IPC, a provision that criminalized adultery by treating the wife less as an autonomous individual and more as a participant whose agency was legally secondary to her husband's. The husband occupied centre stage, and his consent alone could extinguish the criminality of his wife's intimate choices. For over half a century, this archaic framework stood firm, surviving multiple constitutional challenges. In landmark cases like Yusuf Abdul Aziz (1954), Sowmithri Vishnu (1985), and V. Revathi (1988), the Supreme Court repeatedly defended the law. The judiciary wrapped its reasoning in the protective rhetoric of saving the “sanctity of the matrimonial home”, famously arguing that bringing the criminal law into the domestic sphere to let wives prosecute husbands would merely introduce blood and iron where reconciliation should be sought. The court viewed the exemption of women from prosecution as a benign privilege rather than what it truly was: an indicator of proprietary ownership.

It took the Supreme Court's 2018 decision in Joseph Shine v. Union of India to decisively dismantle that women are not chattel, marriage does not extinguish autonomy, and criminal law is not a tool for enforcing fidelity. As the court eloquently noted, the law cannot act as a policeman in the bedroom, because individual choice and personal sovereignty are the foundational core of a constitutional order. What Joseph Shine constitutionalized, therefore, was individual autonomy, not the act of adultery itself.

The aftermath of that historic judgment, however, is frequently misunderstood in the public imagination. Decriminalization did not render infidelity legally irrelevant; it merely shifted the forum. The criminal judge may have exited the stage, but the family court judge remains very much present. Across the country, family courts continue to hold that adulterous conduct constitutes mental cruelty, making it a robust fault-ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955 and a decisive factor in adjudicating maintenance and alimony.

This introduces a central paradox: while constitutional law romanticizes individual liberty and privacy, family law treats marriage as a sacrosanct social institution that cannot be dissolved without a bitter allocation of blame. We insist that marriage is not a mere transactional contract, but the moment it fractures, the legal system treats it exactly like a hostile corporate restructuring.

On our screens, we see this exact anxiety play out: the upright officer, the sincere soldier, the incorruptible investigator, and the self-sacrificing public servant are rarely written as promiscuous individuals navigating multiple entanglements; for them, fidelity remains a shorthand for integrity. To bypass the domestic inconvenience of a complex, evolving marriage, our writers routinely equip these heroes with either dead wives, whose lingering memory acts as a permanent moral compass, or fiercely supportive spouses whose sole purpose in the script is to remain ultra-traditional, peripheral, and inevitably placed in mortal danger to raise the stakes! Because the stakes remain equally high in real life, involving financial survival, societal standing, and child custody, the difficulty of proving infidelity has not stopped litigants from trying. Instead, it has modernized the conflict.

As highlighted by the recent Madras High Court judgment, because direct evidence is impossible to gather, the pursuit of “circumstantial evidence” has turned divorce proceedings into private espionage operations. It has incentivized the surreptitious harvesting of Call Detail Records, location trackers, and hidden camera footage taken by independent third parties. We have outlawed the state-sponsored prosecution of adultery, and yet our civil framework actively encourages the forensic, high-tech dissection of it.

Decades ago, the legendary Justice Krishna Iyer famously reminded the republic that “procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice”. There is a profound irony here: the High Court in its recent judgment, had to actively step in precisely because procedural technicalities had stopped being a lubricant and had become a rigid resistant to a desperate litigant. In our contemporary family courts, the system looks phlegmatically at the emotional wreckage of a home, forcing individuals to turn into tech-savvy spies just to satisfy an impossible evidentiary threshold. Lord Denning observed that “the law can enforce the performance of a contract, but it cannot compel the keeping of a vow”. In the family courts, we see the painful truth of this statement, where the law fails to preserve the vow but spends years forensically auditing its broken pieces.

Even when the storytelling blueprint on our OTT platforms allows a protagonist to wander, the moral parameters remain strictly gendered: the male protagonist is frequently permitted to loiter, his indiscretions brushed off as light-hearted comedic friction or rationalized as the complex byproduct of existential angst, while a female protagonist is rarely granted the luxury of casual error. For a woman to step outside a marriage on screen, her domestic life must usually be depicted as a horror show of absolute abuse, neglect, or profound emotional abandonment just to make her choice palatable to the audience. What Joseph Shine did for the court files of the one in need, could not possibly be taken further in our jaunty movies and web series, because the constitutional promise of equal agency frequently encounters the stubborn realities of audience preference.

This screen-bound double standard reveals that while Section 497 IPC may be dead on paper, its underlying psychology remains entirely intact. The colonial-era provision was built on the exact same premise: that a man's wandering was an issue of property rights and transactional disputes between husbands, while a woman's agency was entirely erased. By continuing to demand that a woman's departure from a marriage must be tragic or hyper-justified to be understood, our cultural imagination merely echoes the old IPC logic that viewed a wife's fidelity not as a personal choice, but as an institutional asset. If she steps out without an extreme excuse, the script ensures she meets a swift, punitive comeuppance!

Even when our screens do celebrate individual agency over marital bonds, such as a celebrated romantic narrative where the heroine returns from an unhappy marriage carrying the child of the man she truly loves, the audience cheers because the act is repackaged as cosmic destiny rather than a domestic scandal. On screen, the audience is encouraged to view obsession as devotion, recklessness as passion, and infidelity as emotional complexity. The act remains the same, but the moral evaluation changes based entirely on who the protagonist is. The protagonist is granted the “unbearable lightness” of choosing desire over duty, while the antagonist is condemned for the exact same choice.

The legal history of adultery in India is often mistaken for a story of growing social tolerance. It is nothing of the sort; it is simply a story of changing jurisdiction. The State has withdrawn from the criminal bedroom, but the civil court has not. Judges no longer ask whether an unfaithful spouse deserves imprisonment, but they must still confront the debris of broken trust, fractured families, and competing claims of dignity.

Ultimately, both the legal system and the cultural audience are engaged in the exact same exercise: trying to resolve the tension between the modern ideal of personal freedom and the ancient demand for institutional stability. But while the law must spend years searching for coherent, objective principles to navigate this wreckage, the audience sitting in the theatre remains content with a much simpler, highly personalized test: infidelity is a sin when committed by the character we are taught to hate, but a triumph of the soul when committed by the character we are taught to love.

Author is an Advocate. Views are personal.