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On 27 September 2018 The Hon’ble Supreme Court removed the 158 years old law as unconstitutional. Supreme Court says that having an extra marital affair is not a criminal offence anymore.

Mayank 1


On 27 September 2018 The Hon’ble Supreme Court removed the 158 years old law as unconstitutional. Supreme Court says that having an extra marital affair is not a criminal offence anymore. Adultery is not considered as a crime in India anymore but ever since the promulgation of the Indian constitution adultery was a big issue for the dismissal and destruction of healthy marriages, severing of relationship, emergence of two different families and most importantly the plight  of the unfortunate illegitimate children who are born out of those relationships.


A sexual activity or rather a voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband also this is town as the Adultery and it is considered as the crime in Indian society. Basically it has originated from the French word “avoutre”, which means “to corrupt”. Under Section 497 of IPC   adultery is a criminal offence, until the abolishment of the legislation it prescribed a punishment of imprisonment for 5 years and fine. The offence named adultery may be a reason for filing the divorce suit in family court. The wife is not punishable for being adulterous, or even as an abettor of the offence. Section 198 Cr.P.C. deals with a “person aggrieved”. Adultery is a non-cognizable offence which means that without any warrant a policeman cannot arrest you under this section. Also, it is a billable offence. And the trial is undertaken by the first class magistrate and it is also said to be a non compoundable offence. It was observed that the marriage can be destroyed by a married man having sexual intercourse with an unmarried woman or a widow who is not penalized by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not purity of marriage which is sought to be protected and preserved, but an establishment of the right of a husband.


Section 497 IPC and Section 198(2) Cr.P.C. together constitute a legislative package to deal with the offence of adultery which has been held unconstitutional and struck down by the Supreme Court in the famous case of Joseph Shine v. Union of India, 2018 SCC

 On a reading of Section 497, it is demonstrable that women are treated as subordinate to men in as much as it lays down that when there is connivance or consent of the man, there is no offence. Women are objectified as compared to men as far as this legislation is concerned. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted. The basic tenets of the Indian constitution are violated under section 497 IPC and Section 198(2) Cr.P.C.


Section 497 dicriminates on the basis of gender which is unconstitutional, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. And adding on if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. Therefore it violates Article 14. The article clearly says that in the eyes of law every individual is equal and would be treated according to the IPC punishment, but here women are not being in the frame and charges of Adultery which is a question mark on the Equality before law that is inscribed in the constitution of India. Section 198(2) Cr.P.C. it treats the wife in unjustified manner in which a wife cannot get file any complaint. It suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.


Article 15(1) restricts the State from being discriminated on grounds  of gender it means no one is gets a biased decision on the basis of gender in short article 15(1) gives gender equality before the eyes of the law.. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, when her husband does the same. Dignity of a particular individual under the Article 21. [Right to life] Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. The Court has also recognized sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. A man, who has sexual intercourse with a married woman without the consent of her husband, is liable to be punished for adultery even if the relationship is based on consent of the woman. To ensure the faithfulness of his spouse, the man is given the power to invoke criminal sanction of the State. It underlines the notion that woman consent only to a limited autonomy on entering marriage perpetuates the notion that a woman consents to a limited autonomy on entering marriage.


The Supreme Court unanimously struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men. In four separate but concurring judgments, the five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and fell of Article 21 and Article 14. The apex court also declared Section 198(1) and 198(2) of the Cr.P.C. which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional. The five-judge bench of the Supreme Court had reserved judgment on August 8, saying that making adultery a penal offence would be irrational and violates of Article 14 of the Constitution of India. Justice Nariman termed Section 497 archaic and concurred with the judgment of the CJI and Justice Khanwilkar, saying the penal provision was violates of the rights to equality and equal opportunity to women. Justice Chandrachud said Section 497 destroyed and deprived women of dignity. “Section 497 is based on gender stereotypes of the role women. The provision is unconstitutional,” Justice Indu Malhotra, the lone woman judge on the bench, said that Section 497 was a clear violation of fundamental rights granted in the Constitution and there was no justification for the continuation of the provision.

Author(s) Name: Mayank Srivastava (Shia P.G. College, University of Lucknow)