The CJI and Justice Khanwilkar said: "We declare Section 497 IPC and Section 198 of CrPC dealing with the prosecution of offences against marriage as unconstitutional".
Section 34 (d) grants the right of a married person to sue his/her spouse on the grounds of adultery, fornication, bigamy, rape or any other unnatural offence.
Shine had questioned the immunity accorded to women if they commit the offence of adultery. In a country beset with rising divorce rates and cases of marital infidelity, the decriminalization of adultery will critically endanger the institution of marriage.
Joseph Shine, through advocates Kaleeswaram Raj and Suvidutt MS, had filed a petition seeking the repeal of Section 497 which had come up before the Supreme Court in December 2017. "The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society".
He said his wife slapped a case of adultery against him when he found out about her affair. The offence of adultery entailed a maximum punishment of five years, or with fine, or both.
"Earlier at least the wife of the paramour was able to file a case against him but now my wife and her lover will get a free hand to do what they want", he said. The court observed that the section hence treated the woman as the property of the husband.
Delhi Commission for Women (DCW) chairperson Swati Maliwal on Thursday criticised the striking down of the British-era adultery law by the Supreme Court, saying that the decision is tantamount to extending "open licence" to cheating among men. Legislature has imposed a condition on sexuality of women by making adultery as offence, he said, adding that section 497 is denial of substance of equality.
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Prime Minister Narendra Modi's right-wing government told a court past year that it believes criminalising marital rape could destabilise marriages and make men vulnerable to harassment by their wives. "The law on adultery is but a codified rule of patriarchy", he added."Autonomy is intrinsic in dignified human existence, Section 497 denuded the woman from making choices".
"Adultery can not and should not be a crime".
Many Asian countries uphold adultery as a crime.
In the United Kingdom, adultery is not a criminal offence and like many other countries, one of the main reasons given for divorce.
Since then, the top court has rejected similar pleas, including the constitutional validity of the law, at least twice - 1985 and 1988.
It said the law was about punishing the "outsider" who "breaks into the matrimonial home" and "violates its sanctity".
A five-judge bench of the supreme court unanimously ruled that the criminal offence of having a sexual relationship with a woman without her husband's consent was archaic and deprived women of agency.