Decriminalising Adultery: Joseph Shine v Union of India



Joseph Shine versus Union of India is a landmark case in the history of India. It has decriminalised the practice of adultery in India. Before this case, adultery was based on the notion of patriarchy and male chauvinism. In India, there was no right to a woman whose husband indulged in adultery. It has been considered violative of our constitutional principles like equality, non-discrimination, the right to live with dignity, et cetera. This judgment created history by striking down the 158-year-old law, which has lost its relevance with time.


Joseph Shine filed a writ petition under Article 32 of the Indian Constitution before the Supreme Court. It challenged the constitutionality of Section 497 of the Indian Penal Code read with Section 198 of the Criminal Procedural Code being violative of Articles 14, 15 and 21 of the Indian Constitution. His friend in Kerala had committed suicide after a co-worker filed a false suit of rape against him. It was at first a PIL filed against the practice of adultery. The Petitioner claimed the provision for adultery to be arbitrary and discriminatory against men. They said that it had become a tool to seek vengeance.

Moreover, it is a tool for the husband to enslave his wife. The Petitioner claimed that such a law demolishes the dignity of a woman. The question regarding the locus standi of the Petitioner was also raised before the Court as he was not an Indian citizen. However, the Court allowed the Petitioner.


There were mainly three issues that were raised before the Court in this case. One was whether Section 497 of the IPC is unconstitutional on the grounds that it is violative of Article 14, 15 and 21 of the Constitution of India and whether Section 198(2) of the CrPC, which lays down the procedure for prosecution under Chapter XX of the IPC is also unconstitutional. The last issue was whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-determination.


The Petitioner contended that the provision criminalises adultery based on gender alone, with no "rational nexus." The consent of the wife stands immaterial, and hence it is violative of Article 14. They also contended that this provision is based on the notion that a woman is the husband's property. It further says that if the husband gives consent, then adultery is not committed. The Petitioner believed that the provision is discriminatory based on gender. As it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination, it is violative of Article 21 too.


The Respondents argued that the practice of adultery is an offence that breaks family relations, and something shall be done in order to protect the institution of marriage. They claim that it affects society. They further contended that it is an offence committed by an outsider having full knowledge to destroy the sanctity of marriage. They argued that it is discriminatory by the provisions laid down in Article 15(3), which gives the state the right to make special laws for women and children.


The Supreme Court held Section 497 of the IPC to be violative of Articles 14, 15 and 21 of the Indian Constitution, making it unconstitutional. Similarly, Section 198(2) of the CrPC, which lays down the procedure, was also held to be unconstitutional to the extent related to Section 497 of the IPC. The Court referred to the cases of EP Royappa v State of Tamil Nadu (1974) 4 SCC 3 and Shayara Bano v Union of India (2017) 9 SCC 1, where it was said that such classification is arbitrary and discriminatory. It holds no relevance today as women now have their own identities and stand equal to men in all aspects of life. Thus, the provision for adultery violates Article 14 of the Indian Constitution. Concerning Article 15, the Supreme Court cited the Government of Andhra Pradesh v PB Vijayakumar (1995) 4 SCC 520, which said that the provision is violative of Article 15(1) is discriminatory solely on the grounds of gender. The Court further held it to be violative of Article 21 as the provision related to adultery says that adultery is allowed in the presence of the husband's consent which shows that a man has control over a woman's choices, taking away her individuality. Justice Chandrachud observed that this law only redresses the harm caused to the husband.


At present, there is no law on adultery in India. However, it is still a ground for divorce under Hindu Laws.


There were specific recommendations that were made for the provision of adultery. The 42nd Law Commission Report recommended including adulterous women liable for prosecution and reducing the punishment by three years. Subsequently, in the 152nd report, the introduction of equality between sexes in the provisions for adultery was recommended. Both these recommendations were turned down. Lastly, in 2003, the Malimath Committee on Reforms of the Criminal Justice System was formed. It recommended amending the provision as 'whosoever has sexual intercourse with a spouse of any other is guilty of adultery.' It stands pending consideration.


This landmark judgment holding Section 497 of IPC unconstitutional received widespread criticism. People alleged that this move of the Supreme Court has now paved the way for the people to commit adultery and get away with it quickly. In the author's opinion, instead of decriminalising the practice of adultery and striking Section 497 of IPC down, it should have been made an offence for both genders.


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