Context: A five-judge Review Bench led by Chief Justice of India upheld a 2018 Constitution Bench judgement which had struck adultery out of the penal statute book.

Section 497:Adultery (Read down)

  • ‘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 offense of rape, is guilty of the offense of adultery, and shall be punished’.
    • In such cases, the wife shall not be punishable as an abettor.
  • Analysis
    • It treats a married woman as the commodity of her husband.
    • Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair. 
    • The provision is a reflection of the social dominance of men prevalent 150 years ago.

SC judgment, 2018:

  • The original judgment in 2018 was by a Constitution Bench, with following observations
    • Section 497 (adultery) of the Indian Penal Code cannot “command” married couples to remain loyal to each other for the fear of penal punishment.
    • Two individuals may part if one cheats, but to attach criminality to infidelity is going too far.
    • There was no data whatsoever to support claims that the abolition of adultery as a crime would result in “chaos in sexual morality” or an increase in the instances of divorce.
    • Section 497 is based on the Doctrine of Coverture. This doctrine, not recognized by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights.
  • The original judgment in 2018 was based on a writ petition filed by a Kerala resident, Joseph Shine.
  • The judgment said that the 158-year-old law was unconstitutional and is violative of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
  • The Bench had also held that Section 198 (2) of the CrPC, which gave the cuckolded husband the exclusive right to prosecute his wife’s lover, was manifestly arbitrary.
  • On the other hand, the verdict had said that adultery can however be a ground for civil remedy like the dissolution of marriage.


Image Source: TH