JOSEPH SHINE V.

UNION OF INDIA
A five-judge constitutional bench of the apex court unanimously held Section 497 of IPC and
Section 198 of CrPC as unconstitutional. The bench comprised of the then CJI Dipak Misra,
A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra. They delivered four
separate but concurring judgement. It is interesting to look into court’s reasoning of striking
down an age old law in the following three heads:
Section 497 is arbitrary and violates article 14 and 15
Dictionary meaning of adultery renders a married person liable for the act of adultery if he or
she has a sexual intercourse with a person out of their wedlock. Whereas, adultery as defined
under section 497 is committed only when a man has sexual intercourse with a married
women without his husband’s consent or connivance and makes such a man criminally liable
for committing adultery. It exempts the women even from the liability of being an abettor.
This provision indicates that if the consent of the husband is taken or, even worse, the
husband connives for the act then the act does not construe as adultery. It also does not take
the act under its cognizance as adultery if a married man has a sexual intercourse with a
widow or an unmarried women. Section 198 (2) permits only the husband to file a complaint
or, in his absence, any other person who was taking care of the women while the offence was
committed. Thus it treats the husband of the women as an aggrieved person, but in any case,
the wife of the adulterer is not considered as an aggrieved person.
The definition of adultery and aggrieved person is manifestly arbitrary and lacks rationale
because on one hand it seems to save a woman by not making her liable as an abettor but on
the other hand it does not enable the wife of the adulterer to file a complaint. It may facially
appear beneficial for women but it stems out from the idea of romantic paternalism where
women are considered as property of their husband. And this is the reason why a married
man is not considered to commit adultery when he has sexual intercourse with an unmarried
women or a widow because that women would not be the property of another man. Section
497 in its effort to protect the sanctity of marriage have ended up treating a husband and wife
as unequal partners. It lays out that a women is but a wife of her spouse. It clearly denies
substantive equality by not treating women as equal partners in a marriage and thus the Court
held that since this entire provision discriminates on the basis of only sex which it violates
article 14 and 15.
Husband is not the master (violation of article 21)
The Court has recognised conceptual equality, individual autonomy and dignity of women in
its earlier decisions but section 497 of IPC curtails the same by making invidious distinctions
based on gender stereotypes which dents the individual dignity of women. R.F. Nariman in
his concurring judgement held that the provision of adultery is archaic and outlived the
purpose for which it was instituted in the first place. It punishes only the third party male
offender which shows that what it punishes is not ‘adultery’ per se but the intrusion into a
husband’s proprietary interest in his wife. It was aimed at benefitting men by controlling their
wife’s sexual agency in order to ensure the purity in his own bloodline. This entire provision
renders the position of a wife as the property of her husband whose sexuality is under his
control because it is the husband whose consent matters; wife’s consent only makes sure that
it is not rape. Right to intimate association is a facet of right to privacy which is protected
under the Constitution but this provision treats women incapable of freely consenting to a
sexual act in a legal order. Since adultery law tantamount to objectification of woman in the
hands of their husband and denies them dignity of sexual autonomy, the Court held that it
offends article 21.
Adultery is not a criminal offence
Adultery stands on a different footing from other offences relating to marriage such as dowry,
domestic violence, non-grant of maintenance etc. Even if an equal status and right to file a
case is conferred upon a wife, the whole scenario will be an extremely private matter for the
state to interfere by penalising it because the mere fact that adultery is not socially and
morally acceptable does not mean that it should be deprived of privacy and self-
determination, especially when two individuals do so with their consent. Adultery does not
qualify to fit into the concept of crime. The law expects the partners to be loyal and maintain
fidelity but making someone criminally liable for adultery would amount to intrusion in
someone’s private sphere of matrimonial affairs. It is more likely to be a socio-moral
command. It can still be a valid ground for any civil suit including dissolution of marriage but
attaching criminal liability would amount to violate the fundamental right to privacy.
The institution of marriage cannot be saved by punishing the culprit of adultery. The dent in
the relationship after one person commits adultery cannot be undone by attaching criminal
liability to it. Any punitive or reformative discourse is unlikely to establish the commitment
between the parties. The said act may not always be the cause but sometimes result of an
unhappy marriage. And if adultery would be to criminalise then it would have to punish
indiscriminately, whose marriages have been breaking down and whose marriages are not.
And that would be manifestly arbitrary and the law will become an unwarranted one. Thus,
adultery is not a criminal offence.