ADULTERY

IPC Section 497 'Arbitrary, Unconstitutional'; Adultery Can't Be a Criminal Offence: SC. ... New Delhi: A five-judge bench headed by Chief Justice of India Dipak Misra on Thursday unanimously ruled that Section 497 of the Indian Penal Code is unconstitutional, and struck it down.

You may file a quashing petition in the High Court.

Dear Mr Sharma, 

Your knowledge about Section 497 IPC being declared unconstitutional is absolutely correct. You are also right on the aspect that no court can frame charges under a non-existent provision. The Hon'ble Supreme Court in the case of Joseph Shine versus Union of India [Writ Petition (Criminal) No 194 of 2017] declared section 497 IPC as unconstitutional for being violative of fundamental rights guaranteed under Part III of Constitution of India. The effect of such declaration is that the provision has ceased to be in effect (it is non-existent).

As far as proceedings against you are concerned, the same are not maintainable, therefore, you have 2 options:-

1. File quashing of the proceedings under Section 482 Cr PC. before the High Court (HC)

2. File discharge application before the Magistrate. 

Both options are similar in nature. The discharge application is a better option because the same will be less expensive as compared to quashing petition before the HC. 

Regards

Shubham Bhardwaj (Advocate)

District & Sessions Court, Chandigarh.

Punjab & Haryana High Court, At Chandigarh.