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This article is written by K. Pallavi and further revamped by Nishka Kamath. It discusses all the details one should learn about while reading about the landmark judgement of Joseph Shine v. Union of India, passed by the Hon’ble Supreme Court in 2018. This judgement decriminalised adultery, thus making it a civil wrong and a ground for divorce only.

It has been published by Rachit Garg.

Adultery in India was based on the notion of patriarchy and male chauvinism. This offence makes a man criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband consents or connives to such an act it will no longer be adultery. There is no right to a woman in case her husband commits adultery. In ancient history, adultery was considered to be a sinful act either done by a married man or woman. Adultery in India does not treat a woman as a culprit but as a victim who has been seduced by a man to do such an act. This law is violative of our constitutional principles i.e. equality, non-discrimination, right to live with dignity and so on. Adultery has been struck down as an offence in as many as 60 countries including South Korea, South Africa, Uganda, Japan etc., on being gender discriminative and violating the right to privacy. Even Lord Macaulay, the creator of the penal code objected its presence in the penal code as an offence rather suggested that it should be better left as a civil wrong. The law evolves with the time and many recent judgements have increased the ambit of fundamental rights in conformity with changing societal values and increasing individual liberty. This judgement joins them in creating history by striking down 158-year-old law which has lost its relevance with changing social and moral conditions. 

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A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the provision for adultery to be arbitrary and discriminatory on the basis of gender. The petitioner claimed that such a law demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the petition.

Petitioner

  • The counsel for the petitioner addressed several aspects of Section 497 that violated fundamental rights.
  • The counsel on behalf of the petitioner also pointed out the historical background of Section 497 and stated that the law was enacted during the British era and has no relevance whatsoever in modern times.
  • The counsel also asserted that Section 497 and Section 198(2) of the CrPC were against Article 14 of the Constitution, which talked about equality before the law. The counsel for the petitioner contended that the provision criminalises adultery based on classification based on gender alone, which has no rational nexus to object to being achieved. The consent of the wife is immaterial, thus it violates Article 14 of the Constitution.
  • The petitioner contended that the provision is based on the notion that a woman is the property of her husband. The provision says that if the husband gives his consent, then adultery is not committed.
  • The provision for adultery is discriminatory on the basis of gender as it provides only men with the right to prosecute against adultery, which is violative of Article 15. As per the law, a woman has no right whatsoever to lodge a complaint if she discovers that her husband had sexual intercourse with a woman outside the purview of the marriage.
  • The petitioner contended that the provision is unconstitutional as it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination, hence violating Article 21. Further, the counsel claimed that the act of two parties engaging in sexual activity with each other comes under the Right to Privacy and that sharing such discreet information will be a violation of Article 21.
  • Further, the counsel argued that women were treated as mere objects under this provision or law, as the act was considered to be an offence depending on the husband’s consent or the lack thereof.
  • The counsel also contended that the provisions were against the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India, considering their paternalistic and arbitrary nature.
  • The counsel also argued that as sexual intercourse was a reciprocal and consensual activity between both parties, both of them should be liable for a punishment.
  • The counsel further argued that every individual had the unfettered right, irrespective of their marital status or gender, to engage in sexual intercourse, be it outside the wedlock, in case he/she is married.

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Respondents

  • The counsel for the respondents contended that adultery is an offence that breaks family relations and deterrence should be there to protect the institution of marriage.
  • The respondents claim that adultery affects the spouse, children and society as a whole. The counsel also stated that adultery as a crime is morally outrageous to society and all the perpetrators committing such a crime must be liable for a penalty. It is an offence committed by an outsider with full knowledge that destroys the sanctity of marriage and family.
  • The discrimination by the provision is saved by Article 15(3), which provides the state the right to make special laws for women and children.
  • The counsel for the respondent stated that such an act would outrage the morality of society and also cause harm to its members; thus, it should be punished and considered an offence.
  • Also, the counsel contended that the Right to Privacy and Personal Liberty under Article 21 of the Constitution of India was not an absolute right and that there were reasonable restrictions when public interest was at stake. The Right to Privacy provision does not provide protection of privacy to an individual who is engaging in sexual intercourse with another married person outside the purview of his/her marriage. 
  • The counsel further argued that Section 497 was valid as a form of affirmative action that favoured women.
  • Section 497 is actually acting as a protector for society from such an immoral activity that will outrage the institution of marriage; hence, it should not be struck down.

The counsel for the respondent requested that the court delete the portion found unconstitutional but retain the provision.

  1. Whether the provision for adultery is arbitrary and discriminatory under Article 14?
  2. Whether Section 497 of the IPC is unconstitutional?
  3. Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on a gender basis under Article 15 as if the husband has consented to such an act, then such an act will no longer be considered an offence?
  4. Whether the dignity of a woman is compromised by the denial of her sexual autonomy and right to self-determination?
  5. Whether criminalising adultery is intrusion by law in the private realm of an individual?
  6. Whether adultery laws should be made gender-neutral?As per Section 497, there is no legal provision claiming that a woman can lodge a complaint against her husband who has committed adultery; should that be amended?

Yusuf Abdul Aziz v. State of Bombay (1954) SCR 930

In this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article 14 and Article 15 by saying a wife cannot be a culprit even as an abettor. The 3 judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). And Article 14 is a general provision that has to be read with other Articles and sex is just a classification, so by combining both, it is valid.

Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137

In this case, a petition was filed under Article 32 challenging the validity of Section 497 of the IPC. The challenge was based on the fact that the said provision does not provide a woman with the right to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3 Judge Bench in this case also upheld the validity by stating that extending the ambit of offence should be done by the legislature and not by courts. The offence of breaking a family is no smaller than breaking a house, so the punishment is justified. The Court accepted that only men can commit such an offence.

V. Revathi v. Union of India (1988) 2 SCC 72

In this case, the court upheld the constitutional validity of Section 497, read with Section 198, by stating that this provision disables both wife and husband from punishing each other for adultery and is hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus it is reverse discrimination in ‘favour’ of her rather than ‘against’ her.

W. Kalyani v. State through Inspector of Police and another (2012) 1 SC 358

The constitutionality of Section 497 did not arise in this case but it says that the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

  • In the 42nd Law Commission report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
  • In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
  • In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’. The same is pending for consideration.

Issue 1

The test of manifest arbitrariness should be applied to invalidate the legislation or any sub-legislation. Any law found to be arbitrary will be struck down. The Hon’ble Supreme Court cited two judgements here, namely:

The classification is found to be arbitrary in the sense that it treats only the husband as an aggrieved person given the right to prosecute for the offence, and no such right is provided to the wife. The provision is not based on equality.

The offence is based on the notion that women are the property of their husbands, and adultery is considered theft of his property because it says consent or connivance by the husband would not make it an offence. 

The provision does not treat the wife as an offender and punishes only the third party.

Such classification is arbitrary and discriminatory and has no relevance in present times where women have their own identity and stand equal to men in every aspect of life. This provision clearly violates Article 14.

Issue 2

This provision discriminates between a married man and a married woman to her detriment on the grounds of sex. This provision is based on the stereotype that a man has control over his wife’s sexuality and she is his property. It perpetuates the notion that women are passive and incapable of exercising their sexual freedom.

Section 497 protects women from being punished as abettors. It is enunciated that this provision is beneficial for women, which is saved by Article 15(3). Article 15(3) was inserted to protect women from patriarchy and pull them out of suppression. This Article was aimed to bring them equal to men. But Section 497 is not protective discrimination but grounded in patriarchy and paternalism. The Hon’ble Supreme Court cited two judgements here, namely:

    1. Government of Andhra Pradesh v. P B Vijayakumar (1995) 4 SCC 520.

Thus, the said provision violates Article 15(1) of the Constitution because it is discriminatory on the basis of gender and perpetuates the stereotype of controlling a wife’s sexual autonomy.

Issue 3

The dignity of an individual and sexual privacy is protected by the Constitution under Article 21. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life. The Hon’ble Supreme Court cited two judgements here, namely:

  1. S. Puttaswamy and Anr. v. Union of India and others (2017) 10 SCC 1.
  2. Common Cause v. Union of India and Ors. (2018) 5 SCC 1.

The provision allows adultery if the husband’s consent or connivance, which gives a man control over her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality. 

When the Penal Code was drafted the societal thinking regarding women was backward and she was treated as a chattel but after 158 years the status of women is equal to that of men. Her dignity is of utmost importance and cannot be undermined by a provision which perpetuates such gender stereotypes. Treating women as victims also demeans their individuality and questions their identity without their husbands. The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality provided under Article 21.

Issue 4

A crime is defined as an offence that affects society as a whole. Adultery, on the other hand, is an offence that tantamounts to entering the private realm. Adultery may be committed by two consenting adults, making it a victimless crime. This provision aims to protect the sanctity of marriage but we have to admit that because of a pre-existing disruption of marital ties, adultery is committed.

The other offences related to matrimonial realms, such as Section 304-B, 306, 494, and 498-A, of the IPC, or any violation of the Protection of Women from Domestic Violence Act, 2005, or violation of Section 125 of the CrPC, are related to the extinction of the life of a married woman and punish her husband and relatives.

In adultery, a third party is punished for a criminal offence with a maximum of 5 years imprisonment. This is not required, in the opinion of the Hon’ble Supreme Court. 

This provision makes a husband an aggrieved person and a woman a victim. Even if the law changes and provides equal rights to women against adultery, it is totally a private matter.

Adultery is better left as a ground for divorce and not a crime. Section 497 of the IPC is struck down and adultery can be grounds for any civil wrong, including the dissolution of marriage.

The Hon’ble Supreme Court struck down Section 497 in this landmark case and held it unconstitutional and violative of Articles 14, 15 and 21 of the Constitution of India. It also asserted that Section 198(2) of the CrPC was unconstitutional to the extent as and when it is applied to Section 497 of the IPC. This decision has revoked a lot of prior judgements that criminalised adultery.

The Apex Court stated that Section 497 was old and constitutionally invalid as it robbed a woman of her autonomy, dignity and privacy. The Court was of the opinion that such a Section violated a woman’s right to life and personal liberty by accepting the idea that marriage subverted true equality by applying penal sanctions to a gender-based approach to the relationship between a man and a woman. The Court also stated that focusing on obtaining consent from the husband translated to subordination of the woman. The Court reaffirmed sexual privacy as a natural right under the Constitution. The Court further declared that Section 497 overlooked substantive equality, as it stated that women were not equal partners in a marriage and that they were incapable of consenting to any sexual activity. The Court also pointed out the legal system where women were treated as the sexual property of their husbands. Thus, this Section was an infringement of Article 14. The Bench further stated that this Section was biased as it focused on one gender specifically and was against the principles of Article 15. Further, the Court claimed that Article 21 denied women the constitutional guarantees and fundamental rights of dignity, liberty, privacy and sexual autonomy. 

Moreover, the Court asserted that adultery remained a civil wrong and one of the elements for grounds for divorce, even though it was decriminalised now. The Court also said that criminal offences were committed against society as a whole, whereas adultery fell under the umbrella of personal issues and was not a crime against society. While considering adultery as a crime, the Court held that the state must not interfere with the personal lives of people and that the husband and wife should be permitted to make a unanimous decision based on their personal preferences and choices.

Justice D. Mishra (for himself and Justice A.M. Khanwilkar) opined that considering adultery as an offence was an infringement of the extreme privacy of the matrimonial sphere. He said that adultery is different from other matrimonial issues like demanding dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a suit for a second marriage, as the latter set of offences is meant to sub-serve various other purposes relating to a matrimonial relationship. In his opinion, criminalising adultery violated two aspects of Article 21, namely:

  1. The dignity of the husband is attached to the wife, and
  2. The privacy that is attached to a couple when in a married relationship. 

Further, Justice D.Y. Chandrachud highlighted the ways in which adultery impacted the right to privacy by drawing attention to the jurisprudence of the US Supreme Court. He stressed that misogyny and patriarchal beliefs about the sexual control of a woman found no place in our constitutional order, which respects dignity and autonomy as inherent to an individual. Referring to the case of Navtej Singh Johar v. Union of India (AIR 2018 SC 4321), he discussed the significance of sexual autonomy as an aspect 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, which was crucial to liberty and dignity. Furthermore, Justice D.Y. Chandrachud mentioned the case of K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1) and emphasised that the provision must reflect the status of women as equal parties in the institution of 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 judgement focused on the significance of sexual autonomy as a value that is important to life and personal liberty under Article 21. His judgement highlighted that Section 497 deprived women of their sexual freedom, autonomy, dignity, and privacy. 

Moreover, Justice Indu Malhotra was of the opinion that adultery should be a civil wrong, as the freedom to engage in consensual sexual activity outside the purview of marriage does not actually guarantee protection under Article 21. However, in accordance with her opinion, the autonomy of a person to make their choices with respect to their sexuality in the most intimate spaces of life should be safeguarded from public censure through criminal sanction. Hence, she concluded that Section 497 did not meet the three-fold requirement for invasion of privacy under Article 21 as established in the Puttuswamy case.

Infidelity is more common in larger cities where people are moving towards westernization. This decision has been widely criticized on the ground that it paved a way for people to commit adultery without any fear. There has been an increase in adultery since its decriminalization. Males have claimed that now there is no way to ensure the purity of bloodline. Many claims that recommendations from Law Commissions should have been accepted by the parliament in order to punish men and women both equally for adultery. The Supreme Court has also been criticized that they should have let parliament take decisions on adultery according to the changing social environment. 

  • In the 42nd Law Commission Report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
  • In the 152nd Law Commission report, it was recommended to introduce equality between sexes in the provision for adultery and reflect societal change with regard to the status of a woman. But it was not accepted.
  • In 2003, the Malimath Committee on Reforms of the Criminal Justice System was formed, which recommended amending the provision as “whosoever has sexual intercourse with a spouse of any other is guilty of adultery”. The same is pending for consideration.

The Hon’ble Supreme Court, in this landmark judgement, struck down Section 497 of the Indian Penal Code, held that this Section is violative of Articles 14, 15 and 21 of the Indian Constitution and declared that it is unconstitutional. The Court further stated that Section 198(2) of the CrPC is also unconstitutional when it comes to reading with Section 497 of the IPC. The Court went on overruling all the previous judgements that were passed in favour of adultery as an offence and also explained that every individual has the full right to make decisions when it comes to their sexual lives. Any wrong (like criminal sanctions) should be a public wrong but when it comes to cases of adultery, it is a private wrong. The right to dignity says that a person should be penalised only when it is necessary to do so and proper analysis and inquiry should be carried out before deciding to punish them. Further, no one should treat a woman as a chattel or some property. 

Such a law is quite archaic and was created when there was no Constitution enacted, so it has to be amended or stuck down because patriarchal laws do not hold much significance in this era. Even though the act of sexual infidelity is morally wrong, there are no sufficient conditions to criminalise it. The harm principle needs 3 elements to be fulfilled, without which the act cannot be classified as a criminal offence, they are as follows:

  1. Harm,
  2. A wrongdoing,
  3. Public element.

Thus, the Hon’ble Supreme Court, in its judgement, rightly pointed out that such a law is highly discriminatory and does not go hand in hand with modern times and thus, declared it to be unconstitutional. After this landmark judgement, adultery is now only used as one of the grounds for seeking divorce and a person engaging in sexual activity with a person other than his/her spouse will not be punished.

This recent landmark judgement given by the Apex Court sheds light on the applicability of adultery laws and highlights the need for a clear nexus between an adulterous act and the right to privacy. With this judgement, even though adultery is now decriminalised, it is to date considered a moral wrong and a ground to seek divorce. The new laws, if any are to be enacted, must ensure that an individual’s personal choice and private space are respected.

From the above information, we can certainly conclude the following points:

What was struck down?

The Hon’ble Supreme Court struck down the archaic provision of the IPC- Section 497, that considered adultery an offence.

What was the issue?

The main problem with the Section was that it treated women as victims of an offence and like the property of their husbands. As per Section 497, it was not an offence if a man engaged in sexual relations with a woman after obtaining consent from her husband.

What happened after the judgement?

The judgement decriminalised adultery. After this judgement was passed, adultery was one of the grounds for divorce but no longer a criminal offence that attracted a punishment of up to 5 years of imprisonment.

What was the problem with the Government?

In the affidavit before the Apex Court, it was said that it would be against the sanctity of marriage to dilute the offence of adultery.

What should one keep in mind while following this judgement? Or what is that one thing an individual or a lawyer or a law student must take note of when it comes to reading such a case?

Even though Section 497 is no longer considered an offence per se, if any aggrieved spouse commits suicide because of adultery, then such an act will be treated as abatement to suicide and the person may be punished for committing such a crime.

Last but not least, please remember, “adultery may take you to court, not to jail”. 

Hope this article has helped you understand the basic details of the landmark judgment. Happy reading! 🙂

What was the landmark case of Joseph Shine v. Union of India all about?

The landmark case of Joseph Shine v. Union of India challenged the constitutional validity of Section 497 of the IPC, read with Section 198(2) of the CrPC. The petitioner (Joseph Shine) and his lawyer argued that such a law was against the fundamental rights that are guaranteed to all the citizens of India, like the Right to Equality and Privacy.

What was the decision of the Apex Court in the famous Joseph Shine case?

The Apex Court in this landmark case struck down Section 497, claiming that it was unconstitutional. The Court opined that such a Section was biased and treated women as objects and wives as the property of their husbands, thus infringing the Right to equality.

Why did the Hon’ble Supreme Court strike down Section 497?

The Apex Court’s Bench considered Section 497 to be unconstitutional, arbitrary and biassed as it only penalised men for engaging in sexual activities outside the purview of marriage and not women; in fact, it stated that if the husband gives his assent to his wife to engage in sexual activity with another man, then it is not a crime. All these matters infringed Articles 14, 15 and 21 of the Constitution of India. 

Did the discrimination against adultery affect Indian society?

The landmark judgement declared that adultery was no longer an offence, thus recognising the right to equality and privacy equally for both men and women. This marks a significant shift towards recognising individual autonomy in personal relationships. 

Did the discrimination based on adultery have any impact on laws related to marital relations?

Even though the judgement decriminalised adultery, it did not have any explicit impact on laws related to marriage or divorce directly. However, such a move might have influenced matrimonial cases by changing societal perceptions of engaging in extramarital affairs as a crime.

Is Section 497 of the Indian Penal Code cancelled?

Yes, the Hon’ble Supreme Court in the landmark case of Joseph Shine v. Union of India cancelled or struck down Section 497 and decriminalised adultery.

Before Section 497 was struck down, what was the punishment for committing adultery?

Before Section 497 was struck down, adultery was a criminal offence and attracted a punishment of imprisonment of up to 5 years, a fine, and at times, both.

Was the Joseph Shine judgement criticised or opposed by anyone?

There were several debates on whether decriminalising adultery would weaken the sanctity of marriage and family values. Some individuals opined that such a move may have adverse effects on matrimonial harmony. The one in favour of such a judgement states that this move strengthened the rights of an individual.

Are there any new laws enacted to replace Section 497 after it was decriminalised in 2018?

No, after the law that contended adultery was an offence was struck down, no new legislation has been enacted. However, the decriminalisation led to adultery being considered a civil matter (and one of the grounds to seek divorce) rather than a criminal wrong.

Was there a global impact caused by the judgement?

Yes, the judgement gained international attention and was seen as a stepping stone towards recognising the rights of an individual in personal matters. It contributed to discussions on similar laws in other countries and their alignment with human rights principles.

What were the major arguments against Section 497 by the petitioner?

The counsel for the petitioner was of the notion that Section 497 violated several aspects of fundamental rights (Articles 14, 15 and 21) and that it was an old law that was enacted when there was no Constitution, which has no relevance in the modern era.

What were the major arguments in support of Section 497 by the respondent?

The counsel for the respondent stated that Section 497 is an offence that may even break the institution of marriage, which is why such an act has to be penalised. The counsel further contended that adultery is morally outrageous and that all the perpetrators committing such a wrong should be prosecuted. The council also affirmed that Article 21 of the Constitution was not an absolute right and that there should be reasonable restrictions imposed, especially in cases where public interest is at stake.

What was the significance of passing such a judgement?

This landmark judgement strengthened the aspect of personal autonomy and privacy rights, thus reaching the inference that the state has no right to interfere in an individual’s personal life or relationships unless it is a civil dispute.

Can I sue my wife for committing adultery in India?

In 2018, the law that considered adultery an offence was decriminalised, and thus, adultery is no longer an offence. Which is why a spouse cannot sue or file a complaint against his/her spouse for committing adultery. However, he/she can claim it for divorce, as it is still one of the grounds for seeking divorce and a civil wrong thereof.

Can I divorce my spouse for committing adultery?

Yes, one can file for divorce in case his/her spouse has committed adultery, as it is one of the grounds for seeking divorce and a civil wrong.

Did the discrimination in Section 497 lead to an increase in extramarital affairs?

There is no straight-jacket way to answer this question nor is there any survey conducted that demonstrated such an upsurge. Decriminalisation of such a Section or activity recognised individual autonomy and equality rather than promoting extramarital affairs.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3874400


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