Supreme Court Declares Section 497 IPC and Section 198 CrPC Unconstitutional, Decriminalizing Adultery in Landmark Judgment

Constitution Bench holds adultery law discriminatory, violative of Articles 14, 15, and 21 of the Constitution, striking down archaic provisions that treated women as property and denied them agency

In a historic and transformative verdict delivered on September 27, 2018, the Constitution Bench of the Supreme Court of India, led by Chief Justice Dipak Misra and comprising Justices A.M. Khanwilkar, R.F. Nariman, Dr. Dhananjaya Y. Chandrachud, and Indu Malhotra, unanimously struck down Section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Code of Criminal Procedure (CrPC) as unconstitutional. This judgment decriminalizes adultery, ending a colonial-era provision that was fundamentally discriminatory and based on archaic notions of patriarchy and gender stereotypes.

The petition challenging the constitutional validity of Section 497 IPC was filed by Joseph Shine, contesting the law that criminalized adultery only when a man had sexual intercourse with the wife of another man without the husband's consent or connivance. The law exempted the wife from prosecution and did not permit the wife of an adulterous husband to prosecute him or his paramour. Section 198 CrPC restricted the right to prosecute adultery exclusively to the husband, further entrenching gender inequality.

The Bench meticulously examined the constitutional principles under Articles 14 (Right to Equality), 15 (Prohibition of discrimination on grounds of sex), and 21 (Right to Life and Personal Liberty) of the Indian Constitution, alongside societal changes and international jurisprudence. The Court emphasized the significance of individual dignity and autonomy, particularly the sexual autonomy and privacy of women as constitutional rights inseparable from liberty and equality.

Chief Justice Dipak Misra, writing for himself and Justice Khanwilkar, observed that the law treated women as the property of their husbands, denying them agency and reducing them to chattels. The provision's requirement of the husband's consent or connivance for criminality effectively subordinated women, violating their dignity and liberty under Article 21. The Court also noted that criminalizing adultery intrudes into the private and intimate sphere of marriage, an area better regulated by civil remedies such as divorce rather than penal sanctions.

Justice Chandrachud, in a detailed concurring opinion, highlighted the gendered nature of the law, pointing out that it perpetuated stereotypes of women as passive and men as seducers. He stressed that the law denied substantive equality and violated the constitutional guarantees by making only men liable for adultery and excluding women from prosecuting their adulterous husbands. The judgment condemned the law for reinforcing patriarchal norms and failing to recognize women’s autonomy and dignity.

Justice Nariman concurred, tracing the historical and comparative perspectives of adultery laws globally. He noted that while adultery was once a crime to protect male proprietary interests, most contemporary jurisdictions, including Japan, South Korea, and many Western countries, have decriminalized adultery, recognizing it as a private matter. He emphasized that criminal conversation and adultery as a tort historically protected husbands' property rights rather than women's dignity.

Justice Indu Malhotra, while concurring with the majority in striking down Section 497 and the relevant part of Section 198 CrPC, opined that adultery should remain a ground for civil remedies like divorce but not a criminal offence. She discussed the doctrine of coverture and the historical background that led to the enactment of Section 497, emphasizing its anachronistic nature incompatible with modern constitutional values.

The Court explicitly overruled previous decisions in Sowmithri Vishnu (1985) and V. Revathi (1988), which had upheld the constitutionality of these provisions, stating that those judgments failed to appreciate the evolution of constitutional morality, gender equality, and the autonomy of women.

The judgment also referred to international precedents, such as the South Korean Constitutional Court striking down adultery laws for violating privacy and self-determination rights, and the Ugandan and South African courts invalidating similar provisions on grounds of equality and dignity.

This ruling is a watershed moment for gender justice in India, affirming that the law must reflect constitutional morality rather than outdated patriarchal values. The Supreme Court has unequivocally declared that adultery is not a criminal offence under Indian law and that the dignity, privacy, and equality of women must be upheld.

Statutory provisions

Section 497 IPC, Section 198 CrPC, Articles 14, 15(1), and 21 of the Constitution of India

Joseph Shine v. Union of India (SC)(Constitution Bench) : Law Finder Doc Id # 1248720