IPC Section 497: Adultery, Supreme Court Judgment and Current Law in India
Section 497 of the Indian Penal Code, 1860 formerly criminalised a particular form of adultery. The Supreme Court declared it unconstitutional in 2018. Adultery is not a standalone criminal offence under the Bharatiya Nyaya Sanhita, 2023, but conduct involving voluntary sexual intercourse outside marriage can remain relevant to divorce under applicable matrimonial law.
What did Section 497 IPC provide?
The former provision dealt with a man having sexual intercourse with a woman whom he knew or had reason to believe was another man's wife, without that husband's consent or connivance, where the intercourse did not amount to rape. The provision did not make the married woman punishable as an abettor.
Historical statutory text of Section 497 IPC
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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
Reproduced for historical reference only. This provision was struck down in 2018.
Joseph Shine v. Union of India: Supreme Court ruling
On 27 September 2018, a five-judge Constitution Bench of the Supreme Court in Joseph Shine v. Union of India, W.P. (Criminal) No. 194 of 2017, held Section 497 IPC unconstitutional. The Court also invalidated the connected procedural restriction under Section 198(2) of the Code of Criminal Procedure, 1973 insofar as it concerned adultery.
The judgments emphasised equality, dignity, privacy and individual autonomy under Articles 14, 15 and 21 of the Constitution. The former offence treated a married woman unequally and made the husband's consent central to criminal liability.
Read the Supreme Court judgment record (National Digital Library of India).
Is adultery a criminal offence under BNS 2023?
No. The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), which generally came into force on 1 July 2024, does not contain a standalone offence equivalent to the former IPC Section 497. There is no replacement BNS section prescribing imprisonment simply for consensual adultery between adults.
See the official Bharatiya Nyaya Sanhita, 2023 and the NCRB BNS section index.
Can adultery still be a ground for divorce?
Yes. Decriminalisation does not remove matrimonial remedies. For marriages governed by the Hindu Marriage Act, 1955, Section 13(1)(i) permits either spouse to seek divorce if the other spouse, after solemnisation of the marriage, has had voluntary sexual intercourse with any person other than their spouse.
The legal consequences depend on the personal or civil marriage law applicable to the parties, the pleaded grounds, and evidence. A divorce decree is not automatic merely because an allegation has been made.
Official reference: Hindu Marriage Act, 1955, Section 13.
Criminal offence versus matrimonial consequence
| Issue | Current position |
|---|---|
| IPC Section 497 | Declared unconstitutional on 27 September 2018. |
| Former penalty | Up to five years' imprisonment, fine, or both; no longer enforceable under Section 497. |
| BNS equivalent | No standalone adultery offence. |
| Divorce | Extramarital voluntary sexual intercourse can be a statutory ground under applicable matrimonial law, including Hindu Marriage Act Section 13(1)(i). |
| Other offences | Separate criminal provisions may apply where distinct elements, such as absence of consent, are established. |
Does the ruling apply to armed forces discipline?
The Supreme Court subsequently clarified that the 2018 judgment does not prevent action under distinct statutory service and disciplinary provisions applicable to members of the armed forces. Such proceedings should not be confused with prosecution under the invalidated IPC Section 497.
Read the Supreme Court clarification judgment.
Frequently asked questions
Can a spouse file an FIR solely under Section 497 IPC?
No. Section 497 was declared unconstitutional and cannot be used as a valid basis for a new criminal prosecution.
Is there a punishment for adultery under BNS?
There is no standalone BNS punishment for consensual adultery as such. Liability for any other offence requires proof of that separate offence.
Can a husband or wife seek divorce on grounds of adultery?
Yes, where the applicable matrimonial statute provides such a ground and the required facts are established. For Hindu marriages, see Section 13(1)(i) of the Hindu Marriage Act.
Did the Supreme Court legalise every form of extramarital sexual conduct?
No. The decision decriminalised the particular adultery offence; it did not remove other criminal laws governing non-consensual acts or other independently punishable conduct.
Official legal sources
- Joseph Shine v. Union of India, Supreme Court, 2018
- Bharatiya Nyaya Sanhita, 2023 (India Code)
- Hindu Marriage Act, 1955 (India Code)
This article provides general legal information. The applicable law and remedies depend on the facts and the parties' matrimonial regime.