2

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SEMESTER III

FAMILY LAW I
PROJECT-II

Joseph Shine v. Union of India

[AIR 2018 SC 4898]

SUBMITTED TO
Ms. Debashree Sarkar

SUBMITTED BY
Srajan Tyagi
(2019BALLB107)

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CERTIFICATE

This is to certify that the case analysis – Joseph Shine v. UOI has been prepared and
submitted by Srajan Tyagi who is currently pursuing their BALLB at National Law
Institute University, Bhopal in fulfilment of Family Law I course. It is also certified that
this is an original case analysis and this has not been submitted to any other university,
nor published in any journal.

Date-
Signature of the student-
Signature of Research Supervisor-

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ACKNOWLEDGEMENT

The project has been made possible by the unconditional support of many people. I would
like to acknowledge and extend my heartfelt gratitude to Ms. Debashree Sarkar for
guiding me throughout the development of this paper into a coherent whole by providing
helpful insights and sharing her brilliant expertise. I would also like to thank the officials
of the Gyan Mandir, NLIU for helping us to find the appropriate research material for this
study.
I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.

Srajan Tyagi
2019BALLB107

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TABLE OF CONTENTS

CERTIFICATE....................................................................................................................2

ACKNOWLEDGEMENT...................................................................................................3

INTRODUCTION...............................................................................................................5

NAME OF THE CASE:......................................................................................................7

DATE OF THE JUDGEMENT:..........................................................................................7

CITATION OF THE JUDGEMENT:..................................................................................7

NAME OF THE JUDGES:..................................................................................................7

TYPE OF BENCH:..............................................................................................................7

NUMBER & TYPE OF OPINIONS:..................................................................................7

AUTHOR OF THE JUDGEMENT:....................................................................................7

COUNSELS REPRESENTING THE PARTIES:...............................................................7

BACKGROUND.................................................................................................................9

MATERIAL FACTS...........................................................................................................9

ISSUES..............................................................................................................................11

CONTENTIONS...............................................................................................................11

PROVISIONS OF STATUTES/CONSITUTION CITED................................................14

DOCTRINES/THEORIES INVOKED.............................................................................16

LITEREATURE CITED....................................................................................................16

PRECEDENTS CITED.....................................................................................................17

JUDGEMENT...................................................................................................................19

REASONING....................................................................................................................19

CRITICAL ANALYSIS AND CONCLUSION................................................................20

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NAME OF THE CASE:

JOSEPH SHINE V. UNION OF INDIA

DATE OF THE JUDGEMENT:

27TH DECEMBER, 2018

CITATION OF THE JUDGEMENT:

AIR 2018 SC 4898

TYPE OF BENCH:

IT WAS AN APPEAL BEFORE THE CONSTITUTIONAL BENCH OF THE SUPREME COURT.

NAME OF THE JUDGES:

Chief Justice Deepak Mishra, Justice A.M. Khanwilkar, Justice Indu Malhotra, Justice
D.Y. Chanrachud, Justice Rohinton Fali Nariman.

NUMBER & TYPE OF OPINIONS:

THE CONSTITUTIONAL BENCH GAVE 4 DIFFERENT CONCURRING OPINIONS.

AUTHOR OF THE JUDGEMENT:

CHIEF JUSTICE DEEPAK MISHRA [ALSO ON JUSTICE KHANWILKAR’S BEHALF]; JUSTICE

MALHOTRA; JUSTICE CHANRACHUD; JUSTICE NARIMAN.

COUNSELS REPRESENTING THE PARTIES:

PETITIONER: -

Adv. Kaleeswaram Raj; Adv. M.S. Suvidutt (AoR)

RESPONDENT: -

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Adv. K.K. Venugopal; Adv. B.V. Balaram Das (AoR)

INTERVENORS/ AMICUS: -

Vimochana; Partners for Law in Development.

INTRODUCTION

In India, adultery was founded on the idea of patriarchy and male chauvinism. This crime
makes a man who has sexual intercourse with a woman who is another man's wife
criminally liable. And it will no longer be adultery if the husband consents or connives to
such an act. In the event where her husband commits adultery, a woman has no right.
Adultery was considered to be a sinful act by either a married man or a woman in ancient
history. Adultery does not treat a woman as a culprit in India, but as a victim who has
been seduced to do such an act by a man. This law violates our fundamental values, i.e.
equality, non-discrimination, the right to dignified life, etc.

In as many as 60 nations, including South Korea, South Africa, Uganda, Japan, etc.,
adultery has been prosecuted as a crime for being gender biased and breaching the right
to privacy. Even the founder of the penal code, Lord Macaulay, objected to its inclusion
in the penal code as an offence rather than implying that it should be left as a
constitutional wrong. In line with evolving social values and growing individual freedom,
the law changes with time and several recent rulings have widened the reach of
fundamental rights.

In making history, this decision joins them by striking down 158-year-old legislation that
has lost its significance with changing social and moral circumstances. The judgement
overruled all prior rulings upholding the criminalization of adultery. The query arose as
to whether or not adultery is regarded as a crime. The court was of the view that the
definition of crime does not involve adultery. There would be immense interference into
the intense intimacy of the marital sphere if it were viewed as a criminal offence. It is
better to be left as a ground for divorce.

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Adultery has now become legal, but culturally is still not ethical. The institution of
marriage, i.e., husband and wife, is founded on trust between the two parties. Therefore,
the Hon'ble Supreme Court of India did not mess with people's personal and spiritual
lives.

Currently, Adultery is only considered as a civil wrong which could become a ground for
divorce.

BACKGROUND

On the outset of adultery being a criminally incriminating provision not only a civil
wrong as it should be many men have fallen prey to such penal provisions, and along
with the overall gender biasness of various laws in the favour of women this provision
also had a fair share of misuse thus even after it was held constitutionally valid, in various
other precedents a petition was filed by a non-residential Keralite named Joseph Shine
who raised question on the constitutionality of the Section 497 of the Indian Penal Code.
The main purpose behind this petition was to protect Indian men from being punished by
vengeful women or their husbands for extra marital relationships. The petitioner's close
friend in Kerala committed suicide after he was accused of malicious rape by a female
co-worker. Section 4971 is another egregious occurrence in unfairness of sexuality,
authoritative imperialism, and male patriotism. In contemporary society, the traditional
context under which Section 497 was drafted is no longer applicable. And thus, a Public
Interest Litigation was filled. Initially, it was presented before a three-judge bench where
the judges found fit to refer the case to a constitutional bench and thus the researcher is
analysing the said case.

MATERIAL FACTS

Under Article 32, Joseph Shine filed a written petition questioning the constitutionality of
§ 497 of IPC and § 198 (2) of Cr. P.C. 2, in breach of the of Articles 14, 15 and 21. This
was originally a PIL filed for adultery. The plaintiff argued that the adultery clause was
arbitrary and oppressive on the basis of gender. The petitioner argued that the integrity of
1
Indian Penal Code, Act No. 45 of 1860, § 497 [1860].
2
Criminal Procedure Code, Act No. 2 of 1974, §198 [1973].

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a woman is demolished by such a statute. In order to hear the appeal, a constitutional

bench of 5 judges was set up.

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ISSUES

It was initially clarified by the Chief Justice that the bench would only deal with the
constitutional validity of § 497 I.P.C. & § 198 Cr.P.C. and the court than accordingly
formulated the below mentioned issues pertaining to the said case: -
1. Whether § 497 and § 198 are violative of article 14 of the Constitution3?
2. Whether § 497 and § 198 are violative of article 15 of the Constitution4?
3. Whether § 497 and § 198 are violative of article 21 of the Constitution5?
4. Whether Adultery should be a treated as a criminal offence [even after
changing it definition to a gender-neutral one]?

CONTENTIONS

1. PETITONER
a. The petitioner first contends that the provision in question is inherently
arbitrary and frowns the art. 14 of the constitution and thus contends that
when a provision is in contravention of art. 14 it is said to be void to that
extent. As, section 497 criminalizes adultery based on a classification
made on sex alone. Such a classification bears no rational nexus with the
object sought to be achieved and is hence discriminatory.

b. The petitioner further contends that as art. 15 prohibits the State from
discriminating on grounds only of sex Section 497 of IPC is clearly
violative of it as:
i. It places husband and wife on different footings by its very
definition.
ii. Also, that the section is based upon patriarchal notions of treating
the wife as the chattel of the husband, as the crime vanishes when
there is the consent of the husband allowing the wife to commit

3
Indian Const., art. 14.
4
Indian Const., art.15.
5
Indian Const., art. 21.

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adultery. Thus, husband has the ownership over the sexual agency
of his wife.
c. The petitioner submits that the provision is clearly violative of art. 21 as it
creates arbitrary distinction based on gender stereotypes which dents the
dignity of a woman, and the fact that the connivance of the husband
absolves the criminal liability tantamount that women are inferior to men,
and merely the chattel of their husbands.
d. Right to Privacy has been established as a fundamental right in the
Puttaswamy6 case and building upon this fact the petitioners contended
that the right to choose for a partner to have sexual intercourse with would
also be considered as a personal choice in which the state has nothing to
say and thus section 497 should be struck down.
2. RESPONDENT
a. On the other hand, the primal argument of the respondent i.e. the union
govt. was that article 15(3) of the constitution, provides for making special
provisions for women by the state, and thus under art.15 the crime of
adultery finds homage.
b. The petitioners further submitted that adultery is morally abhorrent in
marriage, and no less an offence than the offences of battery, or assault.
Section 497 protects the institution of marriage, and promotes social well-
being as it deters individuals from engaging in conduct which is
potentially harmful to a marital relationship.

c. The respondents claim that an act which outrages the morality of a society
and/or harms its citizens should be a criminally liable act, which adultery
is.

d. It was further submitted that the sanctity of family life, and the right to
marriage are fundamental rights comprehended in the “right to life” under
Article 21. An outsider who violates and injures these rights must be
deterred and punished in accordance with criminal law.

6
K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.

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e. It was finally suggested that if the Court finds any part of the section
violative of the Constitution of India, the Court should strike down that
part, in so far as it is violative of the Constitution but not to repeal the
complete provision.

3. INTERVENORS/AMICUS
The intervenors’ contentions were in consonance with the contentions of the
petitioners.

PROVISIONS OF STATUTES/CONSITUTION CITED

 Indian Penal Code,1860.

Section 304 (B): Dowry Death.

Section 306: Abetment to Suicide.
Section 494: Marrying again during lifetime of husband or wife.
Section 497: Adultery.
Section 498: Enticing or taking away or detaining with criminal intent a married
woman.
Section 498(A): Husband or relative of husband of a woman subjecting her to
cruelty.

 Code of Criminal Procedure,1898.

Section 199: Prosecution for adultery or enticing a married woman.

 Code of Criminal Procedure, 1973.

Section 125: Order for maintenance of wives, children and parents.

Section 198: Prosecution for offences against marriage.
The only difference in respect of adultery in the old and the new code was
that earlier only the husband was the aggrieved and thus only he could
approach the court but now any person who was taking care of the wife
could file such petition, and thus, now any such person could be the
aggrieved.

 The Constitution of India, 1950.

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Article 14: Right to Equality.

Article 15: Right against Discrimination.
Article 16: Equality of opportunity in matters of public employment.
Article 21: Right to Life.
Article 366(10): Definition of “existing laws”

 Divorce and Matrimonial Causes Act, 1857. [UNITED KINGDOM]

Section LIX: Abolished the common law action for Criminal Conversion
[ADULTERY].
Section XXXIII: To Award the husband damages for the adultery of the wife.

 Matrimonial Causes Act, 1923. [UNITED KINGDOM]

It opened adultery as a ground of divorce to both the husband and wife instead
only for the husband.

 Law Reforms (Miscellaneous Provisions) Act, 1970. [UNITED KINGDOM]

Section 4: It finally abolished the right of the husband to claim damages for
adultery.

 The Criminal Code,1998. [SOUTH KOREA]

Article 241: Adultery.

 The Penal Code Act, 1950. [UGANDA]

Section 154: Adultery.

 The Law Reform (Marriage and Divorce) Act, 1976. [MALAYSIA]
It made adultery a civil wrong for all non-Muslims and also allowed either
spouse, to be an aggrieved party and claim damages from the adulterer or
adulteress.

DOCTRINES/THEORIES INVOKED

 MANIFEST ARBITRARINESS

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This test or doctrine was set up by the apex court in the recent case of Shayara
Bano case7 by looking into various previous judgements reacting to art.14. This
doctrine enshrines that Manifest arbitrariness would be something done by the
legislature capriciously, irrationally and/or without adequate determining
principle. Also, when something is done which is excessive and disproportionate,
such legislation would be manifestly arbitrary. Thus, such a legislation would
violate art.14 of the constitution and thus would invalidate the legislation
according to art.13 of the constitution.

 PATRIARCHY

Patriarchy is a social structure in which men have primary authority and govern
political leadership, moral authority, social privilege, and property ownership
positions. Some patriarchal systems are also patrilineal, implying that the male
lineage inherits property and title.
 RIGHT TO PRIVACY
The right to privacy is an element of various legal traditions to restrain
governmental and private actions that threaten the privacy of individuals. It
enshrines principles which are rather new to the traditional concepts of centre-
state relationship. It more or less defies that there are some spheres of private lives
of individuals that the govt. can’t interfere with. This theory first came into light
by the 4th amendment of the U.S. constitution, which read “The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” 8 It was very recently
realised in the Indian jurisprudence in the Puttaswamy case.

 BENEVOLENT PATRIARCHY(SEXISM)

“Benevolent sexism is a form of paternalistic prejudice (treating a lower status

group as a father might treat a child) directed toward women. Prejudice is often
thought of as a dislike or antipathy toward a group. Benevolent sexism, however,
7
Shayara Bano v. Union of India and Ors, (2017) 9 SSC 1.
8
U.S. Const. amend. IV, 1791.

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is an affectionate but patronizing attitude that treats women as needing men’s

help, protection, and provision (i.e., as being more like children than adults).
Benevolently sexist attitudes suggest that women are purer and nicer than men,
but also mentally weaker and less capable. Behaviours that illustrate benevolent
sexism include overhelping women (implying they cannot do something
themselves), using diminutive names (e.g., ‘sweetie’) toward female strangers, or
‘talking down’ to women (e.g., implying they cannot understand something
technical).”9

 AFFIRMATIVE ACTION

Affirmative action refers to a series of policies and procedures within a

government or corporation that aim to incorporate certain groups in areas where
they have been excluded in the past, such as education and jobs, based on their
gender, ethnicity, religion or nationality. In India affirmative action is carried by
the Indian constitution under the non-justiciable fundamental rights 10. Which is in
place to protect the interests of minority groups usually based on their caste, as
caste-based discrimination and violence has been prevalent in India for a very
long time.

 DOCTRINE OF COVERTURE

First compiled by William Blackstone11 in his commentaries on the English Legal

system this doctrine finds its roots from the biblical notions that wife and the
husband are one and the same person i.e. they are “one in flesh and blood” and
thus the doctrine propounds that 'coverture' means that a married woman's legal
rights would be subsumed by that of her husband, “which meant that a woman
could not own property, execute legal documents, enter into a contract, or obtain
an education against her husband's wishes, or retain a salary for herself.”12

9
http://psychology.iresearchnet.com/social-psychology/prejudice/benevolent-sexism/
10
Indian Const., art. 14, 15, 16.
11
William Blackstone, Blackstone's Commentaries on the Laws of England, Books III & IV (8 th Edn.),
1778
12
Tim Stretton and Krista J. Kesselring, Married Women and the Law: Coverture in England and the
Common Law World, McGill Queen's University Press, 2013.

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LITEREATURE CITED

 The Due Process of Law by Alfred Denning.13

Two central themes run through The Due Process of Law. The first is the
workings of the various measures authorised by the law so as to keep the streams
of justice pure like, contempt of court, judicial investigations, and powers of arrest
and search. The second is the recent history of family law, concentrating in
particular on the contribution of Lord Denning to law of husband and wife.
Through a discussion of Lord Denning's own judgments and views on a wide
variety of subjects, these general themes are elaborated.
This book was cited to show the view of lord Denning on the status of wives in a
marriage.

 Halsbury's Laws of England14 by Edward Jenks

Halsbury's Laws of England is a uniquely comprehensive encyclopaedia of law,

and provides the only complete narrative statement of law in England and Wales.
It was cited to give the view of Jenks on what is a crime, while the court was
looking into whether adultery should be considered a crime or not.

 Manu smriti: The Laws of Manu by Manu (Translation by G. Buhler).15

Among the several Dharmaśāstras of Hinduism, it is an ancient Hindu legal text.

It was one of the first Sanskrit texts to be translated by Sir William Jones into
English in 1776, and was used by the British colonial government to formulate
Hindu law. It was compiled around 200BC not by Manu himself but by one of his
disciples as in Manu’s time writing was still not discovered. It was Manu’s on the
socio-legal status of the society in his time, it was majorly about the laws of his
time.
This book was cited for the historical perspective of Adultery in the ancient Hindu
society.

13
Alfred Denning, The Due Process of Law, Butterworths,1980.
14
Edward Jenks, Halsbury’s Laws of England, Fourth Edition, Vol. 24, 1907.
15
Manu smriti: The Laws of Manu (Translation by G. Buhler), Clarendon Press, UK, 1886.

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 The Old Testament (King James’ version)16

The Bible is the Christian religion's sacred book, purporting to tell the earth's
history from its earliest conception to the spread of Christianity in the first century
A.D. Over the years, both the Old Testament and the New Testament have
undergone changes, including the publication in 1611 of the King James Bible
and the addition of other books that were later found. The first portion of the
Bible is the Old Testament, covering the creation of the World by Noah and the
flood, Moses and more, ending with the exile of the Jews to Babylon.
It was cited to give the perspective of ancient Judaeo-Christian society on the
affairs of Adultery.

 Subversive Sites: Feminist Engagements with Law in India by Brenda Cossman

and Ratna Kapoor.17
The dynamic relationship between women and the law is discussed in ‘Subversive
Sites’, trying both to identify the boundaries of the law and to explore its
possibilities for revolutionary change in the social status of women. The authors
open up an environment of critical significance and concern for feminists
employed in the 'field' and in academia through a limited yet meticulous review of
a variety of legal provisions -- constitutional protections, case law, public
litigation, legislative steps. Although the emphasis is on India, this particular
context goes far beyond the relevance of the book's concerns.
This book is cited multiple times to elaborate and explain the difference gender
struggle and its implication in Indian legislations and judicial decisions.

 The Law Commission, 42nd Report: Indian Penal Code18

The Law commission of India compiles reports on the contemporary state of

Indian laws. It reviews them, analyses their social impact and whether the older
laws are still consistent with the current society’s standards and morality. And

16
The Old Testament, King James’ Version, 1611.
17
Brenda Cossman and Ratna Kapoor, Subversive Sites: Feminist Engagements with Law in India, SAGE
Publications, 1997.
18
The Law Commission, 42nd Report: Indian Penal Code, 1971.

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finally, it suggests the legislature changes and modifications if necessary, in the

current laws, but the legislature seldom acts on these suggestions.
The 42nd report was compiled in 1971, and it was cited to show the stand of the
law commission throughout the history on the matter of Adultery. In this report
they suggested to retain it as a law but make it a gender-neutral law.

 The Law Commission, 156th Report: Indian Penal Code19

The 156th report was compiled in 1997, and it was cited to show the stand of the
law commission throughout the history on the matter of Adultery. In this report
too they suggested the same that is retention of the law while making it gender-
neutral.

 Report of the Committee on Reforms of Criminal Justice System by Justice V.S.

Malimath. 20
This was a major criminal law report in the history of criminal law in India as it
suggested major overhauls and changes in the intrinsic and original spirit of the
Indian criminal law which according to the committee was not very considerate of
the victim of the crime but gave way to leniencies and laxity in favour of the
accused who could very well be the convict. Thus, the NDA govt. in 2000 asked
for such suggestions, leading to the formation of this committee headed by Justice
V.S. Malimath.
This report was cited to review its stance on Adultery as a crime in India, to which
the answer was once again on the same lines i.e. turning it into a gender-neutral
law.

 For Better or for Worse: Adultery, Crime and the Constitution by M. J. Siegel.21

In this paper the author suggested a way out of the adultery being a crime in the
United States though the help of case laws defining the right to privacy in support
of having the freedom to choose one’s sexual partner and the fact that in a
relationship one party is criminally liable for having a sexual relation outside that

19
The Law Commission, 156th Report: Indian Penal Code, 1997.
20
Report of the Committee on Reforms of Criminal Justice System, 2003.
21
M. J. Siegel, For Better or for Worse: Adultery, Crime and the Constitution, Journal of Family
Law Vol.30, 1992.

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relationship and one is fundamentally not liable in anyway, is preposterous and

should be done away with.
This was cited to give reasoning on similar lines in Indian context given the fact
that a landmark judgement in favour of right to privacy was already a strong
precedent (Justice Puttaswamy’s case).

 Blackstone's Commentaries on the Laws of England by William Blackstone.22

The books are a commentary on the legal system of England which were
originally compiled in 18th century to explain the legal system of England to the
world and general public.
The literature was cited firstly to establish or explain the basic nature of crime and
later to explain the doctrine of COVERTURE.

 Married Women and the Law: Coverture in England and the Common Law World
by Tim Stretton and Krista J. Kesselring.23
This book compiles all the sources relating to laws of married women in English
jurisprudence with a special focus on the doctrine of COVERTURE.
The literature was cited by J. Indu Malhotra to explain the doctrine of
COVERTURE.

 A Penal Code Prepared by the Indian Law Commissioners by Thomas

Babington Macaulay.24
Great Britain's Indian colonies were controlled by the private East India Company
the Indian Penal Code was drafted. In several ways, its laws on criminal acts were
in conflict with the Muslim, Hindu and Common English law. Thus, the company
set up an Indian Law Commission in 1834 to resolve this situation through the
establishment of a penal code. Which was directed by Lord T.B. Macaulay.
This book is cited to establish how did the criminal penalty for adultery came into
its existence in India, even after the idea was rejected by Lord Macaulay.

22
Supra, note 11.
23
Supra, note 12.
24
Thomas Babington Macaulay, A Penal Code Prepared by the Indian Law Commissioners, Lawbook
Exchange, Ltd., reprint edition, 1838.

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PRECEDENTS CITED

A. INDIAN JUDGEMENTS
1. Yusuf Abdul Aziz v. State of Bombay25
This is the first account of any constitutional question being raised on the
crime of Adultery. Here a man was accused of committing adultery, he
was acquitted by the trail court but this was overturned in the High Court,
here he challenged the constitutionality of the provision but only in a
limited scope. Only the constitutionality of the latter part was put into
question which absolves the wife of any liability and that she can’t even be
held as an abettor. This provision was contended to be violative of art.14
and 15. But the constitutionality of the provision was confirmed by the
high court and later again in the apex court, as such discrimination was
protected under art. 15(3) of the constitution. And the crime as a whole
wasn’t even looked into.
This case was very important as it was somewhat a precedent on the
similar lines of the current PIL and was cited to show the judicial journey
of the crime of adultery.
2. Sowmithri Vishnu v. Union of India26
The next case in the adultery journey where the constitutionality of the
provision was challenged in a complete sense for the first time. The
dispute arose from divorce proceedings of a couple where the wife was
accused of desertion and adultery when the wife challenged the
constitutionality of the section 497 itself. Even in the 1980s the court build
up on the same notion that the man is the seducer by default and women
can’t be one. Further, the court said that making the provision gender-
neutral is the work of legislature not judiciary and also the court can’t
invalidate or repeal a law only because it seems undesirable that is again
the legislature’s job and the court would only interfere when the

25
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930.
26
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137.

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constitution has been infringed, which according to the apex court wasn’t
in the case of adultery. Thus, it was not strike down.
This case was cited to show the progression in the judiciary with respect to
the crime of adultery.
3. V. Revathi v. Union of India27
Once again, the constitutionality of section 497 came into question when
the two-judge bench heard the similar petition in 1988. Here the court
reiterated and heavily relied on the Sowmithri Vishnu judgement and
upheld the constitutionality of the said provision. The courts
logic/reasoning this time was from the contentions of the petitioner itself.
It was contended that the wife can’t do anything in case of an adulterous
husband and thus it violates article14 of the constitution. But the court
said, the wife can’t prosecute an adulterous husband but the vice-versa
also isn’t possible i.e. even the husband cannot prosecute an adulterous
wife thus the provision is valid and doesn’t violate art. 14 and hence
constitutional.
This was the last case which discussed constitutionality of adultery before
this immediate petition and thus was crucial to mention.
4. W. Kalyani v. State Thro' Inspector of Police and Anr.28
This is the latest case in Indian Adultery jurisprudence and thus was
necessary to mention though it did not question validity of the said
provision but it pondered upon the question of women being the property
of the man according to this provision but still didn’t answered it
completely and the court simply reiterated from the previous cases and
didn’t comment upon the constitutionality of the provision.
5. Central Board of Dawoodi Bohra Community and Anr. v. State of
Maharashtra29
Here the apex court decided and explained some rules relating to the
matters of precedents and lower and high benches of the same Supreme

27
V. Revathi v. Union of India, (1988) 2 SSC 72.
28
W. Kalyani v. State Thro' Inspector of Police and Anr., (2012) 1 SCC 358.
29
Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra, (2005) 2 SCC 673.

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Court. It stated that a lower bench cannot dissent from an already

established precedent of a higher bench the only thing the bench can do is
to refer the case to a higher bench via the CJI.
This case was cited by Chief Justice Dipak Mishra to establish and shoe
how did the current PIL reached the constitutional bench.
6. Shayara Bano v. Union of India and Ors.30
This case is cited multiple times in all the opinions as it deals with an
important cornerstone of this case i.e. the doctrine of Manifest
arbitrariness. The Shayara Bano case was the recent triple talaq judgement
where the court invalidate the practice of triple talaq in the Muslim
community on the ground of it being arbitrary and gender discriminatory
and thus in contravention of article 14 of the constitution. Further, this
case gave rise to a doctrine of Manifest Arbitrariness i.e. when a provision
or any state of affair that is arbitrary and in direct contravention of article
14 it must be struck down by the supreme court, even though it was a
previously practised job of the court it still was first stated as a doctrine in
the Shayara Bano case for the first time.
7. Arun Kumar Agrawal and Anr. v. National Insurance Co. Limited and
Ors.31
“The issue related to the criteria for determination of compensation
payable to the dependents of a woman who died in road accident. She did
not have a regular income. Singhvi, J. rejected the stand relating to
determination of compensation by comparing a house wife to that of a
house keeper or a servant or an employee who works for a fixed period.
The learned Judge thought it unjust, unfair and inappropriate.”32
The case was cited in order to portray the image and position of women in
the contemporary society in order to establish the shortcomings of §497
with respect to article 21.
8. Pawan Kumar v. State of Himachal Pradesh33
30
Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1.
31
Arun Kumar Agrawal and Anr. v. National Insurance Co. Limited and Ors., (2010) 9 SCC 218.
32
¶ 25, Joseph Shine v. Union of India, AIR 2018 SC 4898.
33
Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780.

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The court held “male chauvinism”, “egoism” and so-called “masculinity”

as a threat to the rights and dignity of women.
It was cited to weigh in the fact that dignity of women is something the
court has and will protect till the time it exists.
9. Voluntary Health Association of Punjab v. Union of India34
The issue of female foeticide was taken up by the court and it reprimanded
the govt. for the non-compliance and misuse of “Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act,1944”.
While doing so the court also stated that women have to be regarded as
equal partners in the lives of men and it has to be borne in mind that they
have equal role in the society, that is, in thinking, participating and
leadership.
This case was thus citied to show the plight of women and to show that
such plight and ill treatment has been cured by the judiciary and also to
take the court’s previous stance of women in the society and families into
account.
10. K.S. Puttaswamy and Anr. v. Union of India and Ors.35
This is the landmark judgement in Indian Right to Life jurisprudence. In
this case the apex court considered the right to privacy as a fundamental
right which comes under the preview of Right to Life under article 21.
There was an immense stress placed on the Dignity of an individual and
how the govt. or for the fact no one can overrule or infringe.
This case was cited in order to emphasise the point of human dignity
which is an essential part of article 21 and also to show that such acts of
sexual affairs are the private discourse of the individuals and the state has
nothing to do with them.
11. Government of A.P. v. P.B. Vijayakumar36
Here a challenge was made to Sub-rule (2) of Rule 22-A of the Andhra
Pradesh State and Subordinate Service Rules, which gave women a

34
Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 1.
35
K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.
36
Government of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520.

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preference in the matter of direct recruitment. When the court affirmed the
legislation and also perpetuated the origin and purpose of art.15(3) which
was to merge women into mainstream society and remove the patriarchy
and make the society a more inclusive and accepting of women as equal to
men.
This case was mentioned as a precedent to show that art.15(3) can’t be
used to affect women adversely as it was never intended as such by the
framers and the overall context of the provision is to positively
discriminate against women.
12. Union of India v. Elphinstone Spinning and Weaving Co. Ltd.37
The court said, “When the question arises as to the meaning of a certain
provision in a statute it is not only legitimate but proper to read that
provision in its context. The context means the statute as a whole, the
previous state of law, other statutes in pari materia, the general scope of
the statute and the mischief that it was intended to remedy”38.
This case was again used to show that art.15(3) can’t be used to make
women hostage.
13. Anuj Garg v. Hotel Association of India39
The Court struck down Section 30 of the Punjab Excise Act, 1914 which
prohibited the employment of women in premises where liquor or other
intoxicating drugs were consumed by the public. Holding that the law
suffered from “incurable fixations of stereotype morality and conception
of sexual role”, the Court took into account “traditional cultural norms as
also the state of general ambience in the society” and held that “no law in
its ultimate effect should end up perpetuating the oppression of women.”
And thus, was cited to yet again show how the court has come to aid for
the women when they needed it and it would never allow any act or
provision to make women suffer because of pre-conceived notions of
gender-roles.

37
Union of India v. Elphinstone Spinning and Weaving Co. Ltd., (2001) 4 SCC 139.
38
Id.
39
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.

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B. FOREIGN JUDGEMENTS
1. Pritchard v. Pritchard and Sims40
In this case the history of Adultery under the English common law was
explained, and thus was important to mention in an endeavour to
understand what adultery is, and how did it come into being.
2. R. v. Mawgridge41
The court held, “man is taken in adultery with another man's wife, if the
husband shall stab the adulterer, or knock out his brains, this is bare
manslaughter: for Jealousy is the Rage of a Man and Adultery is the
highest invasion of property”42.
This case was cited to show the mentality of the society way back in early
1700s which considered the wife as a property of the husband.
3. James Sibongo v. Lister Lutombi Chaka and Anr.43
In this judgement the supreme court of Namibia discussed and decided
upon the need of criminalizing the act of adultery. It mainly works on the
argument of whether criminalizing it actually deters the commission of
such acts. The court sound the answer in negative and thus in accordance
to other contentions as well it struck the provision criminalizing the act of
adultery.
This is a very recent case (2016) and thus became extremely important to
make note of in the current judgement.
4. Case No: 2009Hun-Ba17, (Adultery Case).44
Here the south Korean constitutional court set aside the criminalizing
adultery section from their penal code and set an international precedent in
women’s rights. The court touched upon various aspects such as
deterrence effect, individual privacy and legitimate legislative interest in

40
Pritchard v. Pritchard and Sims, [1966] 3 All E.R. 601, [UNITED KINGDOM].
41
R. v. Mawgridge, (1707) Kel. 119, [UNITED KINGDOM].
42
Id.
43
James Sibongo v. Lister Lutombi Chaka and Anr., (Case No. SA77-14) [SUPREME COURT OF
NAMIBIA].
44
Case No: 2009Hun-Ba17, (Adultery Case), [SOUTH KOREA].

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promoting monogamous marriages and held that individual sexual

autonomy far outweighed the interest of the state and thus struck it down.
This judgement was again a very recent one and was cited to show the
changing perspectives over the globe about women’s rights.
5. DE v. RH 45
The South African Constitutional Court held that an aggrieved spouse
could no longer seek damages against a third party in cases of adultery.
Thus, the case was cited as it also disregarded the fact that even
considering it as a tort would imply that the wife is the property of the
husband.

45
DE v. RH, [2015] ZACC 18, [SOUTH AFRICA].

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JUDGEMENT

 In Personam [CONCRETE JUDGEMENT]

Not Applicable, as it was a Public Interest Litigation, moved in favour of the
society at large not a private individual.
 In Rem [RATIO DECIDENDI]
The constitutional bench concurrently held that: -
1) “Section 497 lacks an adequately determining principle to criminalize
consensual sexual activity and is manifestly arbitrary. Section 497 is a denial
of substantive equality as it perpetuates the subordinate status ascribed to
women in marriage and society. Section 497 violates Article 14 of the
Constitution;”46
2) “Section 497 is based on gender stereotypes about the role of women and
violates the non-discrimination principle embodied in Article 15 of the
Constitution;”47
3) “Section 497 is a denial of the constitutional guarantees of dignity, liberty,
privacy and sexual autonomy which are intrinsic to Article 21 of the
Constitution;”48 and
4) Section 497 is Unconstitutional.

Apart from this verdict of Justice Chandrachud it was also clarified by Justice
Mishra and Malhotra that even if the definition of adultery changes to a gender
neutral one it should not be made criminally liable.

The corresponding procedural law § 198 Cr.P.C. was also held unconstitutional as
much as it was in accordance with § 497.

Also, Sowmithri Vishnu v. Union of India49 and V. Revathi v. Union of India50

were overruled by the constitutional bench.

46
J. Chandrachud, ¶ 153, Joseph Shine v. Union of India, AIR 2018 SC 4898.
47
Id.
48
Id.
49
Supra, see note 26.
50
Supra, see note 27.

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REASONING

The judgement had 4 concurring opinions as to why adultery is unconstitutional and why
did the constitutional bench decided to strike it down.

CHIEF JUSTICE DIPAK MISHRA (ON JUSTICE KHANWILKAR’S BEHALF)

Justice Mishra first cited the judicial history of adultery as a crime from Yusuf Abdul Aziz
to W. Kalyani and then proceeded onto to explain why adultery is inconsistent with the
Indian Constitution.
Justice Mishra cited the Shayara Bano case to establish the well worked principle
in the Indian Judiciary ‘The doctrine of Manifest Arbitrariness’. He found various
problems with the provision as such, first a fall it was gender-biased i.e. it only
talked about wife committing adultery which makes the third person liable as if he
has caused harm to the property of the husband, which is precisely what it was.
The section 497 portrayed or presented women as property of their husbands, this
claim is endorsed by the fact that if the husband allows his wife to have such
adulterous relationship the liability dissolves. Another aspect to look at was
section 198 of Cr.P.C. which allowed only the husband to move the criminal
proceedings in the case of adultery i.e. the husband was the ‘aggrieved’ person
which is once again preposterous and discriminatory as if the situation is vice-
versa the wife of the adulterer is not the ‘aggrieved’ person.
Then he cited a few cases relating to article 21 which go on to show that the
dignity and autonomy of women are specifically protected by article 21, special
focus was given to the Puttaswamy judgement, which enshrined that dignity and
privacy are fundamental rights guaranteed to the citizens by the constitution of
India. Along with dignity another point was proved of just reiterated that women
are no longer the chattel of men i.e. the men are no longer in charge of the
women’s decisions and choices, with respect to the said provision sexual choices.
Lastly, he argued whether it should be a criminal offence even after its definition
is made gender-neutral. The answer was no. As if it is made one it would be again

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in contravention of art.21 as it would offend the dignity of both the husband and
wife, and the privacy attached to a relationship between the two.
All these reasons led to the conclusion that the said provision was manifestly
arbitrary, denied women the basic dignity/autonomy a person is born with, as well
as being unjustly a criminal offence thus invalid with the inconsistent and
warrants to be struck down.

JUSTICE ROHINTON FALI NARIMAN

Justice Nariman first shed light upon the origins of the crime or the concept of
adultery being punishable, which are deep rooted in all the ancient and medieval
societies beginning from the Hammurabi's Code where death by drowning was
prescribed for the sin of adultery, be it either by the husband or the wife.
Later on, he went on to substantiate why does the act in unconstitutional and is
not supposed to exist in the contemporary society.
“In 1860, when the Penal Code was enacted, the vast majority of the population in
this country, namely, Hindus, had no law of divorce as marriage was considered
to be a sacrament. Equally, a Hindu man could marry any number of women until
1955. It is, therefore, not far to see as to why a married man having sexual
intercourse with an unmarried woman was not the subject matter of the offence.
Since adultery did not exist as a ground in divorce law, there being no divorce
law, and since a man could marry any number of wives among Hindus, it was
clear that there was no sense in punishing a married man in having sex with an
unmarried woman as he could easily marry her at a subsequent point in time. Two
of the fundamental props or bases of this archaic law have since gone. Post 1955-
1956, with the advent of the "Hindu Code", so to speak, a Hindu man can marry
only one wife; and adultery has been made a ground for divorce in Hindu Law.”
“Further, the real heart of this archaic law discloses itself when consent or
connivance of the married woman's husband is obtained-the married or unmarried
man who has sexual intercourse with such a woman, does not then commit the
offence of adultery. This can only be on the paternalistic notion of a woman being
likened to chattel, for if one is to use the chattel or is licensed to use the chattel by
the "licensor", namely, the husband, no offence is committed. Consequently, the

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wife who has committed adultery is not the subject matter of the offence, and
cannot, for the reason that she is regarded only as chattel, even be punished as an
abettor. This is also for the chauvinistic reason that the third-party male has
'seduced' her, she being his victim. What is clear, therefore, is that this archaic law
has long outlived its purpose and does not square with today's constitutional
morality, in that the very object with which it was made has since become
manifestly arbitrary, having lost its rationale long ago and having become in
today's day and age, utterly irrational.” Thus, it was in violation of article 14.
Further, through the Puttaswamy judgement he established how such a provision
which tantamount to breach of privacy and overall notion of women being
subordinate to men and being their chattel violates article 21 in greatest degrees
and thus the provision needs to be invalidated.

JUSTICE D.Y. CHANDRACHUD

Justice Chandrachud gave a very comprehensive and objective judgement, while
giving strong feministic arguments so as to explain why such a provision should
not find a place in contemporary world let alone be protected by the judiciary like
it has been on various occasions.
First, along with debunking the previous reasons and explanations as to why
adultery should persist as a crime, he also mentions the opinion of justice Chagla
in the Bombay High Court while hearing Yusuf Abdul Aziz he said, “Mr. Peerbhoy
is right when he says that the underlying idea of Section 497 is that wives are
properties of their husbands. The very fact that the offence is only cognizable with
the consent of the husband emphasises that point of view. It may be argued that
Section 497 should not find a place in any modern Code of law. Days are past,
when women were looked upon as property by their husbands.”51
Then after briefly explaining the history of the said provision around the world
and in the Indian Penal Code, he went on to explain the fallacies of the said
provision.
The main argument of his ruling was with the fundamentals of this provision. He
opined that this provision was to protect the sanctity of the marriage, but it very
51
Obiter Dicta, Justice M.C. Chagla, Yusuf Abdul Aziz v. State of Bombay, AIR 1951 Bom 470.

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conveniently overlooked the fact that such sanctity could also be breached by the
husband. It only criminalized the man who has sexual intercourse with a married
woman, with husband being ‘aggrieved’ in this situation. While when the husband
has sex with another woman, she is not held liable in any way, and neither is the
wife an ‘aggrieved’ party thus, the husband cannot breach the sanctity of a
marriage according to section 497. Upon these contentions only the provision falls
short of article 14,15 & 21 and portrays women are the properties of men, but the
limit of arbitrariness is reached when the later part is read i.e. if the husband
agrees to such intercourse no offence is made. The later part concretises the
opinions of justice Chandrachud as it clearly shows that the sexual agency of a
married woman is subject to the husband’s whims, depriving a woman of her
autonomy, dignity and privacy which clearly undermines the ethos of Indian
Constitution which aims at bridging all kinds of gaps between people of any and
all kind. Thus, Justice Chandrachud held section 497 of I.P.C. and section 198 of
Cr.P.C. unconstitutional as being violative of articles 14, 15 and 21.

JUSTICE INDU MALHOTRA

Justice Indu Malhotra started her decision by a mention of the infamous Doctrine
of Coverture’ which was used to address the origins of adultery in common law, a
thing worth mentioning is that In England, adultery has always been a civil
wrong, and not a penal offence, while in India it was always a penal offence from
the inception of the penal code. On the points of constitutional inconsistencies, J.
Indu’s judgement is quite similar to the other judges where she creates a
difference is when she talks about criminal liability in case the definition is
substituted with a gender-neutral one. She explains both sides, considering family
the basic unit of a society and thus the protection of its sanctity having a
legitimate legislative interest. On the other hand, considering the sexual choices of
two consenting adults a matter of their choice and personal affair, thus protecting
their dignity, privacy and free choice. Pondering upon both the arguments, Justice
Indu sided with protection of privacy, dignity and self-expression. Another, point
she made was ‘when civil remedy is enough there is no need of a penal
sanction’. Thus, suggesting that even after a gender-neutral criminalizing such

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sexual acts would be counterproductive and apposite of a transformative and

progressive Judiciary.

CRITICAL ANALYSIS AND CONCLUSION

“Our Constitution is a repository of rights, a celebration of myriad freedoms and liberties.

It envisages the creation of a society where the ideals of equality, dignity and freedom
triumph over entrenched prejudices and injustices. The creation of a just, egalitarian
society is a process. It often involves the questioning and obliteration of parochial social
mores which are antithetical to constitutional morality. The case at hand enjoins this
constitutional court to make an enquiry into the insidious permeation of patriarchal values
into the legal order and its role in perpetuating gender injustices.” 52 Justice Chandrachud
set the stage of his judgement while stating this fact so as to show the basic nature and
motive of the Indian Constitution upon which the case was to be adjudged.
“This decision can be observed as an impeccable one, especially in line with rights of
woman of this country. Years of patriarchy, gender indifferences and other factors, have
contributed to woman always being oppressed and considered beneath to that of men.
This leads to physical, mental and psychological agony or harm to women and is
inclusive of a whole range of acts that deprives a woman of her liberty, dignity and the
right to a peaceful life.”
Now, it is quite clear from the judgement that Section 497 is founded on the notion that a
woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. It
is based on Victorian notions of husband-relations which are no longer valid or accepted
in the current day society. The doctrine of coverture enshrines such values or laws where
all of the rights of women converge into their husbands as soon as they gey married.
While discussing the origins of adultery it is imperative to discuss its induction into the
Indian Penal Code from the very beginning. In the beginning only Lord Macaulay
suggested in his Draft Penal Code that adultery should only remain a civil wrong and
criminalization of it is not warranted. But the other law commissioners were adamant on
adding this provision as the y had the fear of natives resorting to illegal measures to exact
revenge onto such 3rd party: -

52
Justice D.Y. Chandrachud, ¶ 87, Joseph Shine v. Union of India [AIR 2018 SC 4898].

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“The backwardness of the natives to have recourse to the courts of redress in cases of
adultery, [Colonel Sleeman] asserts, ‘arises from the utter hopelessness on their part of
ever getting a conviction in our courts upon any evidence that such cases admit of;’ that
is to say, in courts in which the Mahomedan law is observed. The rich man...not only
feels the assurance that he could not get a conviction, but dreads the disgrace of
appearing publicly in one court after another, to prove...his own shame and his wife's
dishonour. He has recourse to poison secretly, or with his wife's consent; and she will
generally rather take it than be turned out into the streets a degraded outcast. The seducer
escapes with impunity, he suffers nothing, while his poor victim suffers all that human
nature is capable of enduring...The silence of the Penal Code will give still greater
impunity to the seducers, while their victims will, in three cases out of four, be murdered,
or driven to commit suicide. Where husbands are in the habit of poisoning their guilty
wives from the want of legal means of redress, they will sometimes poison those who are
suspected upon insufficient grounds, and the innocent will suffer.”53
Another thing important to notice is “Underlying Section 497 is a gender stereotype that
the infidelity of men is normal, but that of a woman is impermissible. In condemning the
sexual agency of the woman, only the husband, as the 'aggrieved' party is given the right
to initiate prosecution. The proceedings once initiated, would be geared against the
person who committed an act of 'theft' or 'trespass' upon his spouse. Sexual relations by a
man with another man's wife is therefore considered as theft of the husband's property.
Ensuring a man's control over the sexuality of his wife was the true purpose of Section
497.”54 “Fidelity of the woman, and the husband's control over it, is seen as maintaining
the 'property' interest of a husband in his wife.”55
What is clear from a general look at the ingredients of this offence is that the adultery is
not committed by a married man who has sexual intercourse with an unmarried woman or
a widow. Also, he does not commit the offence of adultery if a man has sexual
intercourse with a married woman with the consent or connivance of her husband. The
woman's consent to commit adultery is material only to demonstrate that the offence is
not another offence, namely rape. Which is very grave for a society like ours.

53
Supra, see note 24.
54
Supra, see note 52.
55
Supra, see note 17.

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The last thing to look into is the reason as to why such a law was still acceptable in our
society was the protection of the sanctity of the marriage. But the law has failed on that
notion too as such sanctity could also be breached by the husband by sleeping around but
such a scenario isn’t considered by the Indian legislature maybe because the notions of
patriarchy are so deep rooted, they are inseparable from the nexus of their reasoning.
The other spectrum or effect of this judgement is seen by mainly traditional and
conservative men who are now observing high rates of infidelity and an increasing issue
of Paternity Fraud. While these are still genuine concerns, they can no way be shifted
onto the govt. or the judiciary as protection of a marital bond may very much be in their
interest but still it can’t be denied that adultery happens due to personal/private reasons in
a marriage, most of the times infidelity is the direct consequence of a failed marriage and
thus the legislature can’t be expected to always protect a family due to their own
fallacies. Also, the fact that a more progressive and transformative judiciary should not
criminalize such an act of immense intimacy and private sphere of an individual’s life.
Just as all conduct which is not criminal may not necessarily be ethically just, all conduct
which is inappropriate does not justify being elevated to a criminal wrongdoing.
After all the deliberation and discussion, the researcher for one thinks it is a very
welcome judgement not only because it protects women from latent subjugation or it
strikes off arbitrary, ill-thought laws of imperial Britain but also now it protects the third
party in such instances, the paramour of the wife to be precise. This point is not quite
discussed in the judgement. In such cases of adultery even if the woman was the seducer
(which is very low but nonetheless still exists in 21 st century) it was only the man’s fault,
a fault which warranted an imprisonment extending up to 5 years. The provision failed
those men who were lured into such relationships as the wife wasn’t even supposed to be
an abettor not to mention all the fake allegations and misuse such gyno-centric entail.

Thus, it is a very welcome judgement on all aspects as this kind of judgment brings a ray
of fresh hope to women who have been suffering from time immemorial. It is step
forward in protecting the rights and dignity of women.
And now it only is a ground for divorce for both the husband and wife in family courts.

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