Quick answer
Yes. Until 2018, Section 497 of the Indian Penal Code (old law) made adultery a crime, but only the man could be punished, and only if the woman's husband had not consented. In Joseph Shine v. Union of India (27 September 2018), a five-judge Constitution Bench of the Supreme Court unanimously struck down Section 497 IPC and, so far as it applied to adultery, Section 198 of the Code of Criminal Procedure (old law), the procedural rule under which only the husband could complain. Adultery is no longer a crime, but it can still be a ground for divorce and other civil consequences.
The case
Joseph Shine v. Union of India, AIR 2018 SC 4898, (2019) 3 SCC 39, Supreme Court of India, decided 27 September 2018. Bench: Dipak Misra, CJI, A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, JJ. Held: Section 497 IPC is unconstitutional because it violates Articles 14, 15 and 21. Section 198 CrPC, which allowed only the husband to be treated as the aggrieved person, fell with it to the extent it applied to adultery. The earlier decisions in Sowmithri Vishnu and V. Revathi, which had upheld the provision, were overruled.
What old Section 497 said
- 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, committed adultery.
- Punishment: imprisonment up to five years, or fine, or both.
- The wife could not be punished, not even as an abettor (a person who helps or encourages an offence).
- If the husband consented, there was no offence at all.
Why the Court struck it down
- Article 14 (equality): the provision was manifestly arbitrary (unreasonable without a sound basis). It made the husband's consent decide whether a crime existed.
- Article 15 (no sex discrimination): it rested on the stereotype that the wife is a passive victim and the husband's property.
- Article 21 (life and personal liberty): it denied women dignity, privacy and sexual autonomy (the freedom to make personal decisions about one's own body and relationships).
- Section 198 CrPC: when the substantive offence goes, the procedure for prosecuting it must go too, so Section 198 fell so far as it related to adultery. It continued for the other offences relating to marriage.
Crime versus civil wrong
| Point | Before 27 September 2018 | After Joseph Shine |
|---|---|---|
| Criminal liability | Man punishable under Section 497 IPC | No offence of adultery |
| Who could complain | Only the husband (Section 198 CrPC) | No criminal complaint possible |
| Effect in family law | Ground for divorce under personal laws | Still a ground for divorce and other civil consequences |
The majority opinion expressly said that adultery can be a ground for civil wrongs, including dissolution of marriage, but the question was whether it should be a crime.
Farhan learns that his wife Neha is in a relationship with Aadil. Farhan cannot file a criminal complaint against Aadil for adultery, because the offence no longer exists. He may, however, seek divorce on the ground of adultery under the marriage law that applies to them.
Current law
The B.N.S., which replaced the IPC from 1 July 2024, contains no offence of adultery. Its offences relating to marriage include Section 84 B.N.S. (enticing, taking away or detaining a married woman with criminal intent, earlier Section 498 IPC). Section 219 B.N.S.S. (earlier Section 198 CrPC) now lists offences under Sections 81 to 84 B.N.S. and says that, for Section 84, only the husband is deemed to be aggrieved. For a fuller case brief, see Joseph Shine v. Union of India.
Exam point
Joseph Shine (2018) decriminalised adultery under Articles 14, 15 and 21 because Section 497 IPC treated the wife as the husband's property; adultery remains a civil ground for divorce, not a crime.
