IN THE SUPREME COURT OF INDIA Writ Petition (Criminal) No. 194 of 2017(Under Article 32 of the Constitution of India) Decided On: 27.09.2018 Joseph Shine Vs.Union of India (UOI)

CASE NAME:

IN THE SUPREME COURT OF INDIA Writ Petition (Criminal) No. 194 of 2017 (Under Article 32 of the Constitution of India) Decided On: 27.09.2018 Joseph Shine Vs. Union of India (UOI)

Hon’ble Judges/Coram: Dipak Misra, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.

FACTS

In Joseph Shine v. Union of India, the petitioner, Joseph Shine, is an Indian-origin businessman settled in Italy and does not ordinarily reside in Kerala. The petition arose from a distressing incident in Kerala involving one of his close friends, who ended his life after allegedly being falsely implicated in a rape case by a woman colleague.

Disturbed by this incident, the petitioner invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution to challenge the legality of Section 497 of the Indian Penal Code, which treated adultery as a criminal offence, along with Section 198(2) of the Code of Criminal Procedure, 1973. The impugned procedural provision permitted only the husband of the woman involved to initiate legal proceedings for adultery, effectively denying standing to all other affected persons in relation to offences under Sections 497 and 498 of the IPC.

The petitioner argued that these statutory provisions were unjust, arbitrary, and founded on outdated gender stereotypes. He asserted that they infringed the fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution, as they violated the principle of equality before law and promoted discriminatory treatment under the guise of criminal justice.

HISTORY

Joseph Shine challenged the validity of Section 497 of the Indian Penal Code, which made adultery a crime, in a Public Interest Litigation (PIL) submitted to the Supreme Court of India.

Since Joseph Shine v. Union of India was brought before the Indian Supreme Court as a Public Interest Litigation (PIL), there were no rulings from subordinate courts in this case.

As a result, the case moved straight to the highest court, which rendered a decision in 2018.  The Supreme Court heard arguments and hearings in this matter at several stages. In the end, the Supreme Court ruled in September 2018 that Section 497 was unconstitutional and that it should be repealed.

The court’s ruling marked a fundamental shift in Indian jurisprudence with regard to equality and personal autonomy in marriage.

ISSUES

  Does treating adultery as a criminal offence result in unreasonable classification and unequal application of law, thereby offending Article 14 of the Constitution?

  Is Section 497 of the Indian Penal Code compatible with constitutional principles, or does it fail the test of constitutionality?

  Does the adultery law perpetuate patriarchal assumptions by viewing women as subordinate to male authority and creating gender-based distinctions under Article 15, especially where the husband’s consent negates criminal liability?

  Is the inherent dignity of a woman violated when the law refuses to acknowledge her independent sexual agency and freedom of personal choice?

  Does the State, by criminalising adultery, overstep its authority by intruding into the private and intimate domain of marital relationships?

  Should the legal framework governing adultery be revised to eliminate gender bias and ensure neutrality between men and women?

  In light of the fact that Section 497 bars a wife from prosecuting her husband for adultery, does this provision call for statutory correction to ensure fairness?

  Should the legal system provide the spouse of a person committing adultery with the right to initiate proceedings for conduct that damages the marital bond?

ARGUMENTS

BY PETITIONER

The petitioner’s counsel drew the Court’s attention to several inherent defects in Section 497, arguing that the provision resulted in the violation of fundamental rights. It was emphasised that the law was a product of the colonial period and no longer corresponded with present-day constitutional morality or contemporary social realities, rendering it outdated and ineffective.

It was further submitted that Section 497 of the Indian Penal Code, read together with Section 198(2) of the Code of Criminal Procedure, directly conflicted with Article 14 of the Constitution, which mandates equality before the law and equal protection of legal rights.

The counsel argued that the offence of adultery was framed entirely on a gender-based distinction that lacked any reasonable nexus with the objective of the legislation. The statutory scheme disregarded the wife’s consent altogether, making the classification irrational and constitutionally impermissible under Article 14.

The petitioner also maintained that the impugned provisions were arbitrary and rooted in paternalistic assumptions, thereby infringing Articles 14, 15, and 21 of the Constitution. Since adultery involves a consensual relationship between adults, it was contended that imposing criminal liability on one participant while granting immunity to the other was unjustified and unconstitutional.

It was further argued that Section 497 encroached upon the right to privacy guaranteed under Article 21, as choices relating to intimate relationships and sexual conduct fall within the core area of personal autonomy. The petitioner asserted that every individual, regardless of gender or marital status, has the freedom to make decisions concerning consensual sexual relations without unwarranted state interference.

The counsel also pointed out the inherent imbalance in the provision, noting that while men could be prosecuted for adultery, women were entirely shielded from criminal liability. In addition, the statute failed to provide any mechanism for a wife to initiate legal action against her husband for acts of adultery.

Finally, it was contended that the law objectified women by making the criminality of the act dependent on the husband’s approval or disapproval, thereby reinforcing patriarchal control and denying women independent agency over their own sexuality.

RESPONDENT

Counsel appearing on behalf of the respondents submitted that adultery amounts to a grave wrongdoing, as sexual relationships outside the marital bond disrupt family unity and weaken the very foundation of marriage. It was argued that the imposition of criminal punishment serves as an effective deterrent and helps safeguard the sanctity of the marital institution.

The respondents further contended that the impact of adultery extends beyond the spouses alone, adversely affecting children and undermining the ethical standards of society as a whole. The counsel described adultery as an act that offends social morality and merits penal action, particularly when a third party knowingly intrudes into a subsisting marital relationship, thereby causing harm to family life.

It was also submitted that any differential treatment under Section 497 of the Indian Penal Code is constitutionally justified under Article 15(3), which authorises the State to frame special legal protections for women and children.

The counsel emphasised that conduct of this nature shocks the collective conscience of society and causes broader social harm, warranting its classification as a criminal offence.

With respect to the right to privacy, the respondents argued that the guarantees of privacy and personal liberty under Article 21 are not absolute in nature and may be restricted when larger public interests are involved. It was asserted that the right to privacy cannot be extended to protect consensual sexual relations involving a married person outside the scope of their marriage.

The respondents also maintained that Section 497 functioned as a form of beneficial or protective legislation aimed at safeguarding women, rather than as a provision that discriminated against them.

According to the counsel, the provision acted as a legal barrier against immoral conduct that threatens the social and moral structure of marriage and should, therefore, be upheld.

Finally, the respondents urged the Court to adopt a limited approach by striking down only the unconstitutional portions of Section 497, if necessary, while retaining the remainder of the provision instead of invalidating it in its entirety.Top of Form

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JUDGEMENT / RULE

The Supreme Court of India delivered a unanimous verdict in Joseph Shine v. Union of India, with no dissenting opinions among the judges. The Constitution Bench consisted of Chief Justice Dipak Misra and Justices R.F. Nariman, D.Y. Chandrachud, Indu Malhotra, and A.M. Khanwilkar. All five judges concurred in holding that Section 497 of the Indian Penal Code was unconstitutional and deserved to be struck down.

In this landmark ruling, the Supreme Court invalidated Section 497 of the IPC on the ground that it violated Articles 14, 15, and 21 of the Constitution of India. The Court further declared Section 198(2) of the Code of Criminal Procedure unconstitutional insofar as it related to the offence of adultery under Section 497. By doing so, the judgment effectively overturned earlier judicial precedents that had upheld the criminalisation of adultery.

Chief Justice Dipak Misra, in his opinion, firmly rejected the outdated notion that a wife is the property of her husband or that the husband exercises dominance over her. He emphasised that marriage does not confer ownership or control of one spouse over the other.

Justice D.Y. Chandrachud, in his concurring opinion, elaborated on how adultery laws intruded upon the right to privacy, drawing support from comparative constitutional jurisprudence, including decisions of the United States Supreme Court. He categorically stated that misogynistic and patriarchal assumptions regarding women’s sexual control have no place in a constitutional framework that upholds dignity and autonomy as fundamental values. Referring to Navtej Singh Johar v. Union of India, Justice Chandrachud underlined sexual autonomy as an essential component of individual liberty. He observed that criminalising conduct occurring within the private sphere of individuals, based on regressive moral standards, causes serious indignity. According to him, the right to sexual privacy is intrinsic to the concepts of liberty and human dignity.

He also relied on the principles laid down in K.S. Puttaswamy v. Union of India, stressing that any legal provision governing marriage must recognise women as equal participants entitled to constitutional protections of privacy and dignity. A dignified life, he observed, requires safeguarding the most intimate aspects of human personality from unwarranted state interference.

Justice Chandrachud’s reasoning strongly focused on sexual autonomy as an inseparable facet of life and personal liberty under Article 21. He held that Section 497 deprived women of their autonomy, dignity, privacy, and freedom of choice by treating them as passive subjects within marriage.

The Court observed that the provision reinforced a flawed conception of marriage that undermined true equality between spouses. By adopting a gender-based penal approach to marital relationships, Section 497 destroyed the principle of equality and intruded into personal liberty protected under Article 21.

The judgment further recognised that trust, mutual respect, and equality form the foundation of a healthy marital relationship. Respect for sexual autonomy can exist only when both spouses are treated with equal dignity.

Section 497 was found to deny substantive equality by presuming that women are incapable of granting independent consent and by treating them as the sexual property of their husbands. The law placed undue emphasis on the consent of the husband, thereby reinforcing the subordination of women. Consequently, the provision was held to violate Article 14 as well as the non-discrimination mandate under Article 15, in addition to infringing Article 21.

The Court clarified that adultery can no longer be treated as a criminal offence since crimes are offences against society at large, whereas adultery is essentially a private matter between individuals. Criminalising adultery was found to be an unjustified intrusion into the deeply personal domain of marriage. However, the Court acknowledged that adultery may still constitute a civil wrong and serve as a valid ground for divorce.

Justice Dipak Misra also referred to his earlier observations in Voluntary Health Association of Punjab v. Union of India, where he emphasised that women must be recognised as equal partners in all aspects of social life, including decision-making, participation, and leadership.

The arbitrariness of Section 497 was highlighted throughout the judgment. The provision allowed a husband to consent to his wife’s adulterous relationship, thereby negating criminal liability, which clearly failed to protect the sanctity of marriage. Instead, it preserved the proprietary rights of the husband while denying the wife any legal remedy against her husband’s infidelity. The section also ignored situations involving married men engaging in sexual relationships with unmarried women.

Justice Indu Malhotra, while concurring with the outcome, expressed the view that adultery should be treated as a civil wrong rather than a criminal offence. She opined that while Article 21 does not grant absolute protection to consensual sexual relationships outside marriage, an individual’s autonomy in matters of sexuality within the most intimate spaces of life must be shielded from criminal sanctions and public condemnation.

She concluded that Section 497 failed to satisfy the three-fold test for permissible invasion of privacy laid down in the Puttaswamy judgment. Accordingly, the provision was constitutionally unsustainable.

In conclusion, the Supreme Court held that Section 497 was archaic and unconstitutional as it stripped women of autonomy, dignity, and privacy. The Bench reaffirmed that the provision violated Article 14 due to arbitrariness, contravened Article 15 due to gender bias, and infringed Article 21 by denying women the fundamental rights to liberty, dignity, privacy, and sexual autonomy.

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PREVIOUS JUDGEMENTSEven before Joseph Shine v. Union of India, the constitutional soundness of Section 497 of the Indian Penal Code and Section 198 of the Code of Criminal Procedure had repeatedly come under judicial examination by the Supreme Court of India. The earliest challenge can be traced to Yusuf Abdul Aziz v. State of Bombay, in which a husband prosecuted for adultery questioned the validity of Section 497. He approached the Bombay High Court invoking Article 228 of the Constitution. The High Court dismissed the challenge, and Justice Chagla offered notable remarks on the presumptions and legislative intent underlying the adultery provision.

The issue resurfaced in Sowmithri Vishnu v. Union of India, where the petitioner attacked Section 497 on three specific grounds. It was argued that the law failed to grant a wife the right to proceed legally against the woman involved in an adulterous relationship with her husband. Additionally, it denied her the authority to prosecute her husband for adultery. The provision was also criticised for excluding circumstances in which a married man engaged in sexual relations with an unmarried woman.

The debate was further developed in V. Revathi v. Union of India, where the Supreme Court held that Section 497 prevented both spouses from initiating criminal action against each other for marital infidelity. The Court noted that neither the husband of an adulterous wife nor the wife of an adulterous husband could bring a prosecution. On this basis, it was concluded that the provision did not violate equality on the ground of sex, as the restriction applied uniformly to both parties.

RATIO DECENDI

In this historic decision, the Hon’ble Supreme Court invalidated Section 497 of the Indian Penal Code, holding that the provision was inconsistent with Articles 14, 15, and 21 of the Constitution of India and therefore unconstitutional.

The Court further clarified that Section 198(2) of the Code of Criminal Procedure could not survive constitutional scrutiny insofar as it operated in conjunction with Section 497 of the IPC, and accordingly struck it down to that extent.

The Supreme Court observed that criminal law is meant to address offences against society at large, whereas adultery constitutes a matter of a personal and private nature between individuals. As such, it does not warrant the imposition of criminal sanctions.

Emphasising the right to dignity, the Court noted that punishment should be imposed only when it is strictly justified and after careful examination of the necessity for criminal intervention. It categorically rejected the notion of treating women as property or objects under the law.

Accordingly, the Court concluded that the adultery provision was inherently discriminatory, rooted in outdated social norms, and incompatible with contemporary constitutional values. On this basis, it was declared unconstitutional.

Following this landmark ruling, adultery no longer attracts criminal liability and remains relevant only as a civil ground for divorce. Individuals engaging in consensual sexual relationships outside marriage are no longer subject to criminal punishment.

CONCLUSION

Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, a few decades back, got the stamp of serene approval may have to meet be removed with the flow of time and growing constitutional precepts and progression in society. It is advisable to remember what John Stuart Mill had observed: The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. Hon’ble Justice Indu Malhotra in Joseph Shine Vs Union of India said that Section 497 infringed on the right to sexual self-determination and privacy. The period when wives were invisible to the law and lived in the shadows of their husbands, has gone away a long time back. A legislation that supports and maintain such stereotypes in relationships, and keep in existence the discrimination is a clear violation of fundamental rights. The recognition of adultery law as unconstitutional shows that finally the inherent discrimination in adultery law has been removed but we hope that this judgment will make a path for challenging more discriminatory laws in the Indian legal system.

OBSERVATION BY WRITER

Many developed and progressive countries have already removed adultery from the domain of criminal law. Considering that issues of adultery concern deeply personal and intimate relationships, such conduct may be more appropriately addressed as a civil matter, either through matrimonial relief or tortious claims. Often, situations involving adultery arise from troubled or dissatisfied marital relationships, and therefore, it is preferable to allow the individuals involved to resolve such matters within their private sphere. This approach upholds the fundamental right to personal liberty and enables parties to pursue civil remedies if they so desire, without the interference of criminal law.

However, it cannot be overlooked that adultery is still widely regarded as socially unacceptable. Prevailing moral beliefs within society continue to disapprove of such conduct. Despite this, constitutional morality mandates adherence to the values and principles enshrined in the Constitution, even when they differ from traditional social norms. Since the rule of law is a foundational feature of the Constitution, society must progressively adapt to legal developments introduced by the Supreme Court and align its moral outlook with evolving constitutional standards.

References (OSCOLA Style)

Cases

Joseph Shine v Union of India (2019) 3 SCC 39.

Sushma & Others v Commissioner of Police, WP No 7284 of 2021, Madras High Court.

Legislation

The Indian Penal Code 1860.

The Constitution of India 1950.

Journal Articles and Case Comments

‘Affirmative Action under Article 15(3): Reassessing the Meaning of “Special Provisions” for Women’ (2020) 32(2) National Law School of India Review 242.

‘Decriminalisation of Adultery: The Indian Experience and Experiment – How Much Shine in the Joseph Shine Verdict?’ (2020) 5 SCC Journal 25.

‘Case Commentary: Joseph Shine v Union of India’ (2022) 2(3) Journal of Constitutional Law and Jurisprudence 690.

‘Laws for the Common Man’ (2022) 3(1) Journal of Constitutional Law and Jurisprudence 1679.

‘Right to Privacy of Unmarried Couples vis-à-vis the Immoral Traffic (Prevention) Act, 1956’ (2021) 5(2) Calcutta Law Quarterly 35.

‘Unconstitutionality of Legislations for Being Obsolete, Outdated and Outlived’ (2022) SCC Online Blog Exp 46

‘Legal Research: Three Dimensions’ (2021) 63 Journal of the Indian Law Institute 261.

‘On the Emergence of “Constitutional Morality” as a Double-Edged Sword in India’ (2022) 3(1) Journal of Constitutional Law and Jurisprudence 1779.

‘Guardian-Authorised Sterilisation of Disabled Girls: A Capability Approach Narrative’ (2020) 5(1) NLUO Socio-Legal Journal 119.