Author: Manisha. K, Christ Academy Institute of Law
Abstract
The landmark case of Joseph Shine v. Union of India (2018) marked a pivotal moment in Indian constitutional jurisprudence. It resulted in the decriminalization of adultery under Section 497 of the Indian Penal Code (IPC), a colonial-era provision that criminalized sexual relations between a man and a married woman without the consent of her husband. The Supreme Court, through this judgment, reaffirmed its commitment to individual autonomy, gender equality, and constitutional morality, thereby laying the foundation for a more progressive interpretation of personal liberties under Article 21. The judgment also emphasized that outdated and patriarchal notions of morality could no longer determine the contours of criminal law in a modern constitutional democracy. By striking down Section 497, the Court advanced the discourse on gender justice, liberty, and the evolving relationship between law and society.
To the Point
A writ petition under Article 32 of the Constitution challenged Section 497 IPC and Section 198(2) CrPC as unconstitutional in the case of Joseph Shine v. Union of India. The central issue was whether these provisions violated fundamental rights, especially Articles 14 (Right to Equality), 15 (Prohibition of discrimination), and 21 (Right to Life and Personal Liberty).
It was illegal for a man to have sex with a married woman without her husband’s permission under Section 497 IPC. The woman, however, was not punishable as an abettor or principal offender. The law treated the woman as a passive object, reflecting an outdated patriarchal notion of women being the property of men. Section 198(2) CrPC further exacerbated this inequality by allowing only the husband of the woman to initiate prosecution.
The Court held unanimously that these provisions were unconstitutional. Justice D.Y. Chandrachud aptly observed that the law institutionalized gender-based discrimination by treating women as subordinate to their husbands and denying them agency. Chief Justice Dipak Misra, writing the majority opinion, emphasized that a law rooted in patriarchy cannot withstand constitutional scrutiny. The ruling did not, however, legitimize adultery; it merely decriminalized it, making it a ground for civil remedies such as divorce, not criminal punishment.
Use of Legal Jargon
The petitioner sought to enforce basic rights by utilizing the Supreme Court’s writ jurisdiction, as stated in Article 32.
Ultra Vires: The impugned provisions were declared ultra vires (beyond the authority of) the Constitution.
Doctrine of Manifest Arbitrariness: The Court used this doctrine to strike down Section 497 IPC, citing its irrational classification and lack of intelligible differentia.
Constitutional Morality: The judgment invoked the principle of constitutional morality, indicating that the Constitution, not social morality, must guide judicial interpretation.
Right to Autonomy: The decision reinforced the idea that personal autonomy, especially in matters of intimacy and choice, is protected under Article 21.
Gender Neutrality: The Court underscored that criminal law cannot operate on assumptions that deprive women of legal personality or equal status.
Due Process: The absence of fair and equal legal standards under Section 497 was seen as a breach of substantive due process under Article 21.
The Proof
Background and Historical Context
Section 497 IPC was introduced in 1860 by the British, designed to safeguard the “sanctity of marriage.” However, its true function reflected a gender-biased conception of the wife as the husband’s property. The law penalized only the male offender, exempting the woman irrespective of her consent or participation.
The Law Commission of India in its 42nd Report (1971), 156th Report (1997), and 172nd Report (2000) recommended reviewing or repealing the provision for being archaic. Yet, successive governments did not amend or repeal the section.
The petitioner, Joseph Shine, a non-resident Keralite, argued that the law violated fundamental rights and perpetuated patriarchal domination over women. The Court took cognizance of the changing social landscape and the need to harmonize criminal laws with the Constitution.
Relevant Constitutional Provisions
Article 14: Equality before law – the provision created an arbitrary classification between men and women.
Article 15(1): Prohibits the State from discriminating on the grounds of sex – Section 497 exclusively punished men.
Article 21: Protection of life and personal liberty – the provision interfered with personal autonomy and dignity.
Writing on behalf of himself and Justice A.M. Khanwilkar, CJI Dipak Misra concluded that Section 497 treated women like property. It established a category of “privileged women” who are exempt from prosecution. And have failed to pass Article 14’s test of obvious arbitrariness and rational classification. As it violated Article 21’s guarantees of autonomy and dignity.
According to Justice Rohinton Nariman, the clause was obviously patriarchal and discriminatory.
A more philosophical stance was adopted by Justice D.Y. Chandrachud, who noted that “the Constitution is a document of transformation.” He pointed out that women were denied sexual agency and objectified by the law.
The only woman on the bench, Justice Indu Malhotra, stressed that the law upheld the idea that women were inferior to men in marriage.
Section 198(2) of the Code of Criminal Procedure was also struck down for limiting the right to prosecute adultery to the husband of the woman. This procedural law reinforced the substantive discrimination of Section 497 IPC.
Case Laws (Related Judgments and Precedents)
State of Bombay v. Yusuf Abdul Aziz (1954)
Section 497 was previously upheld by the Supreme Court, which held that Article 15(3) permitted special provisions for women. In Joseph Shine, this ruling was overturned.
Sowmithri Vishnu v. Union of India (1985)
The Court declined to strike down Section 497 despite acknowledging its gender bias, deferring to legislative domain. Joseph Shine corrected this error.
Revathi v. Union of India (1988)
The Court decided that the wife could not use Section 497 to bring charges against her husband or the other woman. This demonstrated the court’s support for unfair treatment. Joseph Shine took the opposite position.
Navtej Singh Johar v. Union of India (2018)
The Court ruled that morality cannot supersede fundamental rights, decriminalizing homosexuality. The ruling served as Joseph Shine’s jurisprudential cornerstone.
KS Puttaswamy v. Union of India (2017)
Acknowledged the right to privacy, including sexual privacy, as a fundamental right guaranteed by Article 21. Joseph Shine made extensive use of this ruling. Shine.
Indian Young Lawyers Association v. State of Kerala (2018) (Sabarimala case)
The Court condemned patriarchal norms in religion and law. The gender justice principles from this case influenced the Joseph Shine verdict.
Conclusion
The landmark and forward-thinking ruling in Joseph Shine v. Union of India signifies how Indian criminal law has changed in accordance with constitutional principles. It emphasises that criminal laws shouldn’t violate people’s rights or impose patriarchal morals. The Court eliminated an antiquated legal provision that dehumanised and denied women agency by overturning Sections 497 IPC and 198(2) CrPC. The ruling represents a significant step forward for the Constitution’s guarantees of personal freedom, dignity, and gender equality.
Moving forward, the judgment has opened avenues for reforming other gender-biased laws, including marital rape, inheritance rights, and reproductive freedoms. It sends a powerful message that legal reform cannot lag behind social transformation. While adultery remains a moral wrong and a ground for civil action (such as divorce), it no longer qualifies as a criminal offense. This reflects a mature understanding of the role of criminal law – to prevent public harm, not regulate private morality.
FAQS
Q1: What was Section 497 IPC, and why was it controversial?
Answer:
Adultery was made illegal by Section 497 IPC, which punished a man who had sex with a married woman without her husband’s permission. The issue stemmed from its gender bias: women were viewed as passive objects or victims, while men were the only ones subject to punishment. This went against the equality and dignity guaranteed by the constitution and represented a patriarchal and property-based view of marriage.
Q2: Did the judgment legalize adultery?
Answer:
No. The Supreme Court did not legalize or promote adultery. It merely decriminalized it, removing it from the ambit of criminal law. Adultery remains a valid ground for divorce or other civil remedies under matrimonial laws, but it is no longer a punishable offense.
Q3: Can a wife now prosecute her husband or his lover for adultery?
Answer:
No, after the judgment, adultery is not a criminal offense, so neither husband nor wife can initiate criminal prosecution for adultery. However, either spouse can seek civil relief, such as divorce or judicial separation, on the grounds of adultery under the Hindu Marriage Act, 1955 or other personal laws.
Q4: Was Section 497 declared discriminatory and overturned?
Answer:
Yes. The Court found Section 497 to be in violation of Article 14 (equality), Article 15 (non-discrimination), and Article 21 (life and liberty). It created arbitrary classifications based on gender, treated women as property, and denied them agency, all of which were incompatible with a modern constitutional framework.
Q5: What role did Section 198 CrPC play, and why was it also invalidated?
Answer:
Only the adulterous woman’s husband could file a complaint under Section 198(2) CrPC. The substantive inequality of Section 497 was strengthened by this procedural restriction. It was overturned by the Court because it was discriminatory and went against the Constitution’s values of equality and self-determination.
Q6: How does this judgment relate to the broader context of gender justice in India?
Answer:
Joseph Shine is part of a growing judicial trend toward recognizing women’s equal status in law. Alongside judgments like Navtej Johar and Sabarimala, it reflects the Court’s active role in challenging patriarchal norms and promoting substantive gender equality. It lays the groundwork for future reforms in areas like marital rape, workplace equality, and personal autonomy.
Q7: What is the significance of the term “constitutional morality” in this case?
Answer:
Adherence to the fundamental values of the Constitution—liberty, equality, dignity, and fraternity—instead of the dominant social or religious morality is referred to as “constitutional morality.” The Court used this idea to highlight the need for laws to represent constitutional values rather than moralistic or patriarchal notions that undermine personal freedom.
Q8: Can the legislature reintroduce adultery as a gender-neutral offense?
Answer:
While technically possible, any reintroduction of adultery into the criminal law would have to meet constitutional standards of gender neutrality, equality, and proportionality. Given the reasoning in Joseph Shine, it is unlikely that a re-criminalized version of adultery would pass judicial scrutiny unless it serves a legitimate public interest.
Q9: How did the Court handle precedent in this case?
Answer:
The Court explicitly overruled previous judgments such as Yusuf Aziz, Sowmithri Vishnu, and Revathi that had upheld the constitutionality of Section 497. It emphasized that constitutional interpretation must evolve with time and reflect contemporary values of dignity, equality, and autonomy.
Q10: What broader message does the Joseph Shine case convey to Indian society?
Answer:
The case sends a powerful message that legal norms must evolve to reflect social progress and constitutional morality. It affirms that individual dignity and equality cannot be compromised in the name of tradition or social morality. The ruling encourages a more inclusive, gender-just, and progressive legal system aligned with fundamental rights.
