Adultery not a crime, Section 497 struck down by Supreme Court

The Supreme Court on Thursday announced that adultery law under Section 497 is unconstitutional and though it can be ground for civil issues including dissolution of marriage, it cannot be a criminal offence.

CJI Misra authored judgment on behalf of Justice AM Khanwilkar and himself. "Section 497 IPC and Section 198 CrPC unconstitutional. Any provision treating a woman with inequality is not Constitutional. Section 497 is manifestly arbitrary, offends dignity of women. Section 497 violates Article 14,"  said Chief Justice Dipak Misra.

"Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence. In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy. Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage," added CJI Misra.

A five-judge constitution bench headed by CJI Misra said that section 497 of the Indian Penal Code (IPC) manifestly arbitrary, offends the dignity of women and violates Article 14. However, adultery can't be a crime, unless it attracts the scope of Section 306 (abetment to suicide) of the IPC.

"Legal subordination of one sex by another is wrong. Social progression of women & views of Justice Nariman in Triple Talaq case considered. Adultery can be grounds for dissolution of marriage," said CJI Misra.

CJI Misra said, "Equality is the governing principle of a system. Husband is not the master of the wife. Mere adultery can't be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC."

Justice Rohinton Nariman said, "Section 497 an archaic law, manifestly arbitrary. Section 497 violates Articles 14 and 15. Ancient notions of man being perpetrator and woman being victim no longer holds good."

"Section 497 based on women as chattel, seeks to control sexuality of woman, hits the autonomy and dignity of woman. Section 497 perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes," said Justice DY Chandrachud.

"Adultery could be a moral wrong towards spouse and family but question is whether it should be a criminal offence?" said Justice Indu Malhotra.

A five-judge constitution bench headed by Chief Justice Dipak Misra on August 8 had reserved its verdict after Additional Solicitor General Pinky Anand, appearing for the Centre, concluded her arguments.

The hearing in the case by the bench, which also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, went on for six days and had commenced on August 1.

"It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its constitutional powers," the Centre had said.

Section 497 of the 158-year-old Indian Penal Code says: "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."

On January 5, the apex court had referred to a five-judge Constitution bench the plea challenging the validity of the penal law on adultery.

The court had taken a prima facie view that though the criminal law proceeded on "gender neutrality", the concept was absent in Section 497.