Authored By: Isha Sameer Upadhyay
KES' Shri Jayantilal H. Patel Law College, University of Mumbai
⮚ Citation : AIR 2018 SC 4898, 2019 (3) SCC 39
⮚ Court : The Supreme Court of India
⮚ Judges: Chief Justice Dipak Misra, Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, and Justice Indu Malhotra.
⮚ Bench Type: A five-judge Constitution bench
⮚ Date of Judgement : September 27, 2018.
⮚ Parties Involved :
Petitioner: Joseph Shine (a non-resident Indian hotelier from Kerala).
Petitioner: Joseph Shine
Lawyers: Kaleeswaram Raj and M.S. Suvidutt (Advocate-on-Record).
Respondent : Union of India
Lawyers: K.K. Venugopal (then Attorney General for India) and B.V. Balaram Das (Advocate-on Record).
⮚ Facts of the Case:
The petitioner, a non-resident Keralite, questioned the constitutional validity of Section 497 of the IPC, read with Section 198(2) of the CrPC, arguing that it stood as a clear obstacle to achieving gender equality and justice. He pointed out that the law treated adultery as an offence committed by one man against another, denying women agency and violating the guarantee of equal treatment under Articles 14 and 15 of the Constitution. The petition also stemmed from a deeply personal incident, as Joseph Shine filed it after his close friend in Kerala tragically took his own life following a false accusation by a female colleague. He contended that Section 497 reflected outdated patriarchal values, rooted in a colonial mindset that viewed women as property of their husbands. In his view, such a law was not only discriminatory and one-sided but also incompatible with the spirit of a modern, progressive, and egalitarian society.
Earlier, the Supreme Court had upheld this provision in several cases in Yusuf Abdul Aziz v. State of Bombay (1954), it was protected under Article 15(3) as a special provision for women; in Sowmithri Vishnu v. Union of India (1985), the Court again sustained its validity but urged legislative reform to make it gender-neutral; and in V. Revathi v. Union of India (1988), it was described as a “shield” safeguarding marriage from outside interference rather than a weapon for spouses against each other. These rulings, none brought substantive reform, leaving the issue ripe for constitutional reconsideration in Joseph Shine.
⮚ Issues Raised:
∙ Whether Section 497 of IPC violated the fundamental right of equality under article 14 of Indian Constitution by being arbitrary and discriminatory?
∙ Whether section 497 IPC infringed upon the right of the privacy as a fundamental right under article 21 of the Constitution by invading the private relationships of individuals?
∙ Whether adultery laws should be made gender-neutral?
∙ Whether Section 198(2) of the Code of Criminal Procedure (CrPC) was unconstitutional? ∙ Whether Section 497 treated a woman as a property of a man?
⮚ Arguments:
▪ Key Contentions by the petitioner:
✔ The petitioner, Joseph Shine, challenged the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code, arguing that both provisions were relics of the colonial era, drafted in a time when women were seen as subordinate to men. He submitted that these provisions were outdated, inconsistent with the spirit of the Constitution, and incompatible with modern principles of equality and individual freedom.
✔ The petitioner argued that the adultery law violated Articles 14, 15 and 21 of the Constitution. Under Article 14, it was contended that the law discriminated on the basis of sex and lacked any rational nexus with its purported objective. Under Article 15, the section reinforced sex-based stereotypes, portraying women as passive objects and men as the sole moral actors. Under Article 21, it intruded into the private sphere of marriage and sexuality, which falls within an individual’s right to privacy, autonomy, and dignity.
✔ He further argued, Section 497, in punishing only the man for adultery and exempting the woman, was said to be based on a patriarchal understanding of gender roles. The petitioner pointed out that the woman’s participation in the act was seen as irrelevant , she was neither punishable nor could she file a complaint. Moreover, the offence depended on the husband’s consent , if the husband permitted his wife’s relationship, no crime was said to have occurred. This, the petitioner argued, reduced women to the status of chattel, implying that their choices and bodies were subject to male ownership.
✔ The petitioner emphasized that the classification based on sex under Section 497 was arbitrary and had no reasonable nexus with the object of protecting the sanctity of marriage. Instead of serving as a moral safeguard, the provision reflected male chauvinism and perpetuated inequality by denying women any agency in determining their own marital relationships.
✔ Drawing from the landmark judgment in K.S. Puttaswamy v. Union of India (2017), the petitioner submitted that privacy is a core facet of Article 21, encompassing the freedom to make personal and intimate choices. The law’s attempt to criminalize consensual sexual relations between adults was, therefore, a direct invasion of individual liberty and sexual autonomy. It was further argued that the choice of an intimate partner , even outside marriage lay within the private domain, where the State had no legitimate authority to interfere.
✔ The petitioner, referring to philosophical perspectives such as those of John Stuart Mill and legal scholars like Andrew Simester and Andreas von Hirsch, argued that not every moral wrong deserves criminal sanction. While adultery may be seen as morally objectionable, it does not meet the threshold of a public wrong that justifies criminalization. The law’s intrusion into private morality, he contended, was incompatible with a liberal and democratic society.
✔ The petitioner also traced the historical background of Section 497, noting that it was enacted during the British colonial rule, when women were denied legal independence and treated as extensions of their husbands. Such a mindset, he argued, had no relevance in contemporary India, where the Constitution envisions equality, dignity, and individual freedom for both sexes.
✔ It was argued that the State could not justify Section 497 under Article 15(3), which allows special provisions for women. The provision was not protective but regressive, as it stripped women of their right to prosecute and perpetuated the notion that they needed protection rather than equality. True gender justice, the petitioner asserted, lies in empowerment, not paternalism.
▪ Key contentions by the respondent:
✔ The Respondent, strongly defended Section 497 IPC as a necessary measure to protect the sanctity of marriage and uphold social morality. It was argued that permitting sexual relations outside marriage would inevitably erode the institution of marriage, which forms the core unit of society, and thus, criminalizing adultery was vital for preserving family stability and social order.
✔ The Respondent further submitted that adultery is not merely a private wrong, but a public offence that inflicts harm upon the spouse, children, and society at large. Since it outrages public morality and disrupts familial harmony, it rightfully attracts criminal sanction.
✔ It was also contended that the right to privacy and personal liberty under Article 21 is not absolute and can be subject to reasonable restrictions in the interest of public morality and social welfare. Moreover, the exemption of women from prosecution under Section 497 was defended as a form of affirmative action permissible under Article 15(3), intended to provide protection to women rather than to discriminate.
✔ The Respondent concluded that Section 497 serves a legitimate public purpose, and its repeal would weaken the sanctity of marriage and weaken the moral fabric of society.
⮚ JUDGEMENT AND BREIF ANALYSES :
The Supreme Court struck down Section 497 of the IPC as unconstitutional, being violative of Articles 14, 15 and 21 and held that Section 198(2) of the CrPC was unconstitutional to the extent that it was applicable to Section 497, IPC. This judgment overruled several previous judgments upholding the criminalization of adultery.
The Court held that Section 497 was archaic and constitutionally invalid as it stripped a woman of her autonomy, dignity and privacy. It opined that the impugned provision resulted in the infringement of a woman’s right to life and personal liberty by espousing an idea of marriage that subverted true equality by applying penal sanctions to a gender-based approach to the relationship between a man and a woman. It held that the exaggerated focus on the aspect of connivance or consent of the husband translated to subordination of the woman. The Court reaffirmed sexual privacy as a natural right under the Constitution.
It was further held that Section 497 disregarded substantive equality as it reaffirmed the idea that women were not equal participants in a marriage, and that they were not capable of independently consenting to a sexual act in society and a legal system that treated them as the sexual property of their spouse. Therefore, this Section was held to be in violation of Article 14. The judges also held that Section 497 was based on gender stereotypes and in doing so, contravened the non-discrimination provision of Article 15. Further, it was held to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy.
The Court noted that adultery remained a civil wrong and a valid ground for divorce and although it was no longer criminalised. It stated that criminal offences were committed against the society as a unit, while adultery fell under the umbrella of personal issues. In treating adultery as a crime, the Court held that the State interfered with people’s personal lives and crossed over into the private realm and subsequent to the act of adultery, the husband and the wife should be allowed to make a mutual decision based on their personal discretion.
Justice Dipak Misra and Justice A.M. Khanwilkar opined that treating adultery as a crime was an intrusion into the extreme privacy of the matrimonial sphere. They distinguished adultery from the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage as the latter set of offences are meant to sub-serve various other purposes relating to a matrimonial relationship. Criminalising adultery, in his opinion, offended two facets of Article 21 of the Constitution, namely, the dignity of husband and wife, and the privacy attached to a relationship between the two.
Justice D.Y. Chandrachud discussed the ways in which adultery implicated the right to privacy by referring to the jurisprudence of the US Supreme Court. He reiterated that misogyny and patriarchal notions of sexual control of a woman found no place in our constitutional order which recognises dignity and autonomy as intrinsic to a person. He referred to the case of Navtej Singh Johar vs. Union of India, (AIR 2018 SC 4321) to discuss the importance of sexual autonomy as a facet of individual liberty, to highlight the indignity suffered by an individual when “acts within their personal sphere” were criminalised on the basis of regressive social attitudes, and to emphasise that the right to sexual privacy was a natural right, fundamental to liberty and dignity. In his judgment, Justice D.Y. Chandrachud also referred to K.S. Puttaswamy vs. Union of India ((2017) 10 SCC 1) to emphasize that law must reflect the status of women as equals in a marriage, entitled to constitutional guarantees of privacy and dignity; and that a life of dignity entailed that the “inner recesses of the human personality” be secured from “unwanted intrusion”. His judgment “dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21”. He held that Section 497 deprived a woman of her sexual freedom and denuded her of autonomy, dignity and privacy.
Justice Indu.Malhotra opined that adultery should remain a civil wrong as the freedom to have a consensual sexual relationship outside marriage by a married person did not warrant protection under Article 21. However, in her opinion, the autonomy of an individual to make their choices with respect to their sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. Thus, she held that Section 497 did not meet the three-fold test necessary for invasion of privacy in the context of Article 21 laid down in the Puttaswamy case.
⮚ Legal Reasoning / Ratio Decidendi :
The Supreme Court in Joseph Shine v. Union of India marked a turning point, declaring that law must evolve with changing social values and constitutional growth.
It emphasized the doctrine of transformative constitutionalism, asserting that outdated precedents cannot bind justice when fundamental rights under Articles 14, 15, and 21 are at stake.
Drawing from K.S. Puttaswamy v. Union of India (2017), the Court reaffirmed that privacy, dignity, and autonomy are inseparable from the right to life.
CJI Dipak Misra observed that treating women as property of their husbands was contrary to constitutional morality and modern equality norms.
The judgment traced the colonial origins of Section 497, revealing its patriarchal foundation that denied women sexual agency and independence.
Referring to Navtej Singh Johar v. Union of India (2018), the Court noted that moral disapproval cannot justify State intrusion into private consensual acts.
It reasoned that adultery is a civil wrong, not a criminal one as punishment cannot preserve love or loyalty in a marriage.
The Court compared India’s stance with other nations that had long decriminalized adultery, recognizing it as a private, moral issue rather than a crime.
By striking down Section 497 IPC and reading down Section 198(2) CrPC, the Court overruled earlier cases like Yusuf Abdul Aziz, Sowmithri Vishnu, and V. Revathi, which had upheld the law.
This judgment thus set a progressive “Precedent”, reaffirming gender equality, personal liberty, and the right to choose as cornerstones of India’s constitutional democracy.
⮚ Conclusion/ Significance:
✔ The Supreme Court in Joseph Shine v. Union of India (2018) struck down Section 497 IPC and Section 198(2) CrPC, declaring them unconstitutional for violating Articles 14, 15, and 21.
✔ The Court observed that constitutional morality must prevail over social morality, and laws must evolve with the living spirit of the Constitution.
✔ It held that Section 497 was arbitrary and patriarchal, treating women as subservient and denying them sexual autonomy and equality in marriage.
✔ Justice D.Y. Chandrachud emphasized that criminal law must align with constitutional values, and no law can demand a woman to surrender her identity or dignity.
✔ The Court reaffirmed from K.S. Puttaswamy v. Union of India that privacy and autonomy are core to personal liberty and cannot be violated under the guise of morality.
✔ Justice Indu Malhotra stressed that Article 15(3) cannot shield laws that perpetuate discrimination; protective provisions must uplift, not oppress.
✔ The judgment traced the colonial origin of Section 497, noting that it reflected outdated notions of women as property rather than equal partners.
✔ Citing Sowmithri Vishnu, V. Revathi, and W. Kalyani, the Court expressly overruled these earlier decisions, setting a fresh precedent for gender equality.
✔ It clarified that adultery remains a civil wrong, not a criminal offence, preserving the sanctity of marriage through personal choice, not punishment.
✔ Ultimately, the verdict became a landmark in transformative justice, reinforcing that equality, dignity, and liberty must guide every law in a progressive democracy.
✔ The Joseph Shine v. Union of India (2018) judgment stands as a milestone in advancing gender equality and individual liberty. This decision redefined the idea of equality in marriage and marked a progressive shift toward a more just and modern constitutional vision.
