Adultery No Longer a Crime: Supreme Court Strikes Down Section 497 IPC as Arbitrary and Against Women’s Dignity

A writ petition under Article 32 challenged the validity of Section 497 IPC (Misra CJI, para 5). A three-Judge Bench, noting Yusuf Abdul Aziz, Sowmithri Vishnu, V. Revathi and W. Kalyani, found the provision prima facie lacking gender neutrality and referred it to a Constitution Bench (Misra CJI, para 5). Only the man was punishable, and the woman could not be punished even as an abettor (Malhotra J., para 11). Section 198 CrPC treats only the husband as a person aggrieved who may complain (Misra CJI, paras 10-11). The Court confined itself to the validity of Section 497 IPC and Section 198 CrPC (Misra CJI, para 18).

Section 497 treats a married woman as the property of her husband, since there is no offence if he consents or connives, and it is manifestly arbitrary under Article 14; it does not even reach a relationship with an unmarried woman or a widow (Misra CJI, paras 22-23). It creates invidious distinctions based on gender stereotypes and offends women's dignity under Article 21 (Misra CJI, para 41). Adultery can ground a civil wrong and divorce, but criminalising it would be a retrograde step against transformative constitutionalism (Misra CJI, paras 42, 55). Adultery has no separate space under Sections 306 and 498-A IPC either (Misra CJI, para 52). When the substantive offence goes, Section 198 CrPC must go too (Misra CJI, para 56). Nariman J. held the provisions violate Articles 14, 15(1) and 21 (Nariman J., paras 25, 28). Chandrachud J. held that criminal law must accord with constitutional morality and Section 497 denies privacy and sexual autonomy (Chandrachud J., para 67). Malhotra J. struck down Section 198(2) CrPC only so far as it applies to adultery (Malhotra J., para 18).