Decriminalization of Adultery Case: The Supreme Court of India.

The Supreme Court passed a judgment on 27 September 2018 in which it decriminalized adultery by striking down the provision of Section 497 of IPC. This was seen in the case of Joseph shine Vs Union of India (AIR 2018 SC 4898) the case was presided over by JUSTICE DIPAK MISHRA, JUSTICE A. KHANWILKAR, JUSTICE R. F. NARIMAN, JUSTICE D. Y. CHANDRACHUD, JUSTICE INDU MALHOTRA


The constitutionality of Section 497 of the Indian Penal Code, 1860 (IPC), which dealt with the criminal offense of adultery, and Section 198(2) of the Code of Criminal Procedure, 1973 (CrPC), which stated that only the husband of a person accused of adultery would be considered to be harmed by the commission of an offense under Section 497, was challenged in 2017 by Joseph Shine, an Indian citizen living in Italy.

A number of times in the past, the Supreme Court of India was asked to rule on the constitutionality of sections 198 of the Criminal Procedure Code and 497 of the Indian Penal Code.

The IPC’s Section 497 made adultery a crime by holding a man responsible for having sex with another man’s wife. Adultery carried a five-year maximum sentence for punishment. However, women were not subject to prosecution. When a married man had sex with an unmarried lady, Section 497 of the IPC was not relevant.

The procedure for charging offenses committed in violation of Sections 497 and 498 IPC as outlined in Section 198(2) of the CrPC. Only the husband may file a complaint for the offense of adultery, according to Section 198(2) CrPC.

The Court examined the accuracy of earlier rulings that had affirmed Section 497’s constitutional validity, including Yusuf Abdul Aziz, Sowmithri Vishnu, and V. Revathi. A three-judge panel led by former Chief Justice Dipak Misra originally heard this matter.

Upon reading Section 497 of the IPC, the three-judge court noted that it appears to provide relief to the wife by treating her as a victim and sent the case to a five-judge Constitution Bench. The fact that only one of them is held accountable for a crime although both of them do is equally important to notice. Normally, gender neutrality is a basis for criminal law, but this section appears to be lacking this principle.

Issues the court raised were:

  1. Does Section 497 need to be decriminalized because it imposes disproportionate penalties?
  2. Whether the Section 497 exemption for married women breaches their constitutional right to equality.
  3. Should women be considered offenders under Section 497 in order to make it gender-neutral?


The Supreme Court ruled that Section 198(2) of the CrPC was unconstitutional to the extent that it applied to Section 497, IPC, and that Section 497 of the IPC was invalid because it violated Articles 14, 15, and 21 of the Constitution. Several earlier rulings maintaining the crime of adultery were overturned by this decision.

The Court determined that Section 497 was archaic and unconstitutional because it violated a woman’s autonomy, dignity, and right to privacy. It claimed that by endorsing a view of marriage that undermined actual equality and applying sanctions to a gender-based approach to a man and a woman’s relationship, the impugned clause violated a woman’s right to life and personal liberty. It claimed that placing an excessive amount of emphasis on the aspect of the husband’s complicity or permission translated to the woman’s subjugation. The Supreme Court upheld the Constitution’s basic right to sexual privacy.

Additionally, it was determined that Section 497 ignored substantive equality because it upheld the notion that women were not equal partners in marriages and that they were incapable of giving their own consent to sexual acts in a culture and legal system that viewed them as the sexual property of their spouses. As a result, it was determined that this Section broke Article 14. The courts concluded that Section 497 violated Article 15’s anti-discrimination clause since it was based on gender stereotypes. Additionally, it was determined that it violated Article 21 since it deprived women of their fundamental rights to privacy, autonomy, and the enjoyment of their own sexuality.

Although adultery was no longer a crime, the court recognized that it was nonetheless a civil wrong and a viable reason for divorce. It was said that while adultery belonged within the category of personal difficulties, criminal offenses were committed against society as a whole. The Court ruled that by criminalizing adultery, the State had intruded into people’s private affairs. The Court also ruled that when adultery has occurred, the husband and wife should be free to decide together based on their own judgment.


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