Author: Amarja Sandeep Narwadkar.
College: Bharati Vidhyapeeth New Law College,Pune.
LinkedIn link: https://www.linkedin.com/in/amarja-narwadkar-676a90426?utm_source=share_via&utm_content=profile&utm_medium=member_ios.
Abstract:
Whose Morality? Whose Marriage? The decision in Joshep Shine v. Union of India (2018) raises a fundamental constitutional question: should the state have power to enforce a particular understanding of mortality within marriage? In this landmark judgement, the constitutional bench of the Supreme Court unanimously declared section 497 of IPC, dealing with the offence of adultery, as unconstitutional.
This article examines the judgement with special reference to Articles 14,15 and 21 of the constitution and the principles of equality, dignity, privacy and personal autonomy.
This article further explores how Joseph Shine changed the legal understanding of women within marriage by recognising them as independent individuals rather than as subjects under their husbands. The article concludes that the judgement represents an important step towards gender equality and a more constitutional understanding of marriage and individual freedom.
Introduction:
Whose morality should the law protect, and whose marriage should the state preserve? These questions lie at the heart of Joseph Shine v. Union of India, a landmark decision that transformed the constitutional understanding of adultery,marriage and women’s autonomy in India.
The case was not simply about whether adultery should remain a criminal offence. It was about something deeper: whether a law rooted in a patriarchal understanding of marriage could survive in a constitution founded upon equality, dignity and individual liberty.
Before 2018, Section 497 of the Indian Penal Code,1860 made adultery a criminal offence. However, the provision treated men and women differently. A man could be punished for having sexual relations with a married woman without the consent fo her husband,while the woman herself could not be punished for the same act.The provision therefore reflected an unequal understanding of marriage and raised serious questions about women’s legal status, equality and freedom of choice.
This unequal structure came under constitutional scrutiny in Joseph Shine v. Union of India. In 2018, a five- judge constitution bench unanimously declared section 497unconstitutional and struck down the corresponding procedural provision under Section 198 of the code of criminal procedure. The court’s reasoning was grounded in Articles 14,15 and 21 focused on equality,dignity, privacy, autonomy and the rejection of gender stereotypes.
This article examines that conflict through questions “Whose Morality? Whose Marriage?’’ It analyses the patriarchal foundations of the former adultery law, the court’s understanding of equality and autonomy, and the implications of recognising married women as independent constitutional persons. It argues that the legacy of Joseph Shine lies not simply in removing adultery from the sphere of criminal law, but in affirming that marriage cannot extinguish individuals, constitutional identity, dignity, and autonomy.
Keywords:
Adultery, Constitutional Morality, Gender Equality, Marital rights, Dignity
Section 497, Article 21.
Legal Jargon:
Section 497 of the Indian Penal Code, 1860, criminalised adultery through a gender-discriminatory statutory framework that subjected men and women to unequal legal treatment. The provision imposed criminal liability upon a man who engaged in sexual relations with a married woman without the consent or connivance of her husband, while exempting the woman from criminal liability. This statutory classification reflected a patriarchal conception of marriage, wherein the wife was not recognised as an autonomous legal agent but was effectively placed within the protective and proprietary framework of her husband’s marital rights. Consequently, the provision raised substantial questions concerning Article 14’s guarantee of equality, Article 15’s prohibition of discrimination on the ground of sex, and Article 21’s protection of dignity, privacy and personal autonomy.
Legal Position and Analysis:
The Supreme Court’s judgment in Joseph Shine v. Union of India changed the legal position of adultery in India. Before the judgment, Section 497 IPC treated adultery as a criminal offence. In 2018, the Supreme Court struck down Section 497 and the related Section 198 CrPC as unconstitutional because they violated Articles 14, 15(1) and 21 of the Constitution.
The controversy, however, was never simply about whether adultery should be punished. At its core was a more fundamental question: what kind of marriage does the law recognise?Section 497 reflected a conception of marriage in which a married woman’s sexuality was connected to her husband’s control. The husband’s consent could determine whether the sexual relationship constituted an offence, while the wife herself had no equivalent right to prosecute her husband. The Supreme Court found this structure incompatible with equality and dignity.
A significant aspect of the judgment was the distinction between social morality and constitutional morality. Although adultery may be considered morally wrong by society, the Court rejected the idea that every morally disapproved act must necessarily be criminalised. Criminal law must satisfy constitutional standards of equality, dignity and liberty. Thus, the Court held that continuing to treat adultery as a criminal offence would be a regressive approach inconsistent with transformative constitutionalism.
The decision is particularly significant for women because it rejected the idea that marriage makes a woman subordinate to her husband. A woman continues to have her own constitutional identity and dignity even after marriage.
At the same time, Joseph Shine did not make adultery completely irrelevant in law. In 2023, the Supreme Court clarified that adultery can still be a moral or civil wrong and can remain a ground for dissolution of marriage.
Therefore, the significance of Joseph Shine lies not merely in removing an outdated criminal provision, but in challenging the patriarchal understanding of marriage embedded within it. The judgment raises a deeper constitutional question: should the State enforce a particular conception of marital morality through criminal law when doing so compromises equality, dignity and individual autonomy? The Court’s answer was that constitutional rights cannot be subordinated simply because traditional morality demands it.
Case Laws:
1. Shayara Bano v. Union of India (2017)
Shayara Bano v. Union of India concerned the validity of the practice of instant triple talaq. The case raised important questions regarding gender justice, equality and the constitutional limits of personal law. The judgment is particularly significant for the doctrine of manifest arbitrariness under Article 14. The Court’s reasoning demonstrated that a practice or legal rule cannot be protected from constitutional scrutiny merely because it has existed for a long time.
This case is relevant to Joseph Shine because Section 497 IPC was also examined from the perspective of equality and arbitrariness. The Supreme Court used the principles developed in Shayara Bano while analysing whether the old adultery law could continue to exist in a constitutional democracy.
2. Navtej Singh Johar v. Union of India (2018)
In Navtej Singh Johar v. Union of India, the Supreme Court reconsidered the constitutional validity of Section 377 IPC insofar as it criminalised consensual sexual conduct between adults of the same sex. The Court’s reasoning was founded upon the constitutional guarantees of equality, dignity, privacy and individual autonomy.
The judgment’s emphasis on constitutional morality provides an important analytical framework for Joseph Shine. Constitutional morality requires the State to respect the fundamental rights guaranteed by the Constitution even where those rights conflict with prevailing social morality. In Joseph Shine, this approach enabled the Court to distinguish between the moral disapproval of adultery and the constitutional justification required to make adultery a criminal offence.
Conclusion:
The real significance of Joseph Shine is not that adultery ceased to be a crime; it is that the law was forced to reconsider whose morality it was protecting and whose autonomy it was restricting. Section 497 IPC was built upon a patriarchal understanding in which a woman’s marital identity was closely connected to her husband’s rights. By striking it down, the Supreme Court rejected the idea that marriage gives one spouse control over the legal identity or autonomy of another.
The decision also established an important distinction between social morality and constitutional morality. While adultery may continue to be considered morally or civilly wrong, moral disapproval alone cannot justify criminal punishment when the law violates equality, dignity and individual autonomy. The 2023 clarification further confirms that decriminalisation does not amount to approval of adultery, but rather limits the State’s power to impose criminal sanctions.
Ultimately, the legacy of Joseph Shine extends beyond adultery. It represents a constitutional movement from paternalistic protection towards substantive equality and individual autonomy. The judgment reminds us that the question is not simply whose morality society follows, but whether that morality is consistent with the values of the Constitution. In this sense, Joseph Shine makes it clear that marriage may create a relationship between individuals, but it cannot erase their identity as equal constitutional citizens.
FAQ’S :
1. What was the main issue in Joseph Shine v. Union of India?
The main issue was whether Section 497 of the Indian Penal Code, 1860, which criminalised adultery, was constitutional. The Supreme Court examined the provision in light of Articles 14, 15 and 21 of the Constitution and ultimately declared it unconstitutional.
2. Why did the Supreme Court strike down the adultery law?
The Court found that Section 497 was based on discriminatory and patriarchal assumptions about marriage. It treated women unequally and did not recognise them as independent individuals with equal dignity and autonomy. The Court held that such a law could not survive constitutional scrutiny.
3. Does the Joseph Shine judgment mean that adultery is now legally acceptable?
No. The judgment only removed adultery as a criminal offence. Adultery may still have civil or matrimonial consequences and can remain a ground for divorce. Therefore, decriminalisation should not be understood as judicial approval of adultery.
4. What is the constitutional significance of the Joseph Shinejudgment?
The judgment reinforced the principles of equality, dignity, privacy and individual autonomy. It also strengthened the distinction between social morality and constitutional morality, establishing that traditional moral beliefs cannot automatically justify criminal laws that violate fundamental rights.