Case: Joseph Shine vs Union of India
Court: In the Supreme Court of India (Criminal Original) Jurisdiction
Case No.: Writ petition (criminal) no. 194 of 2017
Petitioner: Joseph Shine
Respondent: Union of India
Date of Judgement: July 27th, 2018
Bench: Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman.
The concept of adultery is prevalent throughout the history of the world, it is present in many cultures and considered unacceptable on moral grounds as well as legal grounds.
In some countries, it is considered a criminal offense with punishment as serious as a death sentence. In India adultery was punishable under this offense only when a married man had sexual relations with the wife of a married person by section 497 of the Indian Penal Code. On 27th September 2018, this 158-year law was abolished referring it unconstitutional, since it “treats a husband as the sole master.”
Although it still remains a reason for divorce under personal laws and still considered civil wrongdoing. In the historical judgment, adultery was unanimously decriminalized by the Supreme Court through abolishing Section 497 of the Indian Penal Code, 1860.
Facts of the Case:
- In this case Joseph Shine vs Union of India, Joseph Shine is a Keralite businessman and hotelier in Italy. He filed a Public Interest Litigation in the Supreme Court under Article 32 of the Constitution of India challenging the validity of section 497 as the section inadvertently considers women as property of their husbands.
- The primary basis behind this petition was to protect Indian men from being penalized and victimized in the grounds of extramarital relationships intentionally for revenge. The petitioner’s close friend was forced to commit suicide after a female colleague accused him of the rape charges intentionally. Furthermore, section 497 is a flagrant violation of gender equality and male chauvinism. The traditional framework has become obsolete in modern society and needed a transformation that suits the gender egalitarianism.
- Executive Director of CLPR, Advocate Jayna Kothari, represented the intervener ‘Vimochana’. She argued that section 497 is in violation of the right to privacy, which is an important aspect of Article 21 in accordance with the Supreme Court’s opinion in the Puttaswamy judgment.
- In the controversial section of IPC, the gender neutrality is absent as it punishes only the husband (man), not the wife (woman). There exists obvious discrimination between men and women.
- The language used in section 497 the offense of adultery is no longer valid if it happens under the consent of the husband. Which is a blatant insult to the female gender as the wife is being considered as her husband’s property?
- Taking into account these two issues, section 497 is violating Articles 14, 14, and 21 of the constitution and therefore should be declared unconstitutional .
- Section 497: Adultery was punishable by imprisonment for a term up to five years. And it was applicable to a man only, women were exempted. It did not provide any remedy if the case was between a married man with an unmarried woman.
- Article 14: This assures that the State shall not deny equality before the law and provides equal protection of the laws to any person within the territory of India.
- Article 15: This forbids the State from discriminating against any of its residents on grounds of race, religion, caste, gender, or place of birth.
- Section 198(2) CrPC: Which specifies how a complaint to be lodged for a crime under section 497. It specified that for the offense of adultery only the husband may lodge a complaint.
- Article 32: This gives the right to move the Supreme Court for the enforcement of the rights.
- Petitioner: Joseph Shine
- Respondent: Union of India
- Intervenor : Vimochana (PLD)
- Petitioner: Kaleeswaram Raj, M.S. Suvidutt (Advocate on Record)
- Respondent: K.K. Venugopal, B.V.Balaram Das (AoR)
- Intervenor: Meenakshi Arora, Jayna Kothari, Anindita Pujari (AoR), Liz Mathew (AoR)
On 27th September 2018, a five-judge Bench unanimously did away with Section 497 of the Indian Penal Code (IPC) on the grounds that it violates Articles 14, 15, and 21 of the Constitution.
The Bench ruled against its judgments in Sowmithri Vishnu, Vishnu Revathi, and Y Abdul Aziz. These judgments had defended Section 497 as constitutionally valid. The Bench declared four separate but essentially identical opinions. Chief Justice Dipak Misra wrote an opinion on behalf of Justice AM Khanwilkar and himself. Justice Rohinton Nariman, Justice DY Chandrachud, and Justice Indu Malhotra provided concurring opinions.
Chief Justice stated that Section 497 discriminates against women by treating them with inequality and indignity. He asserted that the legal subordination of one gender to another is immoral and emphasized that the Court has to provide for constitutionally protected liberties.
Yusuf Abdul Aziz vs State of Bombay
The appellant was charged for adultery under section 497 and pronounced guilty. In the Supreme court, the appellant challenged that section 497 as constitutionally invalid on the ground that in an act of adultery, the consenting woman is equally culpable.
But the court argued that Article 15 (3) of the constitution provides special provisions for women and children. Thus the appeal to dismiss Section 497 was held to be unconstitutional.
Sowmithri Vishnu vs Union of India
In this case, the petitioner’s husband filed a case against a man for having an adulterous relationship with his wife. The petitioner contended that Article 497 does not provide the right to sue the adulterous husband, instead the law provides an opportunity for the male counterpart to have extramarital relationships.
The court disagreed with the argument that this law gives licenses to married men to adultery but observed that women could not be punished as they are considered vulnerable. Thus the court propounded that women cannot be blamed for an adulterous relationship because it is the man who is generally considered as the seducer and the woman as the victim. So, section 497 remained valid once again.
Revathi vs Union of India and ors.
In this case, the petitioner argued that the wife cannot be forbidden to prosecute her husband. The court counter-argued just as the law does not permit the husband of the disloyal wife to prosecute his wife, similarly, the law does not permit the wife to prosecute the offending husband. So, the right to equality under Article 14 is not violated and thus, section 497 stands valid.
The central point of this case is that the controversial provision of the IPC is rather outdated. The concepts that only the husband can be the seducer and the wife is to remain subordinate to the husband are irrelevant in modern times. This concept clearly contradicts Article 14 which provides the right to equality and prevents class legislation.
Article 15(3) provides a beneficial provision for women and children, but when it comes to adultery, which is about a consensual sexual relationship between two adults outside their conjugal life. So, it is considered outside the purview of Article 15(3). The petitioner also contended that the aforementioned section also infringes on the right to privacy, which provides for the right to life. 
The argument to sustain section 497 of the IPC was that adultery harms the right of married couples to have a peaceful conjugal life. Again, the right to privacy is not an absolute right and is shaped up to decency, morality, and ethics with some exceptions.
The court’s intention to sustain the spirit of the constitution by eradicating gender inequality is very noble. Gender inequality is a major point of dispute in the matter of adultery. But at the same time to uphold the concept of “family as a very important social institution, which is an integral part of our society“.
Adultery is not only socially unaccepted in India but also a major reason to collapse a family. So, adultery no only affects the man and the women involved, but their children and the whole family suffers for it. It also harms the reputation and character of those families involved. So adultery is obviously moral wrong. And a moral wrong should not be a legal right. Also, the damage done to the victim spouse by their adulterous partner cannot be restored by divorce only.
So, there is a need for penal laws for causing damage to their partner, if not for adultery itself.
The goal of achieving gender equality could have been achieved by amending the provisions related to adultery or the court could have provided equal rights for both men and women to prosecute their adulterous spouses. Also, the court could have provided for the provision of punishment to both men and women. Also, the language of section 497 could have been modified to give a better and clear idea of gender neutrality, which is being praised as a landmark victory for women’s rights and the evolution of law.
- “Women Are Not ‘Chattel,’ Says India’s Supreme Court In Striking Down Adultery Law”. NPR.org. Retrieved 27 September 2018.
- Disha Chaudhary, Joseph Shine v/s Union of India, SUPREME COURT OBSERVER (April 13, 2020, 10:14 A.M.), https://www.scobserver.in/beyond-the-court/cases-that-shaped-india-in-2018-5-decriminalisation-of-adultery
- Jismin Jose, Joseph Shine v/s Union of India, LAW TIMES JOURNAL (September 2, 2020, 10:23 P.M.), http://lawtimesjournal.in/joseph-shine-vs-union-of-india/
- Eshan Pandit, Article 14- An Analysis, ACADEMIA EDU (September 3, 2020, 8:24 A.M.), https://www.academia.edu/8025396/Article-14_of_Indian_constitution_a_analysis_-Eshan_pandit_BA_hons_LLB_hons_4th_semester
 (1954 AIR 321)
 (1985 AIR 1618)
 (1988 AIR 835)
AUTHOR: YEASMIN BISWAS | COLLEGE: KINGSTON LAW COLLEGE
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