Adultery means voluntary sexual intercourse between a married person and a person who is not their spouse.
Sec. 497 of IPC states that if a man has sexual intercourse with a married woman without her husband’s consent, he is punishable by law. After a complaint by husband, the man could be imprisoned for five years or more and even pay a fine. The wife on the other hand could not file a case against another women for having sexual relationship with her husband. The law was gender biased.
Five judge benches of Supreme Court headed by Chief Justice Dipak Misra on 27th Sep 2018 struck down 160 years old law, the section 497 of IPC calling it unconstitutional. Now Adultery is no crime in India and law is gender neutral. Similarly, adultery is no crime in Japan, China, Australia etc.
The court however maintained that adultery can be considered ground for divorce.
Earlier on 24th Aug 2017, in Justice K.S. Puttaswamy (Reld) vs. Union of India Case, 9 judge bench of Supreme Court headed by Chief Justice J.S. Khehar gave the ruling that Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Art. 21 and as a part of freedom guaranteed by Part III of the Constitution. Right to Privacy is a Fundamental Right (mostly under Art. 21 and additionally under Part III rights.
On 6th Sep. 2018 in Navtej Singh Johar vs. Union of India Case five Judge Constitution Bench of Supreme Court headed by Chief Justice Deepak Misra termed the part of Sec 377 of IPC which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary but Sec 377 remains in force relating to sex with minors, non-consensual sexual acts and bestiality.
These ruling of Supreme Court also paved the way to decriminalise adultery in our country.
Supreme court in response to an application by the Union government seeking clarification on the decriminalization of adultery on 29th September 2022 ruled that armed forces can take disciplinary action against personnel over adultery. The decriminalization of adultery cannot stand in the way of the army taking action against officers for misconduct.
Supreme court ruled that although adultery was decriminalized on 27th Sep 2018 by scraping section 497 of the Indian Penal Code. After its judgment, adultery does not carry criminality but remains immoral. In uniformed service, such conduct can shake up discipline and family life.
