Judgment in Plain English

Decriminalisation of Adultery

On 27th September 2018, a five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalising adultery. It struck down Section 497 IPC on the grounds that it violates Articles 1415 and 21 of the Constitution. The Bench held that the section is an archaic and paternalistic law, which infringes upon a woman’s autonomy and dignity. The Bench also read down Section 198 of the Code of Criminal Procedure Code (CrPC). 198(2) CrPC specifies that only a husband can file charges for offences under Section 497.


The Bench overruled its judgments in Sowmithri VishnuVishnu Revathi, and Y Abdul Aziz. These judgments had upheld Section 497 as constitutionally valid.


The Bench produced four separate concurring opinions. Chief Justice Misra wrote an opinion on behalf of Justice Khanwilkar and himself. Justice NarimanJustice Chandrachud and Justice Malhotra wrote concurring opinions. Below is a summary of each of the opinions.


Chief Justice Dipak Misra

CJI Misra wrote an opinion on behalf of Justice Khanwilkar and himself. CJI Misra struck down Section 497 IPC. He stated that Section 497 discriminates against women, treating them with indignity and inequality. He declared that legal subordination of one sex to another is wrong in itself. He concluded that Section 497 IPC violates Articles 14, 15 and 21 of the Constitution. He further held Section 198(2) CrPC as unconstitutional. Section 198(2) deals with the procedure for filing a complaint in relation to adultery. He stated, ‘when the substantive provision goes, the procedural provision has to pave the same path’.


Speaking on gender equality, CJI Misra declared that the Court could no longer allow women to be treated as the property of men. He emphasised that the Court has evolved a progressive jurisprudence on constitutionally protected liberties and, recently, conferred several rights to women. He referred to several progressive Constitution Bench judgments which aimed to protect women’s liberties, focusing on Justice Nariman’s concurring opinion in Triple Talaq. Accordingly, he held that Section 497 violates Article 14 of the Constitution, stating it is manifestly arbitrary and creates excessive and disproportionate distinctions based on gender stereotypes. He declared that the Court cannot allow provisions which treat the husband as his wife’s master to remain on the statute books. He emphasised that the Court cannot deprive women of their right to equality.


CJI Misra also dealt with the question of whether Section 497 is violative of Article 21 of the Constitution. Article 21 guarantees personal liberty and dignity. He answered the question in the affirmative, observing that a husband cannot be his wife’s monarch. He said the invidious distinctions created by Section 497 curtail the dignity of a woman and severely restrict her autonomy.


Justice Misra observed that while adultery could be a civil wrong, it cannot be a criminal offense. He held that the State could not criminalize actions occurring within the private realm of marriage. He opined that adultery cannot be a crime and remain consistent with principles of criminal liability established in previous Supreme Court cases, such as Central Inland Water Transportation and Common Cause. He concluded that to criminalize adultery would be a regressive step for the Supreme Court, which has repeatedly spoken of the transformative nature of the Constitution (e.g. see judgment in Navtej S Johar).


He distinguished the offence under Section 497 IPC from the one under Section 498A IPC. He stated that Section 498A involves persons other than the husband and thus State intervention in such matters did not amount to an intrusion into the privacy of the matrimonial sphere. He held that, by contrast, criminalizing Section 497 IPC would be an extreme intrusion into privacy and to treat it as a crime would be unwarranted in law.


Justice Rohinton Nariman

Justice Nariman delivered a separate opinion, concurring with Chief Justice Misra’s decision. He struck down Section 497 IPC on the grounds that it violates Articles 14, 15(1) and 21. He also read down Section 198(2) CrPC on the same grounds. Justice Nariman stated that the nature of the offence under Section 497 IPC is based on a paternalistic notion of a ‘woman as chattel’.


He drew a distinction between the offences of bigamy and adultery to highlight that where the former punished the person indulging in bigamy, adultery was premised on protecting the proprietary interest of a man in his wife, and therefore punished a third party.


Justice Nariman emphasised that Section 497 is an archaic law, which has outlived its purpose.  He briefly referred to the background in which Section 497 was enacted to bring forth the rationale behind its inclusion in the Penal Code. He stated that the social basis of the archaic law is no longer existent. He emphasized that the fact that a wife’s extra-marital sexual acts, when done with her husband’s consent, are not a criminal offense make Section 497 manifestly arbitrary. He stated the law is premised on a feudal and paternalistic understanding of a marital relationship. He concluded that a statutory provision, which demeans or degrades the status of a woman, falls foul of modern constitutional doctrine and must be struck down.


Justice DY Chandrachud

Justice Chandrachud also concurred with the majority opinion. He found that Section 497 IPC ought to be struck down on the grounds that it violates the Constitution. He held that it violates Articles 14, 15 and 21 of the Constitution.  Accordingly, he also read down Section 198(2) CrPC. He further opined that the Section was rooted in patriarchal notions and beliefs, which resulted in centuries of female subjugation and oppression.


On the question of equality under Article 14, Justice Chandrachud held that the ability to make choices within marriage and on every aspect concerned with it was a facet of the constitutionally protected value of liberty. He said that Section 497 violated the principle of substantive equality by denying equal protection of the rights of both parties to a marriage. He stated that Section 497 IPC is manifestly arbitrary. While the purpose of Section 497 IPC is to preserve the institution of marriage, it does so in a manner that discriminates against women. Relying on the decision in Navtej Johar, he held that sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The application of Section 497 is a blatant violation of these enunciated rights.


He stated Section 497 assumes a conception of marriage, which inherently deprives women of autonomy, in violation of Article 15(1). He held that Section 497’s attempt to preserve the fidelity of a woman is based on the erroneous assumption that a woman contracts away her sexual autonomy upon entering into marriage. He emphasised that any discrimination, which is grounded in and perpetuates stereotypes of gender, violates Article 15(1) of the Constitution. He declared Section 497 as codified patriarchy. He concluded that the gender stereotypes entrenched in Section 497 have no place in constitutional order.


Delving into the question of privacy and the right to life under Article 21, Justice Chandrachud criticized Section 497 IPC for denying women agency, autonomy and dignity. He emphasised that Section 497 is founded on the notion that a woman, upon entering marriage, is her husband’s subject, such that her sexual autonomy and dignity are seeded to the autonomy of the husband.


He dismissed the argument that Section 497 ought to remain a criminal statute on the grounds that the State has a legitimate interest in protecting the sanctity of marriage. Applying the principles of Navtej Johar, he held that there must be a sound and rationale need for a provision to remain in the criminal statute. He stated that Section 497 is based on a notion of marital subordination, which is neither sound nor rationale and, further, is inconsistent with the ethos of the Constitution. He stated that the underlying assumption that the husband is the owner of the wife’s sexuality, perpetuates a deeply entrenched patriarchal order. He concluded that the provision is manifestly arbitrary and that its true intent is to ensure a man’s control over the sexuality of his wife.


Justice Indu Malhotra

Justice Malhotra concurred with Chief Justice Misra’s opinion. She struck down Section 497 as unconstitutional on the grounds that it violates Articles 14, 15 and 21. Justice Malhotra stated that Section 497 is based on archaic norms and, hence, violates women’s fundamental rights to equality, autonomy and dignity. She stated, ‘[the] times when wives were invisible to the law and subordinate to their husbands had long passed.’ She emphasised that laws cannot deny women equal societal status.


She read down Section 198(2) CrPC ‘to the extent of its applicability’ in cases pertaining to Section 497. She read down the part of Section 198(2) CrPC that deals with Section 497 IPC, but not the part that deals with Section 498A IPC


She stated that while adultery is a civil offense, it should not be a criminal offense. She labelled adultery as morally wrong, but held that this is, in itself, not sufficient to make adultery a criminal offense. She held that the State does not have a legitimate interest in criminalising adultery. She concluded that adultery does not negatively impact society to the extent that it ought to remain a criminal offense. Accordingly, she stated that Section 497 must be struck down in its entirety and Section 198(2) CrPC, to the extent that it was applicable to cases of adultery, is unconstitutional.