By- Tanya Gupta


In October 2017, Joseph Shine, a non-inhabitant Keralite, documented public intrigue suit under Article 32 of the Constitution. The appeal tested the legality of the offense of infidelity under Section 497 of the IPC read with Section 198(2) of the CrPC.

Section 497 IPC condemned infidelity/ cheating by forcing culpability on a man who takes part in intercourse with someone else’s better half. Infidelity was culpable with a greatest detainment of five years.

Ladies, including consenting parties, were absolved from indictment. Further, a wedded lady couldn’t deliver a grievance under Section 497 IPC when her significant other occupied with intercourse with an unmarried lady.

This was considering Section 198(2) of CrPC which indicated how a complainant can document charges for offenses submitted under Sections 497 and 498 IPC.

Advocate Jayna Kothari, Executive Director of Centre of Law & Policy Research, spoke to the intervener Vimochana. She attacked the provision which ordered infidelity as an offense by conjuring the central right to security, as perceived by the Supreme Court in Puttaswamy case.

She contended that the option to hint affiliation is an aspect of security which is ensured under the Constitution. Section 497 was unlawful as the very reason for condemning infidelity was the presumption that a lady is considered as the property of the spouse and can’t have relations outside of marriage.

Similar limitations, nonetheless, didn’t matter if there should arise an occurrence of the spouse. Section 497 abuses right to protection just as freedom of ladies by oppressing wedded ladies and executing sexual orientation generalizations.

On 27.07.2018, a 5 Judge Bench of the Supreme Court consistently struck down Section 497 of the Indian Penal Code as being violative of Articles 14, 15 and 21 of the Constitution.

Section 497 IPC condemned cheating: it forced culpability on a man who participates in intercourse with another man’s better half. Infidelity was culpable with a greatest detainment of five years.

Ladies however were excluded from arraignment. Section 497 IPC was irrelevant when a wedded man occupied intercourse with an unmarried lady. Section 198(2) of CrPC indicated how a complainant may record charges for offenses submitted under Sections 497 and 498 IPC.

Section 198(2) CrPC indicated that the spouse may document a grumbling for the offense of infidelity. The Court explored the rightness of the points of reference – Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi – which had in the past maintained Section 497 as intrinsically legitimate.


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 11 July 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 2018, the Bench delivered its judgment, decriminalizing adultery.

[1] (2019) 3 SCC 39.

Case Notes

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