Decriminalisation of Adultery

Case Description

The Court unanimously struck down Section 497 IPC. The Bench produced four concurring opinions:

• Chief Justice Dipak Misra (on behalf of Justice Khanwilkar and himself)
• Justice Nariman
• Justice Chandrachud
• Justice Malhotra

Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the Criminal Procedure Code, 1973.

Section 497 IPC criminalised adultery: it imposed culpability on a man who engages in sexual intercourse with another man’s wife.  Adultery was punishable with a maximum imprisonment of five years. Women though were exempted from prosecution. Section 497 IPC was inapplicable when a married man engaged in sexual intercourse with an unmarried woman.

Section 198(2) of CrPC specified how a complainant may file charges for offences committed under Sections 497 and 498 IPC. Section 198(2) CrPC specified that only the husband may file a complaint for the offence of adultery.

The Court reviewed the correctness of the precedents – Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi – which had in the past upheld Section 497 as constitutionally valid.

This case was first heard before a three-judge bench headed by the then Chief Justice Dipak Misra.

The three-judge bench referred the matter to a five-judge Constitution Bench and noted: ‘Prima facie, on a perusal of Section 497 of IPC, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence, but the other is absolved. ..Ordinarily, the criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said concept is absent.’

On 11 July the Centre filed an affidavit, arguing that diluting adultery in any form will impact the ‘sanctity of marriage‘.

The five-judge Bench started hearing the matter from August 1st 2018 onwards. On September 27th 2018, the Bench delivered its judgment, decriminalising adultery.

On November 5th, 2020 the Union of India filed a miscellaneous application asking the Court to provide clarity on how the Judgment would be applied to members of the Armed Forces. This is with specific reference to Section 69 of the Army Act, 1950 which punishes members of the armed forces for committing civil offences. The Union sought to clarify whether this includes adultery practiced by armed forces members.

On January 31st, 2023 a 5-Judge Constitution Bench led by Justice K.M. Joseph passed the final order on the matter. The Bench clarified that while passing the Judgment in 2018, the Court was not concerned with the laws of the Armed Forces and therefore did not stand in their way.