A five-judge Constitution Bench led by Chief Justice of India Dipak Misra, also comprising Justices R. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, declared Section 497 from the penal code as unconstitutional, while delivering its verdict on a petition filed by Kerala-based Joseph Shine to drop the law that makes adultery a criminal offence.

“Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.” said Bench

The Bench wrote four separate judgments with CJ Misra authoring on behalf of Justice Khanwilkar too.

Section 497 of the IPC, a Victorian provision, mandates that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished.”

“Husband is not the master of woman,” CJ Misra declared and added: “any law which affects individual dignity, equity of women in a civilised society invites the wrath of the Constitution.”

Terming that adultery as a criminal offence “is absolutely, manifestly arbitrary,” Justice Misra said it affects the subordination of woman and thus affects her right to life.

Justice Nariman observed the ancient notions of man as seducer and woman as victim is long past.

Justice Chandrachud said that the adultery law deprives married women the agency of consent and the Section 497 offends sexual freedom of women.

Full Judgment here:

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