Yes is the short answer; criminalising adultery violates women’s human rights. But the longer answer is far more important. It shows how laws presented as protection can sometimes become tools of control. It also explains how that confusion continued in India for nearly 158 years. To understand it properly, we need to look beyond the surface. We need to see how the law was framed, who it truly served, and how its effects lasted over time. Let’s examine it step by step.
Section 497 of the Indian Penal Code was introduced in 1860 during British rule. It made adultery a criminal offence. It said that if a man had relations with a married woman, knowing she was another man’s wife, and did so without the husband’s consent, he could be punished. The punishment could be: up to five years in jail, a fine, or both. The law did not apply if the act amounted to rape. But the most important part was this: the wife could not be punished, even as someone who helped commit the act. At first, this may sound like protection. But it was not.
The law did not treat the woman as an equal person, making her own choices. Instead, it treated her as someone under her husband’s control. The offence was framed less as a violation of marriage between two partners, and more as an injury to the husband’s rights.
Read that carefully. The law did not treat adultery as a wrong between two spouses who had broken marital trust. Instead, it treated adultery as a wrong committed by an outside man against the husband. That distinction matters. The wife, the person directly involved, was made legally invisible.
This law focused less on mutual responsibility in marriage and more on the husband’s legal claim over the relationship.
Section 198(2) of the Code of Criminal Procedure strengthened this position even further. It stated that, in adultery cases, no person other than the husband of the woman involved would be treated as the aggrieved party. That meant:
The law recognised only one complainant, the husband. That reveals the real issue. This framework was not centred on protecting women. It was centred on protecting a husband’s legal control within marriage.
The Supreme Court of India had several chances to strike down Section 497 before 2018. It did not. Instead, the law was upheld more than once. And each time, the reasoning reflected the social assumptions of that era.
In effect, the law survived not because it was modern or fair, but because older views about gender and marriage continued to shape legal thinking. That is why these earlier decisions matter. They show that constitutional change often does not happen all at once. Sometimes, outdated laws remain in place until the court is finally willing to question the assumptions beneath them.
In Yusuf Abdul Aziz v. State of Bombay, the Supreme Court of India upheld Section 497. The Court relied on Article 15(3) of the Constitution of India, which allows the State to make special provisions for women. The reasoning was simple: since women could not be prosecuted under the law, the provision was seen as protection rather than discrimination. At that time, the exemption was viewed as a benefit to women.
At first glance, that may seem acceptable. But the deeper problem was different. The law did not treat women as equal individuals making their own choices. Instead, it treated them as passive participants, while the legal wrong was framed as one man offending another man. So what was described as “protection” also carried a different reality:
This is an example of how paternalistic laws often appear benevolent while limiting equality.
In Sowmithri Vishnu v. Union of India, the Supreme Court of India once again upheld Section 497. This time, the Court stated that the provision was meant to protect the sanctity of marriage. That was the stated purpose. But the structure of the law remained clearly unequal. The provision punished only certain men. It did not treat husbands and wives equally. It did not recognise mutual responsibility within marriage.
Even though the gender imbalance was clear, the Court did not strike the law down. This matters because courts may sometimes accept a stated goal, such as protecting marriage, without fully examining whether the method used is fair, equal, or in line with constitutional values. A good objective alone is not enough.
The law must also use just and lawful means. It is important because it shows how courts can sometimes accept stated objectives, such as protecting marriage, without fully questioning whether the method used is fair, equal, or consistent with constitutional values.
In V. Revathi v. Union of India, the Supreme Court of India again upheld the adultery law. The Court said the law created a fair balance because a wife could not prosecute her husband. The other man’s spouse also could not prosecute him. Based on this, the Court held that there was no discrimination. But the weakness in that reasoning is clear. The husband of the married woman could still initiate prosecution against the outside man. The wife of a husband involved in adultery had no equal or corresponding right. So the rights available were not truly reciprocal. What was described as balance rested on overlooking a central inequality: one spouse had legal standing, while the other did not. This illustrates how formal symmetry can sometimes hide real imbalance.
What connected all three decisions was an assumption the Court did not state openly, but one that shaped the law’s logic. The assumption was this:
That is why the offence was built around harm to the husband, not equality between spouses. Years later, in Joseph Shine v. Union of India, the Supreme Court of India directly addressed this flaw. The Court recognised that Section 497 treated a married woman as if she were the property of her husband. This marked a major shift. The law moved away from ownership-based thinking and toward constitutional values such as:
In Joseph Shine v. Union of India, the Supreme Court of India struck down Section 497 of the Indian Penal Code as unconstitutional. The Court held that the adultery law violated key constitutional rights, including:
This was a landmark moment in Indian constitutional law. The petition was filed by Joseph Shine under Article 32 of the Constitution of India. He approached the Court after a close friend died by suicide following a false rape accusation. That incident led him to question how certain laws could be used to control or misuse matters of sexuality and personal relationships.
What began as a personal concern soon grew into a major constitutional challenge. A five-judge Constitution Bench heard the case in August 2018. On 27 September 2018, the Court delivered a unanimous verdict. There were four separate concurring opinions, but all agreed on one point: Section 497 could not survive under the Constitution.
The Court found the law to be manifestly arbitrary. Its inequality was obvious from the way it operated. Under Section 497, if a husband consented to or accepted the relationship, no offence was committed. If he did not consent, it became a crime. That exposed the real structure of the law. The deciding factor was not the woman’s choice. It was not mutual respect in marriage. It was the husband’s permission. This treated the woman as if she were property, someone whose autonomy depended on the will of another.
An intimate relationship with a married woman became criminal only when the husband objected, and lawful when he approved. That shows the offence was not truly about protecting the sanctity of marriage. It was built around the husband’s control and claimed ownership rights.
The law denied women equal legal identity and treated them as passive participants.
The gender-specific design of the offence was not true protection for women. It was a denial of their equal legal identity. Instead of recognising women as independent individuals, the law treated them as passive subjects in a dispute controlled by others. It did not create a right for women. It removed their status as equal participants in matters affecting their own lives. They were neither given equal responsibility nor equal agency. Their voice, choice, and autonomy were pushed aside.
Justice Dhananjaya Y. Chandrachud strongly criticised the adultery law. He said it reduced women to “chattel” and reinforced the patriarchal idea that women are the property of men.
According to him, such a law was against core constitutional values, including:
He connected this view to earlier landmark cases, including K.S. Puttaswamy v. Union of India and Navtej Singh Johar v. Union of India. Based on these judgments, Justice Dhananjaya Y. Chandrachud made it clear that sexual autonomy is part of the right to life and personal liberty under Article 21 of the Constitution of India.
In simple terms, adults have the right to make private, consensual choices about intimate relationships. The State has no proper role in using criminal law to control such relationships. Chief Justice Dipak Misra also stated the position clearly. Wives are not the property of their husbands, and husbands are not their masters. He held that the adultery law had deprived women of three basic constitutional values:
That statement marked a decisive break from older legal thinking based on control and hierarchy.
The Court also overruled earlier judgments in:
The Court also gave an important clarification. Decriminalising adultery does not mean approving it morally or removing all legal consequences. Adultery can still matter in civil law, including as a ground for divorce or other matrimonial remedies. So while the State can no longer punish adultery as a crime, a spouse may still rely on it in family court proceedings.
The Supreme Court of India did not reach this conclusion in isolation. For many years, international human rights law had already been moving in the same direction. Across different countries, courts and legal bodies increasingly recognised that criminalising consensual adult relationships often conflicts with basic rights such as:
By the time India decided the issue, a wider global consensus had already formed. This made the gap between India’s older legal position and changing international standards increasingly clear. The 2018 judgment, therefore, did not create a new principle from nothing. It brought Indian law in line with values that had already gained recognition around the world. It brought Indian constitutional law closer to values that had long been recognised elsewhere.
In some parts of the world, adultery laws remain in force, including areas of South Asia, Southeast Asia, the Middle East, and sub-Saharan Africa. But the Office of the United Nations High Commissioner for Human Rights (OHCHR) has taken a clear position on this issue. Its view is that even where adultery laws appear to apply equally to men and women, real social conditions often make the impact unequal. This is because many societies still face:
As a result, the continued criminalisation of adultery often exposes women to greater harm. According to the OHCHR, these harms can include violations of:
So the concern is not only the wording of the law. It is how the law functions in societies where inequality already exists. That is not a hedged position. It is a clear one.
The Malimath Committee on Reforms of the Criminal Justice System (2003) suggested that Section 497 should be amended, not abolished. Its proposal was to make adultery a gender-neutral offence by punishing any person who had sexual relations with the spouse of another. This would have removed the earlier bias that targeted only certain men and treated women unequally. That part was a meaningful correction.
But it solved only half the problem. The real issue was not just whether the law treated men and women equally. The deeper question was whether the State should criminalise consensual intimate relationships between adults at all. In Joseph Shine v. Union of India, the Supreme Court of India answered that question clearly: No. That conclusion was stronger and more principled. Even a gender-neutral adultery law would still carry the same structural concern:
A law can be equal in wording and still unjust in substance. Making a discriminatory law neutral does not automatically make it fair.
The Union of India argued before the Supreme Court of India that weakening the adultery law would harm the sanctity of marriage. The idea was simple: marriage is an important social institution, and criminal law helps protect social values. Therefore, decriminalising adultery would send the wrong message.
But this argument had a deeper flaw. The law did not truly protect marriage as a bond of mutual respect and consent. It protected a particular old model of marriage, one where a woman’s fidelity was treated as an obligation owed to her husband, enforced by the State through criminal punishment. That is not protection. It is controlled.
The argument under Article 15(3) also failed. That provision allows special measures for women, not laws that reduce their equality or autonomy. A law treating women as subordinates could not be justified as a protective measure.
There was also a clear inconsistency. If the aim was to protect marriage, why did the law not apply when a married man had relations with an unmarried woman? It did not. This showed that the law was selective. It focused on controlling the wife’s conduct, not preserving marriage equally.
Since 27 September 2018, India’s legal position is clear: adultery is not a criminal offence. It may remain a ground for civil divorce under applicable personal laws. The Armed Forces operate under separate statutory rules. In January 2023, the Supreme Court of India clarified that decriminalisation of adultery did not automatically invalidate military regulations. That remains a narrower and developing issue. For civilian law, however, the matter is settled. Two practical gaps still deserve attention.
Removing Section 497 ended criminal prosecution. It did not automatically remove social consequences. In many places, women suspected of adultery may still face:
Law can change quickly. Social attitudes often change slowly.
The judgment addressed adultery, but not every issue related to autonomy within marriage. One major unresolved area is marital rape, which remains outside full criminal recognition in India under the current legal framework, now governed by the Bharatiya Nyaya Sanhita. The deeper concern is similar: Both the old adultery law and the spousal exception reflect the idea that a woman’s sexual autonomy within marriage is not fully independent. That constitutional debate is still ongoing.
The criminalisation of adultery was always deeply problematic for women’s rights, both in India and in many places where such laws existed. The problem was not only that these laws were gender-biased, though that was clear. The deeper issue was the assumption behind them: that a woman’s sexuality was something tied to marriage, subject to a husband’s control, and protected by the State through criminal punishment. That framework was inconsistent with dignity and equality. The remaining question, in India and elsewhere, is no longer whether such laws are just. That debate has largely been answered. The real question is when remaining jurisdictions will choose to reform them.
