Joseph Shine v. Union of India

Section 497 of the Indian Penal Code made adultery an offence. If a man had a sexual relationship with a woman whom he knew to be another man's wife, without the consent or connivance of her husband, he committed adultery. Connivance means deliberately turning a blind eye, or silently allowing something to happen. The punishment was imprisonment for up to five years, or a fine, or both.

Only the man could be punished. The woman could not be punished, not even as an abettor. The law assumed she was a passive victim who had been seduced. If the husband consented, there was no offence. A married man's relationship with an unmarried woman or a widow was also not an offence. Under Section 198(2) of the Criminal Procedure Code, only the husband could file a complaint for adultery. A wife could not file a case against her husband.

Joseph Shine, who belonged to Kerala and was settled abroad, filed a petition directly in the Supreme Court under Article 32. He challenged Section 497 IPC and Section 198 CrPC. The matter went to a five-judge Constitution Bench.

1. Were Section 497 of the IPC and Section 198 of the Criminal Procedure Code constitutional?

2. Should adultery be treated as a criminal offence at all? Put simply, which should prevail: the sanctity of marriage, or individual liberty and gender equality?

Petitioner's side:

(a) Section 497 punished only the man. This violated the equality principle in Article 14.

(b) A woman could not bring a case over her husband's adultery. This was gender-based discrimination.

(c) The law treated the woman like property, as if her will depended on her husband's permission.

(d) The law was paternalistic. It assumed a woman could not enter a relationship of her own free will.

(e) It violated the right to privacy and sexual autonomy under Article 21, because choosing an intimate partner is a personal decision. Sexual autonomy means the right to decide for oneself about one's own body and relationships.

(f) If adultery is a consensual act, both parties should be responsible. Punishing only the man was unfair.

(g) Overall, the law was gender-biased and violated Articles 14, 15 and 21.

Union of India:

(a) Keeping adultery a crime was necessary to protect the sanctity of marriage.

(b) It is the State's duty to punish acts against the morality of society that cause public harm.

(c) The right to privacy is not absolute. Reasonable restrictions can be placed on it in the public interest.

(d) Section 497 actually favoured women because it protected them from prosecution. It was a special provision for women under Article 15(3).

The Supreme Court unanimously declared Section 497 of the IPC unconstitutional. It also declared Section 198 of the Criminal Procedure Code unconstitutional insofar as it applied to adultery.

The Court gave these reasons:

(a) Section 497 was based on patriarchal stereotypes. It assumed the woman was passive and could not exercise her sexual autonomy without her husband's consent. Justice D. Y. Chandrachud said the law viewed the woman as her husband's chattel, that is, his private property.

(b) The Court rejected the Article 15(3) defence. Laws that keep women in a cage cannot be justified in the name of protective discrimination. Article 15(3) is meant to empower women, not to control them. Protecting a woman from prosecution here was a method of control, not empowerment.

(c) Section 198 was biased because only the husband, not the wife, could complain.

(d) There was no reasonable principle in Section 497 for making consensual sexual activity a crime.

(e) The law violated Article 14 because it was arbitrary and against equality. It violated Article 15 because it rested on gender stereotypes. It violated Article 21 because it denied dignity, privacy and sexual autonomy. It also denied substantive equality by giving the woman a secondary status within marriage.

(f) Criminal law must follow constitutional morality, not old social morality.

On earlier cases, the Court rejected the reasoning of Yusuf Abdul Aziz (1954), which had upheld Section 497 on the basis of Article 15(3). It overruled Sowmithri Vishnu (1985) and V. Revathi (1988).

Adultery is no longer a crime. It remains a civil wrong and can still be a ground for divorce.

Section 497, Indian Penal Code; Section 198 (clause 2), Criminal Procedure Code (insofar as it applied to adultery); Article 14, Constitution of India; Article 15, Constitution of India; Article 15(3), Constitution of India; Article 21, Constitution of India; Article 32, Constitution of India; B.N.S. (no offence of adultery)

This judgment decriminalised adultery. It is regarded as a milestone for gender equality, privacy and personal liberty.

It is a leading example of the Court using constitutional morality over social morality. It also shows how the Court reads Article 15(3) as a tool to empower women, not to control them.

It rejected the reasoning in Yusuf Abdul Aziz and overruled Sowmithri Vishnu and V. Revathi.

It is still relevant under the new criminal law. A Parliamentary Standing Committee suggested bringing adultery back as a gender-neutral offence, but the B.N.S. did not make adultery a crime again.

The lecture says it is linked to Navtej Singh Johar (on Section 377), which used the same constitutional-morality approach.

Exam keywords: Section 497 and Section 198, woman as chattel, misuse of Article 15(3), constitutional morality versus social morality, and adultery as a civil wrong, not a crime.

Hypothetical: Zoya is married to Farhan. Zoya has a consensual relationship with Prince. Farhan is angry and wants to file a criminal complaint against Prince for adultery so that Prince is jailed.

After Joseph Shine, Farhan cannot do this. Section 497 IPC has been struck down, and the B.N.S. has no offence of adultery. Farhan may, however, use the adultery as a ground to seek divorce from Zoya in a civil or family court.

The position is the same the other way round. If Neha's husband Aadil has an extra-marital relationship, neither party can be prosecuted for it, but Neha may seek divorce on that ground.