When a Wife Gets Pregnant by Someone Else: What Indian Law Actually Says
When a wife gets pregnant by someone else, it creates one of the most emotionally devastating and legally complex situations a family can face. If you’re reading this, you might be the betrayed spouse, a concerned family member, or simply trying to understand how Indian law handles such situations. This guide will walk you through every legal angle – without the complicated jargon that makes family law feel impossible to understand.
The scenario where a wife gets pregnant by someone else raises immediate questions: Can the husband divorce? What about the child? Does the biological father have any obligations? The answers are nuanced, and often contradict what many people believe they know about Indian family law.
Table of Contents
The Big Shock: India’s Law Protects the Child, Not Your “Truth”
Here’s what surprises most people: If a wife gets pregnant by someone else while married, Indian law doesn’t actually care about biological truth. Instead, it protects the child born to a married woman under a principle called “Presumption of Legitimacy.”
Section 112 of the Indian Evidence Act: The Law That Changes Everything
Under Section 112 of the Indian Evidence Act, 1872 (now Section 116 of the Bharatiya Sakshya Adhiniyam, 2023), the law states clearly:
“The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
This means: A child born to a married woman is automatically presumed to be the husband’s child. No exceptions. No DNA test can change this unless the husband proves something called “non-access” (meaning the couple had no opportunity for sexual intercourse during the conception period).
Why does the law do this? Because courts believe protecting a child’s legitimacy and inheritance rights is more important than uncovering biological truth. This philosophy has been reaffirmed by Indian courts repeatedly, most recently by the Supreme Court in 2025.
Understanding “Non-Access”: The Only Way to Rebut Legitimacy
When a wife gets pregnant by someone else, the husband cannot simply produce a DNA test and declare victory. Instead, he must prove “non-access”—that he and his wife had no opportunity for sexual intercourse during the conception window.
What Counts as Non-Access?
Valid proof of non-access includes:
- Husband was in jail or hospital during the entire conception period
- Husband and wife were separated by court order
- Documentary evidence they lived in different cities
- Mutual written agreement to abstain from sexual relations
What does NOT count as non-access:
- Wife’s confession of the affair
- Photographs of wife with the lover
- DNA test showing the child isn’t biologically the husband’s
- Witness testimony that the couple “didn’t seem close”
The burden is extremely heavy. Courts require what’s called “strong preponderance of evidence”—not just “probably yes” but “almost certainly yes.” A single vacation, a chance meeting, or even an anniversary night can destroy the entire non-access claim.
Why Is This So Hard to Prove?
Because marital relations are private. Unless you have concrete proof (like documented medical records showing one spouse was hospitalized for the entire conception window), courts assume access occurred.
When a Wife Gets Pregnant by Someone Else: Your Divorce Options
The good news: If a wife gets pregnant by someone else, you have clear grounds for divorce. The bad news: Proving it and navigating the process is complicated.
Ground 1: Adultery (The Most Direct Path)
Under Section 13(1)(i) of the Hindu Marriage Act, 1955, adultery is a ground for divorce. Here’s what you need to know:
You must prove:
- Voluntary sexual intercourse happened
- It was with someone other than the spouse
- The intercourse occurred after marriage
What you DON’T need to prove:
- That the entire relationship was ongoing
- That intercourse happened repeatedly
- “Proof beyond reasonable doubt” (this is NOT a criminal trial)
A single instance of voluntary intercourse is enough. This makes adultery one of the stronger grounds when a wife gets pregnant by someone else.
Evidence can include:
- Communications (WhatsApp chats, emails) showing the affair
- Witness testimony from people who knew about it
- Photographs of cohabitation
- Hospital records showing pregnancy
- Circumstantial evidence (her staying at his place, being seen together regularly)
Ground 2: Cruelty (Often Underestimated)
Section 13(1)(ia) of the Hindu Marriage Act allows divorce on grounds of “cruelty”—conduct that causes grave mental or physical suffering.
When a wife gets pregnant by someone else, you can argue mental cruelty:
- The betrayal causes severe emotional pain
- Public humiliation from the affair
- Violation of your trust and marriage vows
- Association with another man constitutes torture of the spirit
Courts increasingly recognize that discovering a wife’s pregnancy by another man causes severe mental suffering, making cruelty grounds quite strong.
Ground 3: Annulment Under Section 12 (If the Pregnancy Existed Before Marriage)
If a wife got pregnant by someone else before marrying you, and you didn’t know about it at marriage, you might file for annulment (making the marriage void).
Requirements:
- The pregnancy must have occurred before marriage
- You must not have known about it when you married
- You must file within one year of marriage
- You must not have cohabited with her after discovering the pregnancy
This is harder to prove but, if successful, completely voids the marriage.
Do u know Difference Between Paternity and Legitimacy?
Read Can the Wife Inherit Any Property After Killing Her Husband?
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Case where Pre-Wedding Pregnancy – Court Stamps on Illegitimacy!
The Maintenance Question: Who Pays for the Child?
This is where Indian law gets brutally practical. If a wife gets pregnant by someone else during marriage, the husband is legally responsible for the child’s maintenance unless he can prove non-access.
Child Maintenance Under Section 125 CrPC
The husband must provide:
- Food and shelter
- Education expenses
- Medical care
- Clothing and basic necessities
- Amount depends on the husband’s earning capacity and the child’s standard of living
Important twist: Even if a DNA test proves the child isn’t biologically the husband’s, courts often hold the husband responsible if he:
- Lived with the child as his own
- Called himself the father
- Provided for the child’s needs
The biological father’s role: If you establish paternity of the biological father, you can pursue him for maintenance too. But this usually happens in addition to, not instead of, the husband’s obligation.
What About Spousal Maintenance?
If a wife gets pregnant by someone else, can the husband reduce or stop paying her maintenance? Yes—but it’s complicated.
If the wife is “living in adultery” (meaning the affair is ongoing, not a single mistake), the court may reduce or deny her maintenance. However:
- Even adulterous wives often receive reduced maintenance, not zero maintenance
- Courts consider her financial needs and earning capacity
- A single affair (past tense) might not disqualify her
- You must prove she’s “living in adultery,” meaning actively cohabiting with the lover
Bottom line: If a wife gets pregnant by someone else, expect to still pay maintenance, but you have grounds to seek a reduction.
Custody and Guardianship: The Child Stays Protected
When a wife gets pregnant by someone else, one huge question emerges: Who gets custody of the child?
The Child’s Best Interests Rule
Indian courts apply one simple principle: What’s best for the child? Not: “What does the husband deserve?” or “How do we punish the wife?”
Factors courts examine:
- The child’s age (small children usually stay with mother)
- The child’s emotional attachment to each parent
- Each parent’s financial capacity
- Each parent’s moral character
- Who will provide better education and stability
The Moral Character Consideration
Here’s where it gets interesting: A mother’s affair doesn’t automatically disqualify her from custody. In fact, courts have ruled that a mother’s extramarital affair cannot be the sole ground for denying custody (Delhi High Court, 2024).
What matters is: Can she parent effectively? Not: Is she morally pure?
However, if the mother’s involvement with the lover affects the child (like bringing the lover into the home, exposing the child to inappropriate situations), courts will factor that in.
The Father’s Rights
Even if the mother has primary custody, the father (legal or biological) typically gets:
- Visitation rights
- Access to the child’s education and medical records
- Role in major life decisions
- Shared parenting arrangements
Important: When a wife gets pregnant by someone else, the husband’s parental rights aren’t automatically stripped away. He remains a legal guardian.
Inheritance and Succession: The Child’s Future is Protected
Perhaps most importantly: If a wife gets pregnant by someone else during marriage, the child born is completely legitimate for inheritance purposes.
Under the Hindu Succession Act, 1956
The child can inherit:
- The father’s self-acquired property (100%)
- The father’s share of ancestral property
- The mother’s property
- Can become a coparcener (joint owner) in family property
This happens regardless of biological paternity. The law is clear: Once Section 112/116 legitimacy is established, inheritance follows automatically.
Why This Matters
A child born from a wife’s affair with another man will inherit from the presumed father’s estate just like any other child. This protection exists because courts believe children shouldn’t suffer financially for their parents’ mistakes.
Important Recent Development: Adultery is No Longer a Crime
In 2018, the Supreme Court ruled in Joseph Shine v. Union of India that Section 497 of the Indian Penal Code (criminalizing adultery) was unconstitutional.
What this means:
- No criminal punishment for adultery
- No imprisonment for the wife or her lover
- No criminal fines
- The woman’s autonomy and privacy are legally protected
What it doesn’t mean:
- Adultery isn’t grounds for divorce (it absolutely is)
- The husband has no remedies (he has many—just civil, not criminal)
- Adultery becomes irrelevant (it’s still highly relevant in family courts)
This is important: When a wife gets pregnant by someone else, you can’t get police involved or pursue criminal charges. Your remedies are purely through civil/family courts.
Step-by-Step: What to Do If a Wife Gets Pregnant by Someone Else
Immediate Actions (First Few Days)
- Don’t panic or make public declarations. Everything you say can be used against you in court.
- Consult a family law advocate immediately. Don’t rely on friends’ or family members’ advice. Family law is too complex, and mistakes early on can cost you years and money.
- Document everything discreetly. If you have communications proving the affair, save them (legally obtained only). Don’t hack phones or break privacy laws.
- Decide: Do you want to stay married or divorce? This determines your next steps.
Medium-Term Actions (Weeks 1-4)
- If divorcing: File a divorce petition citing adultery and/or cruelty. You don’t need the wife’s permission or consent.
- If non-access applies: Gather evidence immediately. Hospital records, travel documents, testimony from witnesses—act fast before memories fade.
- Ensure child support: Whether married or divorcing, file for maintenance of the child under Section 125 CrPC to ensure financial security.
- Preserve financial records: If property division or maintenance disputes arise, document your earnings, assets, and liabilities.
Long-Term Actions (Months 2+)
- Stay emotionally grounded: Divorce is traumatic. Seek counseling or therapy. Your mental health directly impacts your legal decisions.
- Evaluate settlement options: Sometimes settling (even unfavorably) is faster and cheaper than 2-3 years of court battles.
- Protect the child’s welfare: Regardless of custody outcomes, ensure the child has both parents’ love and financial support.
FAQ: Common Questions About This Situation
Q1: If a wife gets pregnant by someone else, can the husband refuse to acknowledge the child?
A: Legally, yes—he can file for declaration of non-paternity. But he must prove non-access. If he can’t prove it, courts will hold him legally responsible for the child as if he were the biological father. Many husbands choose to acknowledge the child to maintain their relationship with the child, even in divorce.
Q2: Can a DNA test override Section 112 presumption?
A: Not by itself. DNA can be used as evidence to support non-access claims, but courts won’t order DNA testing routinely. Even with a DNA test showing the child isn’t biologically the husband’s, if access is possible (even once during conception window), the presumption stands.
Q3: If a wife gets pregnant by someone else, can the biological father be made to pay maintenance?
A: Yes, but this is a separate case. You’d file a suit for declaration of paternity and maintenance against the biological father. However, the husband is still primarily liable unless non-access is proven.
Q4: What if the wife admits to the affair but says it was a one-time mistake?
A: This actually helps your divorce case (adultery ground proven), but it might hurt your maintenance reduction case. Courts grant spousal maintenance more easily if the affair was isolated rather than ongoing “living in adultery.”
Q5: Can the husband get custody of the child to avoid paying maintenance?
A: Possibly, but courts look at child welfare first, not parent-benefit. If the mother is a capable parent, she often gets custody even if the father could provide better financially. However, the father would pay less maintenance if he has primary custody.
Q6: What’s the timeline for a divorce when a wife gets pregnant by someone else?
A: If contested (wife doesn’t agree), 2-3 years minimum through family courts. If uncontested mutual divorce, 6-12 months. Supreme Court cases average 5-7 years. During this time, the husband is often responsible for maintenance.
Q7: Can the husband take the lover to court?
A: Probably not directly. Adultery is between spouses. However, if the lover enticed the wife away (criminal seduction under old laws), there might be routes, but modern law provides little remedy against the lover directly.
Q8: What if the wife threatens to deny the husband access to the child?
A: This is illegal parental alienation. The husband can file for contempt of court and seek enforcement of visitation rights. Courts take this seriously.
Q9: Does the child born from the affair have the right to the husband’s surname and social status?
A: Yes. Once presumed legitimate, the child has all rights of a legitimate child, including inheritance, succession, and sharing the father’s surname.
Q10: Can the husband force the wife to undergo DNA testing against her will?
A: Not easily. Courts balance the child’s privacy and dignity against the husband’s right to know. Most courts will refuse to order DNA testing of a child without strong additional evidence.
For Indian Lawyers: Key Case Law and Statutory References
Landmark Decisions:
- Joseph Shine v. Union of India (2018): Decriminalized adultery
- Kamti Devi v. Poshi Ram: Non-access is the only way to rebut Section 112 presumption
- Delhi High Court (2024): Extramarital affair cannot be sole ground for custody denial
- Supreme Court (2025): Reaffirmed that Section 112 presumption is near-absolute; privacy and dignity of child paramount
Applicable Statutes:
- Hindu Marriage Act, 1955 (Sections 11, 12, 13, 16)
- Indian Evidence Act, 1872 (Section 112) / Bharatiya Sakshya Adhiniyam, 2023 (Section 116)
- Code of Criminal Procedure, 1973 (Section 125) / Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 144)
- Guardians and Wards Act, 1890
- Hindu Succession Act, 1956
Read Adultery and Divorce in India: Law, Reality, and Your Rights
Final Thoughts: When a Wife Gets Pregnant by Someone Else
When a wife gets pregnant by someone else, it feels like your world has collapsed. The emotional betrayal is real and devastating. But Indian law, surprisingly, doesn’t rush to punish anyone or declare biological truth. Instead, it focuses on one thing: protecting the child.
This might feel unfair if you’re the betrayed spouse. But consider it from the child’s perspective—a child who had no role in the parents’ choices. Indian law says: This child’s legitimacy, inheritance, and welfare cannot be compromised because of parental infidelity.
Your remedies are strong – divorce on adultery and cruelty grounds, maintenance reduction, custody rights. But they’re civil remedies, not criminal, and they take time.
The best course of action: Consult a family law advocate within days. Emotions are high and mistakes are expensive. Professional guidance can help you understand what’s truly achievable in your specific situation and what you should realistically expect from the legal system.
Remember: When a wife gets pregnant by someone else, the law isn’t about punishmentit – ‘s about justice for everyone involved, especially the child.
About the Author
This article draws on current Indian family law statutes, Supreme Court precedents (through 2025), and the lived experiences of families navigating these situations. It’s written for both legal professionals and general readers seeking to understand a deeply personal legal challenge.
Last Updated: December 2025
Jurisdiction: India (primarily Hindu Marriage Act and General Indian Law)
Disclaimer: This is educational content, not legal advice. Consult a qualified family law advocate for your specific situation.