FROM CRIME TO CONSCIENCE: THE DECRIMINALISATION OF ADULTERY IN INDIA AND ITS CONSEQUENCES FOR FAMILY LAW

On 27 September 2018, a five-judge Bench of the Supreme Court of India struck down Section 497 of the Indian Penal Code, 1860 (IPC), together with Section 198 of the Code of Criminal Procedure, 1973 (CrPC) in so far as it related to that offence, in Joseph Shine v. Union of India. The judgment ended an offence that punished only the man who had intercourse with another man’s wife, that spared the wife entirely, and that disappeared if the husband consented. This paper traces the history of the offence, examines the decisions that upheld it for more than sixty years, analyses the reasoning that finally brought it down, and tests the arguments for its retention, including the 2023 recommendation of a Parliamentary Standing Committee that a gender-neutral offence be restored. It then turns to the question that matters most to a student of family law: what is left of adultery once the criminal sanction is gone? The paper argues that decriminalisation was constitutionally sound, that adultery keeps its full significance as a ground for divorce and as a fact relevant to maintenance, custody and proof, and that the unfinished work lies less in the penal code than in matrimonial law, which still leans on fault and offers too little economic protection to a spouse whose marriage has failed.