Unconstitutionality of Section 497 IPC Bars Continuation of Pending Adultery Prosecutions (No Prospective Saving)

1. Introduction

The Gujarat High Court in MANSUKHBHAI DHANJIBHAI MAKWANA v. STATE OF GUJARAT (decided on 16-03-2026) considered whether a criminal prosecution founded substantially on the offence of adultery could continue after Section 497 of the Indian Penal Code had been declared unconstitutional by the Supreme Court.

The applicant (husband/complainant) had lodged a private complaint alleging that respondent no.2 (wife) was residing with respondent no.3 and that respondent no.3 had committed adultery. Following inquiry, process was issued for Sections 497 and 114 IPC. The accused sought discharge under Section 245 CrPC, which the trial court allowed, primarily because Section 497 IPC had been struck down. The complainant’s appeal failed, and he then invoked the High Court’s revisional jurisdiction to challenge both the discharge order and the appellate confirmation.

The core issue was the complainant’s contention that the Supreme Court’s invalidation of Section 497 IPC should operate prospectively, thereby allowing pre-declaration complaints to proceed.

2. Summary of the Judgment

• The High Court dismissed the criminal revision application and upheld the discharge.
• It held that once Section 497 IPC has been declared unconstitutional, no criminal prosecution can continue solely on the basis of alleged adultery.
• The Court rejected the argument that the Supreme Court decision should be treated as prospective for preserving earlier-filed complaints.
• It reiterated the limits of revisional jurisdiction: absent perversity, jurisdictional error, or illegality, the High Court will not interfere or re-appreciate evidence.

3. Analysis

3.1 Precedents Cited

Joseph Shine Petitioner(S) v. Union Of India (S)., (2019) 3 SCC 39.

The High Court treated Joseph Shine as determinative of the legal foundation of the prosecution. The Supreme Court in that case struck down Section 497 IPC as unconstitutional and violative of Articles 14, 15 and 21 of the Constitution.

In the present case, the High Court applied the consequence of that holding: where the only substantive gravamen is adultery, a prosecution cannot survive because the very penal provision has ceased to have constitutional validity.

Notably, the High Court emphasized that no other independent criminal consequence (such as abetment of suicide or any distinct offence) was alleged in the complaint; hence there was no alternative legal footing on which the prosecution could proceed.

3.2 Legal Reasoning

1. Effect of a provision being declared unconstitutional: The Court reasoned that once Section 497 IPC has been struck down, the “question of continuing the criminal prosecution” on the basis of adultery allegations “does not arise.” In substance, the prosecution loses its statutory anchor.
2. Rejection of “prospective-only” saving for pre-existing complaints: The complainant argued that because his complaint preceded the Supreme Court’s declaration, it should continue. The High Court declined this, holding that the contention of purely prospective application “cannot be accepted in the facts of the present case.” The judgment thereby treats the invalidation as immediately disabling the continued prosecution for the struck-down offence, including in pending matters.
3. Absence of independent offences: While the complaint originally referred to multiple sections, the record as discussed by the Court shows that process ultimately issued for Sections 497 and 114 IPC. The High Court highlighted that, beyond adultery, there was no pleaded “other consequence or independent offence” to sustain continuation.
4. Revisional restraint: The Court reaffirmed that revisional jurisdiction is supervisory and narrow: it will not re-assess evidence unless there is “clear jurisdictional error, perversity, or illegality.” Finding none, it refused interference.

3.3 Impact

• Pending adultery prosecutions: The decision reinforces that prosecutions resting solely on Section 497 IPC cannot proceed even if instituted prior to the Supreme Court’s declaration of unconstitutionality, unless there is an independent, legally sustainable offence.
• Limits on “prospective overruling” arguments: The judgment signals that litigants cannot assume a constitutional invalidation will be treated as prospective to preserve pending criminal cases, particularly when the offence provision itself is the sole basis for prosecution.
• Revisional practice: It strengthens the practical threshold for interference in revision—parties must demonstrate perversity, illegality, or jurisdictional error, not merely disagreement with discharge outcomes.
• Complaint drafting and charging decisions: Post-Joseph Shine, complainants and prosecutors must identify and plead any genuinely independent offences (if factually made out), because “adultery” as a standalone criminal charge cannot carry proceedings forward.

4. Complex Concepts Simplified

Discharge under Section 245 CrPC

A stage in certain warrant-case proceedings where the accused can be released if the court concludes that the charge is groundless or not legally maintainable on the materials before it.

Section declared “unconstitutional”

A court finding that a statutory provision violates the Constitution. Once struck down, it cannot be used as a valid basis to punish someone under that provision.

Prospective application / prospective overruling

An approach where a court’s new rule applies only to future cases (or from a specified date), potentially preserving past actions. Here, the High Court did not accept that the striking down of Section 497 IPC preserved earlier-filed adultery prosecutions.

Revisional jurisdiction

A supervisory power of a higher court to correct serious errors (like illegality, perversity, or jurisdictional mistakes) in lower-court orders. It is not a full rehearing on facts.

5. Conclusion

The Gujarat High Court’s decision crystallizes a clear operational rule after the invalidation of Section 497 IPC: criminal proceedings founded only on adultery allegations cannot continue, even if initiated before the Supreme Court’s decision, and the “prospective-only” argument will not, by itself, revive or preserve such prosecutions.

The judgment also reiterates that revisional courts will not disturb well-reasoned discharge orders unless a demonstrable perversity, illegality, or jurisdictional error is shown—thereby anchoring both substantive constitutional consequence (post-Joseph Shine) and procedural restraint in revision.