This is a Writ petition filed under Article 32 of the Constitution of India challenging the validity of Section 497 of IPC that contains adultery as a criminal offence.
In this case section 497 of IPC is challenged on the basis that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The crime of adultery punishes only a third party male offender as against the crime of bigamy. Section 497expressly provides that the wife shall not be punishable even as an a bettor. This Section does not allow the wife to prosecute the husband for adultery. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home. It is contended that Section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify that she is not entitled to be heard at the trial. Section 497 of IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. Section 198 CrPC deals with a person aggrieved. Sub-section(2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and does not consider the wife of the adulterer as an aggrieved person. The definition of an aggrieved person is absolutely arbitrary as it does not appear to be rational. It does not enable the wife to file any criminal prosecution against the husband. The court after hearing the entire matter held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. The court was also of the opinion that the essential ingredients of section 497 do not include a married man, who had sexual inter course with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. It is clear that such provision discriminates against women on grounds of sex only. Section 198, Cr.P.C is also a discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section198 has also to be held constitutionally infirm.

READ JUDGEMENT