New Delhi: The Supreme Court on Thursday said that adultery is not a crime even though, "without a shadow of doubt", it can be a ground for divorce. The verdict scraps the 158-year law that punished a man for an affair but not the woman, treating her as "property".

"A man having sexual intercourse with a married woman is not a crime," said Chief Justice Dipak Misra, calling the Victorian adultery law arbitrary.

Observing that most countries have abolished the law, three judges in the five-member Constitution bench held that making adultery a crime is retrograde and would mean "punishing unhappy people".

"We declare Sec 497 IPC (Indian Penal Code) and Sec 198 of CrPC (Code of Criminal Procedure) dealing with prosecution of offences against marriage as unconstitutional," said the CJI and Justice Khanwilkar.

While reading his part, CJI Misra said:

– Any provision treating woman with inequality is not constitutional (CJI Misra on behalf of himself and Justice AM Khawilkar)

– The CJI has relied heavily on the triple talaq judgment of Justice Rohinton Nariman

– Section 497 is manifestly arbitrary, offends dignity of women

– Section 497 violates Article 14 of the Constitution 

– Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence

– In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy

– Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage

– Section 497 IPC and section 498 CrPC are unconstitutional (CJI Dipak Misra on behalf of himself and Justice Khanwilkar)
Justice Nariman termed section 497 of the IPC as an archaic law and concurred with the CJI and Justice Khanwilkar saying that the section is violative of the right to equality and right to equal opportunity to women.

Reacting to the landmark judgment, the petitioner's lawyer said, the judgment is monumental and the people of India should praise the verdict.


The 150-year-old adultery law punished only a man and not a married woman for an affair by treating her as a victim and not as an abettor of the offence. The Centre initially had defended the Victorian law saying adultery must remain a crime so that the sanctity of marriage can be protected. A petition was later filed for the law to be scrapped as it does not treat men and women equally.


The constitution bench, headed by CJI Misra, had reserved its verdict in August, after hearing the case for six long days.   

Earlier, the apex court upheld the law against adultery thrice. Last year, the top court said the laws on adultery treat a woman as her husband's subordinate and the time has come for the society to realise that a woman is as equal to a man in every respect.

The Centre, on its part, said that adultery is a public wrong which causes mental and physical injury to the spouse, children and the family.

"It is an action willingly and knowingly done that would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, (which) form the backbone of the Indian society, has been classified and defined by the Indian state as a criminal offence in exercise of its constitutional powers," it said.

The top court had questioned the government on how the law preserved the "sanctity" of marriage when an extra-marital affair becomes non-punishable if the woman's husband stands by her. On its part, the court had said: “Dichotomy is manifest (in section 497)" as "husband can only have control over his emotion and cannot ask wife to do this or that.”

Section 497 of the IPC clearly says: “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 to the offence of rape, is guilty of the offence of adultery.”