In cases of adultery, the law expects parties to remain loyal and maintain fidelity throughout, and also identifies the adulterer as the culprit. This expectation by law is a command that gets to the core of privacy. Two individuals may part on said grounds, but to attach criminality to the same is the opposite.

When parties to a marriage lose their moral commitment to the relationship, it creates a dent in the marriage, and it will depend on the parties how they deal with the situation. Some may exonerate and live together, and some may seek divorce.

The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage.

It is difficult to conceive of such situations in absolute terms. If the act is treated as an offence and punishment is provided, it would amount to punishing the people who are unhappy in their marital relationship, and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not.

As Section 497 of the IPC is unconstitutional, and adultery should not be treated as an offence, it is appropriate to declare Section 198 of the CrPC, which deals with the procedure for filing the complaint in relation to the offence of adultery, as unconstitutional.