Author: Yashika Pandya, Shri Vaishnav Vidyapeeth Vishwavidyalaya, Indore (M.P.)
To The Point
Adultery refers to act of a married individual consenting to sexual activity with a person other than their spouse. However, Section 497 of IPC outlined adultery in patriarchal biases. In “Joseph Shine v. Union of India”, Supreme Court invalidated the provision declaring it as unconstitutional for breaching Article 14,15 and 21, as it treated women unequally and undermined their autonomy.
Use of Legal Jargon
Section 497 depicted women as passive and devoid of sexual independence . It penalized only the man who had a sexual relation with a married woman without her husband’s consent, while exempting the woman entirely. The law also ignored situations where a husband committed adultery, offering no remedy to wife.
Petitioner Joseph Shine instituted a Public Interest Litigation under Article 32 of the Constitution, challenging the legality of “Section 497 of IPC and section 198(2) of CrPC”, arguing they were discriminatory and infringed upon fundamental rights including “Article 14 (equality before the law), Article 15 (Prohibition of discrimination on grounds of sex) ad Article 21(Right to life and personal liberty)”. He contended that provision was arbitrary and compromised woman’s dignity and autonomy.
The Proof
The constitutionality of section 497 had been challenged multiple times before Joseph Shine case. The petitioner’s counsel brought attention to the its colonial origins rendered it irrelevant in contemporary times.
It was submitted that the section contravened Article 14, which guarantees equality before law. The provision penalized only the man involved in a physical relationship with a wedded woman, exempting the woman who also willingly shared, failing the “rational nexus” test as it criminalized the adultery based on gender.
Moreover, the law reduced woman to the status of property or possession of her husband. This could be in seen in expression “without consent or connivance of that man” pointing directly to husband. If the husband permitted the affair, then no offence was committed, rendering wife’s consent meaningless.
The petitioner further asserted that the provision contravened “Article 15 which prohibits discrimination on grounds of sex”. It allowed only husbands to prosecute for adultery, while denying the same right to wives. Additionally, it penalized only men, even though the act involved both consenting parties.
The petitioner submitted that the provision infringed Article 21, as it encroached upon women’s dignity and individual autonomy. By treating women as property with no control over their bodies and relationships, the law denied them basic rights. Citing “K.S. Puttaswamy v. Union of India,” it was noted that sexual privacy was covered under right to life and liberty, and adults have discretion over their intimate choices.
Section 497 was declared as unconstitutional by the Supreme Court, saying that “Wives are not the property of their husbands and husbands are not their masters.” The court held that the provision violated Article 14 by denying women equal legal status, Article 15 by reinforcing gender discrimination, and Article 21 by subordinating a woman’s autonomy to her husband’s consent.
Abstract
“Section 497” of IPC criminalized the adultery while “section 198 (2)” of Criminal Procedure Act provided the procedure for prosecution of marital offences. However, in landmark judgment of Joesph Shine v. Union of India, the Apex Court in a collective decision invalidated section 497, declaring it as discriminatory, arbitrary and violated significant fundamental rights including “Article 14,15 and 21” under Constitution of India. The court held, though morally questionable, adultery does not amount to criminal sanction and remains only a ground for divorce. This article draws an analysis of the landmark case and its implication on gender equality, particularly rights and autonomy of married women.
Case Laws
“Yusuf Abdul Aziz v. State of Bombay (1954) SCR 930”
Section 497 was challenged as violating Article 14 and 15 by not penalizing women, even as abettors. The court upheld the provision, citing Article 15(3) which allows specific legislation for women.
“Sowmithri Visnhu v. Union of India & Anr. (1985) Sup SCC 137
It was argued that wife couldn’t prosecute the women with whom her husband has committed adultery. The court maintained that only legislature could expand the law and justified punishment as deterrent against disputing family sanctity.”
“V. Rathi v. Union of India (1988) 2 SCC 72”
The court upheld section 497 with Section 198 (2), saying it barred both spouses from prosecuting each other, punishing only the outsider disrupting the marriage. It was seen as reverse discrimination in women’s favour.
Conclusion
The Supreme court’s decision in “Joseph Shine v. Union of India” was progressive and constitutionally sound . It removed gender biased colonial law, affirming women’s dignity and autonomy. This landmark case transitioned adultery from a criminal offence to a civil wrong, redressed through divorce or judicial separation.
FAQs
Does adultery remain as a criminal offence, post Joseph Shine case judgement?
No, following the judgement, consensual sexual intercourse between two adults, married or not, is not a criminal offence.
Why was Section 497 of IPC was challenged?
It was discriminatory and violated Article 14,15 and 21. It punished only men, exempted women, and allowed only husbands to prosecute.
What was the Supreme Court ruling in Joesph Shine case?
The court struck down Section 497 as unconstitutional for violating equality, dignity, and liberty. It criticized law’s patriarchal view of women as property.
Does this mean that adultery is now legal in India?
While adultery is now not a criminal offence, but it does not mean that it is legal in India. It remains as a civil wrong and valid ground for divorce which can be enforced by both husband and wife.
