Case Description

This case will decide the constitutional validity of Section 497 of the Indian Penal Code, 1860 (“IPC”), which criminalises adultery.

Background

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 of the IPC criminalises adultery: it imposes culpability on a man who engages in sexual intercourse with another person’s wife.  Adultery is punishable with a maximum imprisonment of five years. Woman, a consenting party, is exempted from prosecution. This provision is inapplicable when a husband is sexually involved with an unmarried woman.

 

Section 198(2) of  CrPC allows only the husband  to file a complaint for the offence of adultery.

 

The court will review correctness of the precedents - Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi - which have in the past upheld Section 497 to be constitutionally valid.

 

This case was first heard before a 3 judge bench headed by Chief Justice Dipak Misra.

 

The 3 judge bench while referring the matter to a constitutional bench with 5 judges noted  – “ Prima facie, on a perusal of Section 497 of IPC, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence, but the other is absolved. ..Ordinarily, the criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said concept is absent. "

 

On July 11th the Centre filed an affidavit: it argued that diluting adultery in any form will impact the "sanctity of marriage".

 

The 5 judge bench started hearing the matter from 1st August 2018.

 

Issues

1) Whether exemption granted to married women under Section 497 violates the right to equality under the Constitution?

2) Whether Section 497 should be made gender neutral by including women as offenders?

3) Whether Section 497 is an excessive penal provision which needs to be decriminalised?

Judges