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Supreme Court Strikes Down Section 497 of Indian Penal Code - (27 Sep 2018)


In a historical judgment, Supreme Court has struck down 158 Year Old Section 497 of Indian Penal Code, 1860 (IPC) which criminalizes adultery, as unconstitutional. Writ petition named Joseph Shine v. Union of India was filed under Article 32 of the Constitution of India questioning the validity of Section 497 of IPC. A five-judge Constitution bench observed that, Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Chief Justice of India (CJI) Dipak Misra said adultery can be a ground for divorce but not a criminal offence. CJI Misra and Justice Khanwilkar said that, mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner's adulterous relation, then if evidence produced, it could be treated as an abetment to suicide.

According to Section 497 of IPC, “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. An imprisonment for a term which may extend up to five years, or fine, or both is imposed on offence of adultery. As per the interpretation, Apex Court observed that, provision treats women as subordinate to men as it lays down that, when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. 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.

Justice Indu Malhotra observed that, any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination. A law which deprives women of the right to prosecute is not gender-neutral. Under Section 497 of IPC, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14 of Constitution.

As Section 497 denies guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution it is held arbitrary; accordingly the decisions in Sowmithri Vishnu and Revathi are overruled. Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution. Further, the Apex Court declared Section 198(1) and 198(2) of the Code of Criminal Procedure, 1973 (CrPC), which provides that a husband can bring charges against the man with whom his wife committed adultery as unconstitutional.


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