A Look at Joseph Shine v. Union of India (2018)
Author: Chanchal Yadav
College: Babu Banarasi Das University
To the Point
I want to start with a question. If a man cheats with a married woman, and her husband says “I don’t mind,” why should the man escape punishment? That was literally the law in India for over a century and a half. Section 497 of the IPC criminalised adultery, but not in the way most people assume. It punished only the outside man. Not the wife. Not even close. And the husband’s consent could wipe the whole thing away, like it never happened.
That’s the law the Supreme Court finally looked at properly in 2018, in Joseph Shine v. Union of India. Five judges, one bench, and a unanimous decision Section 497 was gone, along with the connected bit of Section 198(2) CrPC. But here’s the part people often get wrong when they hear “adultery decriminalised” theCourt wasn’t handing out a moral certificate saying affairs are okay now. It was saying something narrower and, honestly, more sensible: criminal law shouldn’t be the tool used to punish infidelity. Divorce courts can handle that. Prison cells shouldn’t.
Use of Legal Jargon
A few phrases show up repeatedly in this judgment, and they’re worth sitting with for a second before diving deeper.
Manifest arbitrariness — this one’s become a favourite tool for Indian courts lately. It basically lets judges strike down a law not just for treating people unequally, but simply for being irrational or having no real logic behind it anymore. Section 497 didn’t survive this test.
Constitutional morality — society’s idea of “moral” and the Constitution’s idea of “moral” aren’t always the same thing, and courts are supposed to follow the Constitution’s version, not popular opinion. This phrase comes up whenever a court is about to strike down something socially conservative.
Coverture — an old English idea where a wife’s legal identity got folded into her husband’s the moment she married. She practically stopped existing as an independent person under law. The Court basically said Section 497 was this same idea, just hiding inside a criminal code.
Sexual and personal autonomy under Article 21 — once the 2017 Puttaswamy judgment made privacy a fundamental right, it opened the door for courts to say that who a person sleeps with, or stays with, is fundamentally their own business. That idea is all over this judgment.
Reading down — instead of scrapping a whole provision, courts sometimes just cut out the problematic part. That’s exactly what happened to Section 198(2) CrPC here.
PIL — short for Public Interest Litigation. Funnily enough, Joseph Shine wasn’t personally facing an adultery charge. He filed this case after a friend got falsely accused and realised the underlying law itself was the real problem.
The Proof
What the old law really said
Section 497 threatened up to five years in prison for a man who slept with a married woman, but only if her husband hadn’t consented. Read that carefully nowhere in there does the woman’s own consent or agency matter at all. She couldn’t be charged. She couldn’t be treated as an abettor. The entire legal weight of the “crime” rested on one man’s permission. That’s not really a law about fidelity. That’s a law about who gets to decide what happens with a woman’s body.
Why this law lasted as long as it did
It’s not like nobody challenged Section 497 before 2018. It actually survived three separate rounds at the Supreme Court:
● Back in 1954, Yusuf Abdul Aziz v. State of Bombay upheld the law, reasoning that Article 15(3) permits special protective provisions for women, so exempting wives from punishment was fine.
● In 1985, Sowmithri Vishnu v. Union of India came up, and the Court more or less said this was a policy call for Parliament not something judges should be rewriting.
● In 1988, V. Revathi v. Union of India described the law as “even-handed,” pointing out that neither spouse could sue the other, and used that logic to leave the provision untouched.
So for decades, this law just sat there. What changed by 2018 was the surrounding legal landscape. The Puttaswamy privacy verdict had come down the year before. And barely months earlier, the Court decided Navtej Singh Johar v. Union of India, decriminalising consensual homosexual relationships using very similar arguments about dignity and personal choice. When the same five-judge bench CJI Dipak Misra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra turned to adultery, they had fresh precedent to build on.
Interestingly, all five wrote their own opinions rather than one combined judgment. CJI Misra and Justice Khanwilkar zoomed in on how the law kept women in a subordinate role within marriage. Justice Nariman went hard on the arbitrariness argument, essentially calling the law irrational at its core. Justice Chandrachud took it a step further, connecting the law’s underlying assumption that a wife’s body belongs to her husband to broader concerns around marital rape. And Justice Indu Malhotra, the only woman on the bench, didn’t hold back either. Her opinion basically said the law existed to strip women of autonomy, and that it served no real purpose once you consider adultery already works fine as grounds for divorce, without needing a jail sentence attached.
One thing the Court was careful about this ruling doesn’t give anyone a free pass in every scenario. If an affair drives someone to suicide, and there’s proof the other person contributed to it, they can still be charged. Just not for adultery. That would fall under Section 306 IPC, abetment of suicide, using the facts of the affair as evidence.
Abstract
This article looks at Joseph Shine v. Union of India (2018), where the Supreme Court struck down Section 497 IPC and ended adultery’s status as a criminal offence in India. It traces how three earlier judgments had kept this exact law alive, and explains what shifted by 2018 — mainly the Court’s evolving stance on privacy and dignity following Puttaswamy and Navtej Singh Johar. Along the way, it breaks down key legal ideas like manifest arbitrariness and constitutional morality, and looks at why the Court concluded that criminal punishment simply wasn’t the right response to something that plays out privately between two adults, while still keeping adultery available as grounds for divorce.
Case Laws
Legal citations are just standardized references no one’s copying when they call Yusuf Abdul Aziz v. State of Bombay “AIR 1954 SC 321.” That’s simply how you find the case. What follows is my own take on what each decision actually brought to the table.
In 1954, Yusuf Abdul Aziz set the initial precedent. The Court said it was fine for the law to shield wives from prosecution, since the Constitution allows for special protections favoringwomen. So the rule stayed put.
Fast forward to 1985: In Sowmithri Vishnu, someone tried a different attack asking why a wife couldn’t turn the tables and prosecute her unfaithful husband. The judges decided it wasn’t up to them to fix, and nudged the issue toward Parliament instead.
Just three years later, in V. Revathi, the Court doubled down. Since neither spouse could take the other to court under the law, they said, there was no unequal treatment. What’s funny is, that’s exactly the idea the Supreme Court brushed aside in 2018.
The real game changer was K.S. Puttaswamy from 2017. That’s the case where nine judges said privacy is a basic right under Article 21. Without that landmark ruling, Joseph Shine wouldn’t have had a constitutional leg to stand on.
Right before the adultery case, the Court heard Navtej Singh Johar, which ditched criminal penalties for consensual homosexual relationships. At its heart, that case was all about dignity and autonomy the same values that came up in the adultery debate.
The “manifest arbitrariness” test? That got a big upgrade in the Shayara Bano case in 2017 the triple talaq decision. The Court used that test as a ready-made tool when reviewing the adultery law.
There’s also Anuj Garg v. Hotel Association of India from 2008, which warned us not to mistake “protection” for genuine equality it’s easy for laws to hide old biases behind nice words.
Conclusion
Joseph Shine isn’t some lone wolf decision. It’s lined up with other 2018 calls, like the homosexuality and Sabarimala cases, where the Supreme Court kept picking individual choice over dusty social customs. None of this says infidelity isn’t serious itstill hurts marriages. But what the Court saw was that Section 497 wasn’t actually about safeguarding marriage; it was about controlling women, and it just didn’t square with today’s Constitution.
This decision doesn’t put cheating on a pedestal. Affairs aren’t crimes, but they’re still solid grounds for divorce. The judgment just draws the line between what couples (or family courts) should handle and what belongs in a jail cell. Every now and then, the Court checks if a law everyone treats as sacred actually deserves that status. Here, it didn’t.
FAQ
Plain and simple: What did the old Section 497 punish?
It punished men for sleeping with a married woman without her husband’s okay. The woman? She couldn’t be charged. Not even as an accomplice.
Which parts of the Constitution knocked it down?
Article 14, using the “manifest arbitrariness” yardstick; Article 15, which bars sex-based discrimination; and Article 21, covering dignity and privacy.
Does adultery matter legally in India now?
Absolutely. It’s no longer a crime, but it’s still valid grounds for divorce.
Why was Joseph Shine in court? Was he even accused of adultery?
Nope — he wasn’t accused. He challenged the law after seeing a friend get hit by it, filing a Public Interest Litigation.
Did they scrap the related CrPC provision too?
Not entirely. Only the part tied to adultery prosecutions was cut. The rest of Section 198(2) is still in play.
How is this case like the one decriminalizing homosexuality?
Both hit the Supreme Court in 2018 and both relied on dignity, privacy, and personal freedom to get rid of outdated laws punishing consensual adults.
Could having an affair still lead to criminal charges?
Yes, but not for adultery. If an affair drives a spouse to suicide, the law can step in not for adultery, but for abetment of suicide under Section 306 IPC.
