Author: Ashwina Venkatramanan, School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University Chennai
INTRODUCTION:
Adultery refers to a personal breach of marital fidelity, wherein a married individual engages in consensual sexual relations with someone other than their spouse. Initially, adultery was treated as a criminal offence under Section 497 of the Indian Penal Code and was punishable by law. Only the man who had sex with another man’s wife was held liable but not the woman. From the plain meaning of Section 497, “Anyone who has sexual relations with a woman, knowing she is someone else’s wife and without her husband’s consent, is guilty of adultery—provided it doesn’t amount to rape”, it is evident that it is barbaric and discriminatory and also completely overlooks the husband’s own adultery. Even though adultery is not an ethically sound and praiseworthy act, it does not necessarily warrant criminalization as it takes away personal liberty and gender equality which the Constitution of India has committed to upholding. The analysis of the landmark case of Joseph Shine v. Union of India therefore sheds light on the background and rationale behind the decriminalization of Section 497 of the IPC and also explores how it reaffirmed the constitutional values of equality, liberty and autonomy.
FACTS OF THE CASE:
Joseph Shine, a non-resident of Kerala, filed a writ petition before the Supreme Court challenging the constitutionality of Section 497 of the IPC and Section 198(2) of the Criminal Procedure Code, following the tragic suicide of his friend who had been falsely accused of rape by a female colleague. He questioned the gender bias and inequality inherent in the provision and sought the court’s intervention on the matter.
ISSUES RAISED:
Whether Section 497 is an excessive and disproportionate provision violative of Article 14 that needs to be decriminalized?
Whether section 497 violates Article 15 by treating women unequally and enforces patriarchal stereotypes?
Whether Section 497 is violative of Article 21 by invading sexual privacy of the woman?
ARGUMENTS BY THE PETITIONER:
Section 497 of the IPC violates Article 14 of the Constitution of India as it creates an arbitrary classification by punishing only the man engaged in an adulterous relationship and exempts the woman from criminal liability. It portrays the woman as playing no active role on the matter, thereby treating her as the property of her husband, reinforcing patriarchal notions.
Section 497 contradicts Article 15, which prohibits gender discrimination among other grounds. Under this provision, only men can initiate prosecutions against other men for adultery. In other words, women are not allowed to file cases against their husbands under Section 497 or even seek legal remedy. It reflects gender stereotypes and chauvinism, where cheating is excused simply because the offender is a ‘man’.
However, when women commit adultery, it is said to cause grave dishonour to the family and shame to the societal values and she is condemned for it.
Article 21 is also violated as engaging in sexual intercourse is a private act between individuals and thus protected under Right to Privacy, and obtaining information about it is illegal.
Moreover, Section 497 also denies a woman her right to sexual autonomy by treating her as a passive subject rather than an individual capable of making independent choices thereby violating her fundamental right to equality and dignity.
Adultery is a misnomer in the sense it is not an offence if the husband consents to it and thereby undermines the objective of the penal provision.
ARGUMENTS BY THE DEFENDANT:
The respondents contended that adultery is a social evil that threatens the stability of family relations and Section 497 acts as a necessary deterrent. They argued that the provision protects the sanctity of marriage by discouraging extramarital affairs, which not only harm the marital bond but also negatively impact children by depriving them of a stable and secure environment.
If such a provision is not in place, there will be no effective barriers against the moral chaos that adultery will create in the absence of fear of penal consequences. It will therefore give the third parties an easier opportunity to intrude and disrupt marital relations.
It was also contended that the ‘Right to Privacy’ cannot be treated as an absolute defence when weighed against public morality and social interest. In response to the contention that Section 497 is violative of Article 15(1), the respondents submitted that Article 15(3) allows the state to make special provisions for women and children.
In conclusion, the respondents requested that the provision should not be struck down as it acts as a guardian of the institution of marriage and should only remove those parts which are deemed to be inconsistent with Constitution.
COURT OBSERVATIONS:
ISSUE 1: ARBITARINESS OVERLOAD
Article 14 and Article 15 act as safeguards against legislation that suffers from discrimination and arbitrariness. Article 14 prohibits class legislation but permits reasonable classification. Section 497 of the IPC creates two distinctive categories:
The first classification is based on who has the right to initiate prosecution. It is only the husband of the married woman who engages in adultery who is considered to be an aggrieved person and is given the right to prosecute for the offence of adultery. On the other hand, a married woman, whose husband has an extramarital affair, has no right to prosecute either her husband or his paramour.
The second classification is based on who can be punished. It is only the man involved in the extramarital relationship who can be punished for committing adultery and not the woman, even though the relationship is consensual; the woman is not even considered an “abettor” to the offence.
The discriminatory provisions in Section 497 have to be considered in reference to the classifications made. The classification must have some rational basis or a nexus with the object sought to be achieved. Such classification is now inapplicable and fails to withstand the test of Article 14; thus, it is prima facie discriminatory against women and, hence, is liable to be struck down on this ground alone.
A legal provision that denies women of the right to prosecute cannot be considered to be gender-neutral. The discrimination is also evident in the fact that women cannot even be punished for the offence. Under Section 497, the wife of the adulterous man cannot prosecute her husband for marital infidelity. This provision is, therefore, prima facie discriminatory against women and violative of Article 14.
Section 497 denies substantive equality, as it perpetuates the subordinate status ascribed to women and society. Section 497, thereby, violates Article 14 of the Constitution.
ISSUE 2: VIOLATION OF ARTICLE 15
Article 15(3) allows the state to make beneficial legislations for women and children. The term ‘benefit’ is used in the sense it must uplift women and give them access to rights and opportunities for them to grow. However, by exempting women from prosecution under Section 497 despite their equal participation in the ‘act’, cannot be said to be protecting them it instead treats them as individuals with no agency, mere puppets in the hands of their husbands, who are expected to take action on their behalf for any disobedience.
ISSUE 3: VIOLATION OF ARTICLE 21
The question of a woman’s dignity, autonomy, choice, and identity is pivotal to the interpretation of Article 21 of the Constitution, which guarantees the right to life and personal liberty. A significant reference in this context is the K. S. Puttaswamy v. Union of India judgment, where the Supreme Court declared that the right to privacy is an intrinsic part of Article 21. The judgment emphasized that individual dignity is inseparable from personal liberty and privacy.
Over time, the Court has recognized the equal constitutional status of women and affirmed their right to dignity. Section 497 of the Indian Penal Code, however, was found to undermine this dignity. It did so by reinforcing gender stereotypes and treating a woman’s choices as subject to the consent or connivance of her husband. The provision effectively subordinated a woman’s identity and autonomy to her husband’s will, reducing her status to that of a dependent or possession. The Court strongly rejected this archaic view, stating that neither a father nor a husband can hold monarchical control over a woman.
JUDGMENT AND REASONING:
The case was initially heard by a three-judge Bench presided over by Chief Justice Dipak Misra.
The three-judge bench then referred the matter to a five-judge Constitution Bench and noted that at first glance, a reading of Section 497 IPC indicates that it treats the wife solely as a victim, thereby granting her immunity. Notably, even though both individuals participate in the act, only one faces criminal liability while the other is exonerated. Typically, criminal law follows the principle of gender neutrality, which appears to be lacking in this provision.
On September 27, 2018, Section 497 IPC and Section 198 CrPC (as it applied to adultery) was unanimously struck down, declaring both provisions unconstitutional for violating Articles 14, 15(1), and 21 of the Constitution. The Court emphasized that criminal law must align with constitutional morality, not outdated societal constructs. The law on adultery, as framed in Section 497, was found to enforce a model of marriage where one partner (the wife) was expected to surrender her sexual autonomy to the other. This was clearly inconsistent with the constitutional guarantees of equality, dignity, and personal liberty.
At a basic level, Section 497 was flawed because it punished only the man involved in an adulterous relationship, while exempting the woman, even if she had equal agency. It treated the wife as a passive victim, lacking legal accountability. The provision ignored the principle of gender neutrality in criminal law and relied on societal presumptions about a woman’s role. The Court also held that Section 497 was arbitrary, as it lacked a clear legal standard for criminalizing consensual sexual activity between adults. It reinforced the subordinate status of women in both marriage and society.
In addition, Section 198(2) CrPC was declared unconstitutional to the extent that it applied to adultery, as it allowed only the husband (or someone on his behalf) to file a complaint, excluding the wife entirely from seeking legal redress.
RELEVANT JUDGEMENTS:
1.YUSUF ABDUL AZIZ V. STATE OF BOMBAY (1954):
Yusuf Abdul Aziz was a foreign national who was faced with charges of adultery under Section 497 of the IPC. He filed a petition challenging the validity of the said section while his case was still pending before the Presidency Magistrate on the grounds that it violated Article 14 and 15 by prosecuting only men for the offence. The Court upheld the validity of Section 497 on the ground that it was enacted to reflect prevailing societal norms and to protect women. As for Yusuf, being a foreign national, had no access to the fundamental rights guaranteed under Article 15(1).
2. SOWMITHRI VISHNU V. UNION OF INDIA (1985):
The appellant had originally filed for divorce against her husband; still it was dismissed after the Court found, she had, in fact deserted her husband. Following this, the husband filed his own divorce petition the grounds of infidelity and desertion. In response, Sowmithri challenged the validity of Section 497 of the IPC claiming that it was illegal and discriminatory to women by allowing only the husbands for filing complaint for adultery. The Supreme Court dismissed the writ petition, upholding the validity of Section 497. The court reasoned that the provision, by its very description, could only be committed by a man, and the petitioner’s argument basically called for a redrafting of the law to include women as offenders.
3. V. REVATHI V UNION OF INDIA (1988):
This case serves as an example where the Supreme Court upheld the constitutional validity of Section 497 of the IPC. The Court pointed out that this provision punishes only the ‘other person’ with whom adultery was committed, and not either spouse. Thus, it was viewed as being ‘favourable’ to women, portraying them as victims rather than offenders.
4. W. KALYANI V. STATE (2012):
The constitutionality of Section 497 did not arise in this case but it pointed out the fact that the complainant is a woman renders her immune from prosecution and she cannot be proceeded against for that offense.
CONCLUSION
At the outset, the landmark judgment of Joseph Shine v. Union of India highlights the significance of barring misapplications of provisions such as Section 497 IPC. The Supreme Court’s decision to strike down this section reflects a progressive shift towards recognizing individual autonomy, equality, and dignity within the institution of marriage. The Court correctly observed that when a marriage breaks down, the applicable course of action lies in mutual reconciliation or seeking divorce through legal means. Infidelity, being a private matter, cannot be effectively addressed through penal sanction. More importantly, prosecuting only a third party, while exempting the partner, fails to address the underlying issues in the relationship and rather worsens the conflict. The judgment reaffirms that criminal law must not be used as a tool to enforce personal morality, particularly when it undermines constitutional values.
FAQS
What are the negative and unforeseen consequences since the decriminalization of adultery?
Adultery can no longer be used as a criminal threat in family matters. This has impacted certain vulnerable spouses (especially women) who previously used it as bargaining power in divorce or maintenance proceedings. The moral bond of marriage has eroded because of the increase in infidelity.
Whether adultery can be reinserted in a manner that upholds the constitutional values?
If reinsertion is considered, it would have to meet constitutional standards, that is, the law must be gender-neutral, and it should recognize individual autonomy. Alternatively, adultery could be treated as a civil wrong rather than a criminal offence.
What were the recommendations of the Law Commission on adultery?
The 42nd Law Commission Report recommended making adultery gender-neutral, so that either spouse could be prosecuted and reducing the punishment from 5 years to 2 years but did not recommend repeal, only reform of Section 497. The 152nd Law Commission Report recommended that the penal provision must reflect the societal notions and also emphasized gender equality.
REFERENCES:
1. Ayushi Arya, Case Comment: Joseph Shine v. Union of India, SOM Law College, 2021. Paper-3.pdf
2. Shweta and Tauseef Ahmad, Joseph Shine v. Union of India – A Comment, National Law School Journal, Vol. 14, Issue 1, Article 18, 1 January 2018. Joseph Shine V. Union Of India – A Comment
3. Decriminalisation of Adultery – Supreme Court Observer