In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
Section 497 IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Section 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sections 497 and 498 IPC.
Advocate Jayna Kothari, Executive Director of CLPR, represented the intervenor Vimochana. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution.
Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside of marriage. The same restrictions, however, did not apply in case of the husband. Section 497 violates right to privacy as well as liberty of women by discriminating against married women and perpetrating gender stereotypes.
On 27.07.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.