Safiya Malik

The High Court of Delhi Single Bench of Justice Neena Bansal Krishna has quashed a criminal complaint filed under Section 497 of the Indian Penal Code (IPC), holding that the provision criminalizing adultery is no longer legally tenable following its declaration as unconstitutional by the Supreme Court. The court allowed the petition challenging the order summoning the accused and directed that all related proceedings stand quashed. No prima facie case was found to exist against the accused under the repealed provision.

The matter arose from a criminal complaint filed by an individual alleging that his spouse was engaged in an extra-marital relationship. The complainant and his spouse had been married since February 1998 and had two children. In 2009, the complainant suspected infidelity after observing his spouse's frequent late-night outings and call records with another individual. Allegedly, the spouse travelled with the individual to Lucknow in January 2010 and stayed together overnight at Hotel Piccadilly, which the complainant claimed was evidence of adultery.

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Following this incident, the complainant served a legal notice to his spouse and subsequently filed a complaint under Section 497 IPC. The Metropolitan Magistrate, after evaluating the pre-summoning evidence, discharged the accused in September 2016. The complainant challenged this order before the Additional Sessions Judge (ASJ), who reversed the discharge order on April 28, 2018, and summoned the accused to face trial under Section 497 IPC.

In response, the accused filed a petition under Section 482 of the Criminal Procedure Code seeking quashing of the ASJ’s order. It was argued that the reversal of discharge was not sustainable as it was based solely on uncorroborated oral testimony, without substantive documentary proof establishing sexual intercourse, a crucial element of the alleged offence. The petition also contended that the appropriate recourse following discharge should have been an appeal rather than a revision petition.

The complainant, on the other hand, maintained that there was sufficient evidence indicating an adulterous relationship. He also alleged that, upon confrontation, the spouse had filed a domestic violence case which was later withdrawn. The complainant further submitted that the accused and his spouse had continued to cohabit despite the legal notice, thereby substantiating the charge of adultery.

The defense stated the Supreme Court’s ruling in Joseph Shine v. Union of India (AIR 2018 SC 4898), which declared Section 497 IPC unconstitutional, stating that it violated Articles 14, 15, and 21 of the Constitution of India. The petitioner’s counsel argued that in light of this landmark judgment, any ongoing proceedings under the now-struck provision ought to be quashed.

The court referred to the judgment in Joseph Shine v. Union of India, highlighting that adultery as defined in Section 497 IPC created a criminal liability for only one party, and reflected a patriarchal and archaic view of gender roles. “The provision is reflective of a ‘tripartite labyrinth’… the wife has been ignored as the victim,” the judgment recorded.

Justice Krishna observed that “the sanctity of the marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow,” thereby questioning the unequal and arbitrary application of the law under Section 497 IPC.

The court also recorded the Supreme Court’s reasoning that criminalizing adultery did not preserve the institution of marriage but rather intruded upon personal and private relationships. As noted by the Supreme Court, “thinking of adultery from the point of criminality would be a retrograde step.”

The bench further cited the Supreme Court's opinion that “if the act of adultery is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in their marital relationships,” and thus such a law was “manifestly arbitrary.”

Justice Krishna noted that under the provision, “a married or unmarried man who has sexual intercourse with a married woman does not commit the offence if the husband consents or connives,” which revealed the law’s deeply patriarchal underpinnings by treating women as property.

The judgment elaborated that the accused’s liability stemmed solely from the presumption of an overnight stay with the complainant’s spouse at a hotel, without any direct evidence of sexual intercourse. The court stated that “there can be no presumption of they having indulged in a sexual intercourse… there is no oral or documentary evidence, but [the allegation] is based on a presumption.” Therefore, even factually, the complaint did not meet the statutory threshold for constituting the offence under Section 497 IPC.

On the issue of retrospective application of Joseph Shine, the bench referred to multiple precedents, including Maj. Genl. A.S. Gauraya v. S.N. Thakur (1986 AIR 1440), affirming that a declaration of law by the Supreme Court applies retrospectively and must be enforced even in pending proceedings. The court also cited rulings from High Courts of Telangana, Punjab & Haryana, and Jharkhand which had quashed pending adultery cases following the Joseph Shine verdict.

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The court directed that the summoning order issued by the learned ASJ dated April 28, 2018, be set aside. It recorded that the criminal complaint filed under Section 497 IPC was no longer sustainable in law, as the provision had been declared unconstitutional by the Supreme Court.

“The Complaint Case No.153/1 filed… on the allegations of Section 497 IPC against the Petitioner, is therefore, liable to be quashed.”

It further stated: “The impugned Order of Ld. ASJ dated 28.04.2018 summoning the Petitioner under S. 497 IPC, is hereby set aside and the Complaint… is hereby quashed and the Petitioner is discharged.”

The petition was accordingly allowed and pending applications disposed of.

Advocates Representing the Parties

For the Petitioners: Mr. J.S. Rawat, Advocate
For the Respondents: Ms. Meenakshi Dahiya, APP, Mr. Satish Kumar, Advocate

Case Title: Ashok Kumar Singh v. The State & Anr.
Neutral Citation: 2025:DHC:2700
Case Number: CRL.M.C. 3652/2018 & CRL.M.A. 28469/2018
Bench: Justice Neena Bansal Krishna

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