Decriminalisation of Adultery

The petition filed by Joseph Shine challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the Criminal Procedure Code, 1973. Adultery by a man with the wife of another man was criminalised under Section 497 and women were exempted from prosecution. No adultery charge lied when a married man engaged in sexual intercourse with an unmarried woman. Further, under Section 198(2) of CrPC, the complaint of adultery could only be brought by the aggrieved husband of the adulterous married woman. The court struck down Section 497 IPC and read down Section 198(2) CrPC thus decriminalizing adultery for breaching Articles 14, 15, and 21. The provisions were archaic and paternalistic and infringed on a woman’s constitutional rights to equality, liberty, autonomy, privacy, and dignity as it treats the wife as a ‘chattel’ and puts a criminal price on the sexual purity of the wife. Any discrimination that perpetuates gender stereotypes violates Article 15(1) of the Constitution and ‘[the] times when wives were invisible to the law and subordinate to their husbands had long passed’. The Court also held that the State could not criminalize actions occurring within the private realm of marriage and it is sufficient that adultery is a civil offense and a ground for divorce.  It overruled its previous rulings which had upheld the constitutionality of the adultery provision.