The Court decriminalised adultery, striking down Section 497 of the Indian Penal Code, 1860.
The Court unanimously struck down Section 497 IPC. The Bench produced four concurring opinions:
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: it imposed 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. Section 497 IPC was inapplicable when a husband engaged in sexual intercourse with an unmarried woman.
Section 198(2) of CrPC specified how a complainant can file charges for offenses committed under Sections 497 and 498 IPC. Section 198(2) CrPC specified that only the husband can file a complaint for the offence of adultery.
This case was first heard before a three-judge bench headed by Chief Justice Dipak Misra.
The three-judge bench referred the matter to a five-judge Constitution Bench and 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, arguing that diluting adultery in any form will impact the 'sanctity of marriage'.
The five-judge Bench started hearing the matter from 1st August 2018 onwards. On 27th September 2017, the Bench delivered it judgment, decriminalising adultery.
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?