Summary
The Constitution Bench unanimously struck down Section 497 IPC, which criminalised adultery, as contrary to constitutional equality, non-discrimination and dignity. The offence treated a married woman as subject to her husband’s control and rested on gender stereotypes, with criminality dependent on his consent or connivance. Section 198 CrPC was invalidated insofar as it enabled prosecution for that offence. The separate concurrences examined privacy, sexual autonomy and the limits of criminal punishment. Adultery could remain a civil matrimonial wrong and a ground for divorce; the judgment did not extend criminal liability to women.
Issues
- Whether Section 497 IPC violated Articles 14, 15 and 21 of the Constitution.
- Whether the claimed protection of women or the sanctity of marriage justified its discriminatory structure.
- Whether adultery warranted criminal punishment rather than civil matrimonial consequences.
- What effect invalidation had on Section 198 CrPC and the earlier decisions upholding the adultery provisions.
Provisions considered
- Section 497, Indian Penal Code, 1860The entire adultery offence was struck down. Its restrictions to intercourse with another man’s wife, the husband’s consent or connivance exception and the exemption of the woman from punishment reflected the discriminatory structure examined by the Court. (¶¶ Misra CJI, 9, 22–23, 41, 55–58, Nariman J., 21–28, Chandrachud J., 67, Malhotra J., 18(i))
- Section 198, insofar as applicable to Section 497 IPC, Code of Criminal Procedure, 1973The procedural provision limiting prosecution to the aggrieved husband or a person acting on his behalf fell with the adultery offence. The invalidation was confined to its application to adultery, rather than the entirety of the machinery for other marriage offences. (¶¶ Misra CJI, 10–11, 56, Nariman J., 12, 25, 28, Chandrachud J., 5, 37, Malhotra J., 18(ii))
Held
- Unanimous disposition: Section 497 IPC was unconstitutional, and the petition was allowed. Section 198 CrPC was unconstitutional to the extent applicable to prosecution for adultery under Section 497. The Court struck down the offence rather than expanding it to punish women or creating a gender-neutral offence. (¶¶ Misra CJI, 56–58, Nariman J., 28, Chandrachud J., 10–11, 67, Malhotra J., 18)
- The offence’s dependence on the husband’s consent or connivance treated his wife as a possession and subordinated her agency. Its failure to cover a married man’s relations with an unmarried woman, and its unequal recognition of aggrieved spouses, contradicted the asserted protection of marriage and rendered it arbitrary and discriminatory. (¶¶ Misra CJI, 22–23, Nariman J., 21–25, Chandrachud J., 30–38, Malhotra J., 11–12)
- The premise that the man was invariably the seducer and the woman a passive victim perpetuated gender stereotypes. The purported protective exemption could not justify a statutory scheme that subordinated women and denied equal citizenship; Article 15(3) did not save that scheme. (¶¶ Misra CJI, 21–23, 41, Chandrachud J., 40–48, Malhotra J., 13–14)
- Misra CJI, for himself and Khanwilkar J., held that the provision violated women’s dignity and that criminalising adultery intruded impermissibly into matrimonial privacy. Adultery could remain a civil wrong, including a ground for dissolution of marriage; criminal punishment could not secure commitment within a failing relationship. (¶ Misra CJI, 41–42, 49, 53–55)
- Nariman J., concurring, held the provision manifestly arbitrary, sex-discriminatory and incompatible with dignity. The historical premises of its design no longer supplied a constitutional rationale; the Court had a duty to invalidate unconstitutional legislation without awaiting legislative reform. (¶ Nariman J., 23–28)
- Chandrachud J., concurring, applied substantive equality and held that marriage does not extinguish a woman’s identity, privacy or sexual autonomy. Section 497 enforced a patriarchal conception of marriage, violating Articles 14, 15 and 21. He expressly preserved the legitimacy of criminal laws addressing abuse, domestic violence and dowry-related wrongdoing. (¶ Chandrachud J., 35–39, 46–48, 55–62, 67)
- Malhotra J., concurring, rejected any absolute claim to constitutional protection for extramarital sexual relations, but held that Section 497 failed the requirements for a justified privacy restriction. Its anomalies and discrimination violated Articles 14, 15 and 21; a sufficient civil remedy and respect for individual autonomy militated against criminal punishment. (¶ Malhotra J., 11–15, 16–18)
- The earlier decisions in Sowmithri Vishnu and V. Revathi upholding the adultery scheme were overruled. Yusuf Abdul Aziz was explained as addressing the narrower challenge to the exemption of women from abetment liability, rather than deciding the full range of constitutional objections considered here. (¶¶ Misra CJI, 7–8, 57, Nariman J., 16, 27–28, Chandrachud J., 6–13, 67)
- Decriminalisation of adultery did not invalidate the distinct protections against cruelty, domestic violence or abetment of suicide. Misra CJI’s discussion required proof of the elements of the separate offence; an extramarital relationship alone did not establish abetment. (¶¶ Misra CJI, 49–52, Chandrachud J., 60–61)
Result
Writ petition allowed. Section 497 IPC struck down; Section 198 CrPC invalid insofar as applicable to that adultery offence. Civil matrimonial consequences remained available.