January 22, 2025

The Supreme Court has declared that the penal provisions in section 497 of Indian Penal Code and section 198 of Criminal Procedure Code are unconstitutional, thereby decriminalizing adultery in India. Chief Justice Dipak Misra was of the view that “adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage.” With this, an archaic law guided by Victorian morality has been removed from the statute books.

The five-judge bench put adultery squarely in the civil domain, saying that it could at best be ground for divorce and dissolution of marriage but not a criminal offence. The bench was also of the view that the sections treated women unfairly by allowing their husbands to lodge FIRs against their lovers as if they were owned by them. This unequal treatment of women, the bench said, invited the “wrath of the Constitution.”

Justice Chandrachud was more explicit. He said that a woman does not pledge her sexual autonomy to her husband after marriage and depriving her of choice to have consensual sex outside marriage cannot be curbed. She needs to have choice in her private zone and section 497 deprives her of this. Hence it is unconstitutional.

If there is something amiss in a marriage due to unfulfilled sexual desire, the marriage cannot be saved by asking the spouses to lodge a case against their partners’ lovers. If there has been a breach, it means something was amiss between the spouses. It cannot be set right by punishing the so-called “other” man or woman. Hence, the court has done the right thing by decriminalizing adultery.

However, the judges have ruled that if either of the spouses committed suicide as a result of the adulterous relations of the other and if evidence is produced that it was the reason for the suicide, such person could still be punished for abetment of suicide as per existing criminal laws.