Adultery law in India

Because of this problematic interpretation, the Supreme Court in December 2017 decided to accept the public interest litigation in which it has been prayed that the Court strikes down or completely does away with Section 497 of the Indian Penal Code entirely.

It has been argued that the section violates two articles of the Constitution of India- Article 14 and Article 15.

Article 14 reads as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."[6]

On accepting this petition, the Court in its initial observations noted that this was not the first petition challenging the section - debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus "creates a dent on the individual independent identity of the woman."[7]

The arguments by the party opposing this decriminalisation- the Centre- states that the section "supports, safeguards and protects the institution of marriage... Stability of marriages is not an ideal to be scorned." It further argues that if the petition is allowed, then "adulterous relations will have more free play than now." As an alternative, it provides that the recommendations of the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee recommended that the wording of the section be changed to: "Whoever has sexual intercourse with the spouse of any other person is guilty of adultery..." to tackle the problem of gender bias which arises from the reading of the current section.[8]

The Court began to hear the arguments on this petition on 1 August 2018. The Court said that if the party challenging this section can simply prove that it violates Article 14 of the Constitution of India, then the section will be struck down.[9]

A five-judge Constitution bench of the Supreme Court on 27 September 2018 unanimously ruled to scrap Section 497 and it is no longer as a offence in India

While reading the judgment, Chief Justice Dipak Misra said, "it (adultery) cannot be a criminal offence," however it can be a ground for civil issues like divorce.[10]

In October 2017, 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 CrPC.

Section 497 IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Section 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sections 497 and 498 IPC.

Advocate Jayna Kothari, Executive Director of CLPR, represented the intervenor Vimochana. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in Puttaswamy case. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution.

Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside of marriage. The same restrictions, however, did not apply in case of the husband. Section 497 violates right to privacy as well as liberty of women by discriminating against married women and perpetrating gender stereotypes.

On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.