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by sayum
28 August 2026 10:07 AM
“This archaic law has long outlived its purpose and does not square with today’s constitutional morality... What is clear, therefore, is that this archaic law has long outlived its purpose.” — In a significant application of constitutional jurisprudence, the Delhi High Court quashed criminal proceedings initiated under Section 497 IPC (adultery), relying on the Supreme Court’s Constitution Bench judgment in Joseph Shine v. Union of India, which had already struck down Section 497 IPC as unconstitutional. Justice Neena Bansal Krishna, allowing the petition under Section 482 CrPC, emphasized that the continuation of prosecution under a provision already held unconstitutional would be manifestly arbitrary and unsustainable in law.
“Presumption of Adultery Cannot Substitute Proof of Sexual Intercourse”
The petitioner had been summoned under Section 497 IPC by an order dated 28.04.2018 passed by the Additional Sessions Judge, in Complaint Case No. 153/1 filed by Respondent No. 2 — the husband of the woman alleged to have been involved in an adulterous relationship with the petitioner.
The complainant alleged that in January 2010, the petitioner and his wife travelled together to Lucknow, stayed overnight in a hotel, and thereby engaged in a sexual relationship constituting adultery. A legal notice was served and a criminal complaint followed.
However, the Magistrate had discharged the petitioner on 09.09.2016, noting that no cogent evidence of sexual intercourse had been produced. This order was later set aside by the ASJ, prompting the present petition seeking quashing of the summoning order.
Court’s Observations: “Adultery Is a Matter of Privacy at Its Pinnacle — Criminal Law Has No Role”
“The theories of punishment whether deterrent or reformative, would not save the situation… adultery in certain situations may not be the cause of an unhappy marriage, but it can be the result thereof.”
Justice Krishna quoted extensively from Joseph Shine, emphasizing that:
“A punishment is unlikely to establish commitment if punishment is meted out to either of them or to the third party.”
The Court reiterated that Section 497 IPC was inherently discriminatory, treating the wife as a "chattel" of the husband, and criminalizing only the man involved in the affair, not the woman — thereby reinforcing patriarchal constructs.
“The Law Has Been Declared Unconstitutional — Pending Proceedings Cannot Survive”
The High Court addressed the crucial issue of whether Joseph Shine applies retrospectively to cases pending at the time of the judgment. Citing the Supreme Court ruling in Maj. Genl. A.S. Gauraya v. S.N. Thakur (1986 AIR 1440) and subsequent High Court rulings from Telangana, Punjab & Haryana, and Jharkhand, the Court held:
“Declaration of law by the Supreme Court applies to all the pending proceedings even with retrospective effect.”
Thus, the proceedings initiated by the complaint filed in April 2010 stood nullified due to the Joseph Shine ruling of 27 September 2018.
Absence of Essential Ingredients: “No Evidence of Intercourse, Only Presumptions — This Does Not Meet the Threshold of Adultery”
Even on merits, the Court found the complaint unsustainable:
“There can be no presumption that they having indulged in a sexual intercourse merely because they stayed overnight in the same room… the essential ingredients of Section 497 IPC were not made out.”
The Judge emphasized that criminal law requires a clear and cogent establishment of the act of intercourse, not just circumstantial inferences or assumptions.
Summoning Set Aside, Complaint Quashed
“The impugned Order of Ld. ASJ dated 28.04.2018 summoning the Petitioner under S. 497 IPC, is hereby set aside and the Complaint of the Respondent No.2 is hereby quashed.”
The petition was allowed, and the petitioner discharged from all proceedings arising out of the complaint.
Date of Decision: 17 April 2025
