What Was IPC Section 497?
IPC Section 497 originally punished a man who had sexual intercourse with a woman he knew or had reason to believe was another man's wife, without that husband's consent or connivance, treating such intercourse (if it did not amount to rape) as adultery. Crucially, the woman involved was expressly exempted from prosecution, even as an abettor — the underlying legal assumption being that a married woman was, in effect, treated as belonging to her husband, whose consent (or lack of it) determined whether a criminal wrong had occurred. A married woman also could not herself bring a complaint if her husband had intercourse with an unmarried woman, since the provision was framed entirely around a husband's rights over his wife's fidelity.
Section 497 sat within Chapter XX of the IPC ("Of Offences Relating to Marriage"). Introduced in 1860 under colonial-era social norms, the provision came under sustained constitutional challenge over the decades for its inherent gender bias, culminating in its unanimous invalidation by the Supreme Court in 2018.
Legal Provision — Original Text of Section 497 IPC
The Joseph Shine v. Union of India Judgment (2018)
In Joseph Shine v. Union of India, a five-judge Constitution Bench of the Supreme Court (Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra) unanimously struck down Section 497 IPC, along with Section 198(2) of the CrPC (which governed how complaints under Section 497 could be filed), to the extent it related to Section 497.
The Court found the provision manifestly arbitrary and violative of Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of sex), and 21 (right to life, dignity, and personal liberty) of the Constitution. It held that Section 497 was rooted in patriarchal assumptions that treated a married woman as the property of her husband, incapable of exercising her own sexual autonomy — the provision punished only the man, allowed the husband's consent to effectively "legalise" the act, and denied the woman any agency or individuality, whether as a potential offender or as a complainant in her own right when her husband was the one committing adultery.
| Case Name | Joseph Shine v. Union of India |
|---|---|
| Citation | AIR 2018 SC 4898; (2019) 3 SCC 39 |
| Bench | Five-judge Constitution Bench (Misra C.J., Nariman, Khanwilkar, Chandrachud, and Malhotra JJ.) |
| Date Decided | 27 September 2018 |
| Held | Section 497 IPC and the corresponding part of Section 198(2) CrPC declared unconstitutional and void |
| Subsequent Clarification | On 31 January 2023, the Supreme Court clarified that this decriminalisation does not affect the separate disciplinary framework applicable to members of the Armed Forces |
What Applies Today Instead of Section 497?
Since Section 497 has been struck down, adultery carries no criminal liability whatsoever in India today — neither for the man nor the woman involved, regardless of who initiated it or whether the other spouse consented. No FIR can be validly registered, and no criminal prosecution can be maintained, on the basis of an allegation of adultery alone.
However, the Supreme Court expressly clarified that adultery remains a valid ground for divorce under applicable civil and personal law — a spouse can still seek dissolution of marriage on this basis in matrimonial proceedings. The Court also noted that if an act of adultery leads the aggrieved spouse to commit suicide, the adulterous partner could potentially be prosecuted for abetment of suicide under Section 306 IPC, based on the specific facts establishing such abetment — this is a distinct legal question from adultery itself and would require separate proof of the ingredients of that offence.
Practical Guidance
If You Suspect Your Spouse of Adultery
- No criminal complaint can be filed for adultery itself, since it is no longer an offence under Indian law.
- Adultery remains a valid and recognised ground for seeking divorce under the applicable personal law or the Special Marriage Act, and can also be relevant to related matrimonial proceedings such as maintenance.
- Consult a family law practitioner to understand the appropriate civil remedies available, including divorce and any related financial claims.
If You Are Facing Allegations
- Since adultery is no longer a crime, any FIR or criminal complaint filed purely on this basis would not be legally sustainable.
- Be aware that such allegations may still be relevant in ongoing or contemplated divorce or matrimonial proceedings, where they can be raised as a ground for the other party.
- If facing an unrelated but connected charge, such as abetment of suicide, engage a criminal lawyer immediately given the distinct and serious nature of that separate offence.
Important / Landmark Cases
Joseph Shine v. Union of India (2018)
A five-judge Constitution Bench unanimously struck down Section 497 IPC as unconstitutional, holding that it was manifestly arbitrary, discriminated on the basis of sex, and violated the dignity and autonomy of women by treating them as passive subjects lacking sexual agency.
Prior Precedents: Sowmithri Vishnu (1985) and V. Revathi (1988)
Before Joseph Shine, the Supreme Court had earlier upheld the constitutional validity of Section 497 in these cases, reasoning at the time that the provision's asymmetric treatment of men and women did not amount to unconstitutional discrimination. These earlier rulings were expressly overruled by the Constitution Bench in Joseph Shine.