“JOSEPH SHINE V UNION OF INDIA”

ABSTRACT
“Ancient notions of a man being a perpetrator and woman being a victim no longer holds

good. The court cannot wait for legislation when the law has become arbitrary. It needs to be
struck down.” This was said by Justice Nariman while delivering the landmark judgment
which declared Section 497 0f Indian Penal Code, 1860 unconstitutional.
Adultery is probably one of the few issues that are dealt with everyday in connection with
controversies that arise from the rapid changes in the mentality of people. These days in
India, conservative perspective is no longer considered valuable as it was in the past.
Adultery is considered as invasion of husband’s right over his wife. “Ramayana” is about the
story where Sita was abducted by Ravan and she had to go through ‘Agnipariksha’ to prove
her modesty.
In today’s society where people are becoming open minded, such laws where women are
treated unequally and as mere chattels of their fathers (before marriage) and husbands, no
longer holds value. This study is on the landmark judgment that declared the age old law of
adultery unconstitutional.

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 INTRODUCTION
“Adultery can be ground for civil issues including dissolution of marriage but it cannot be a
criminal offence.”
Calling the law obsolete, the Justices of the Supreme Court propounded that, the law of
adultery violates Article 14 and 21 of the Indian Constitution, 1950 and consequently struck
down Section 4971 of Indian Penal Code, 18602 .
The culture of the society deserves kindness and honour to appreciate the individuality of a
woman. Dignity of each sex is important and hence domination of one sex over another must
be put down. As per the present day society, law of adultery is not only based on the
husband's right to fidelity of his "wife" but also treats "wife" merely as a chattel of her
husband3. It was argued that such a gender-discriminatory law of "adultery”, is contrary to
the spirit of the equality of status guaranteed under the Constitution of India.
Adultery according to the law was defined as an act of a married man having sexual
intercourse with a married woman whom he knows to be the wife of another man who did not
consent to the act. This act was punishable by law U/S 497 of Indian Penal Code, 1860 for
imprisonment with either description for a term up to five years, or with fine, or both.

BRIEF INSIGHT ON EMERGENCE OF LAW OF ADULTERY

There have been many instances in past where questions were raised on the constitutionality
of section 497 of Indian Penal Code and section 198 of Criminal Procedure Code, 19734.
It began with the case of Yusuf Abdul Aziz v. State of Bombay5. In 1951, Mr Yusuf Abdul
Aziz, charged with adultery, contended before the Hon’ble Bombay High Court that Section
497 of Indian Penal Code, 1860 is unconstitutional as it violates Articles 14 and 15 of the
Indian Constitution, operates unequally between a man and a woman by making only the
former responsible for adultery and thereby discriminates in favour of women and against
men only on the ground of sex. Recalling the historical background of Section 497 and the

1
“ Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the
wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to
the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not
be punishable as an abettor.
2
Act No. 45 of Year 1860”.
3
https://www.ebc-india.com/lawyer/articles/2001v6a3.htm
4
No.2 of 1974.
5
(1954) AIR SC 321.

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then prevailing social conditions and the unequal status of women, the High Court of
Bombay upheld the constitutional validity of the provision. One of the opinions held by the
Court in this case was that the alleged discrimination in favour of women was saved by the
provisions of Article 15(3) of the Constitution which permits the State to make "any special
provision for women and children".
In another case Sowmithri Vishnu v. Union of India6, three grounds were raised that Section
497:
(i) Confers upon the husband the right to prosecute the adulterer but it does not confer a
corresponding right upon the wife to prosecute the adulteress;
(ii) Does not confer any right on the wife to prosecute the husband who has committed
adultery with another woman, and
(iii) Does not take in its ambit the cases where the husband has sexual relations with
unmarried women.
It was further argued, that section 497 is a brazen instance of “gender discrimination” and
“male chauvinism” and in present day society with changed social transformation in feminine
attitudes and status of women in marriage, it holds no place. This argument was also set aside
by the Court, opining that it is the legislature that should consider modern day
“transformations” while making amendments to the disputed section referred herein.
In V. Revathi v, Union of India 7, Section 198(1) and Section 198(2), only empowers the
husband of the adulteress to prosecute the adulterer and does not empower the husband of the
adulteress to prosecute her or the wife of the adulterer to pursue any action against him. The
Court upheld the constitutionality of Section 497 of Indian Penal Code, 1860 and Section
198(2) Code of Criminal Procedure, 1973 which according to the Court "go hand in hand and
constitute a legislative packet" to deal with "an outsider" to the matrimonial unit who invades
the peace and privacy of the matrimonial unit.
Such judicial reasoning endorses patriarchal beliefs and gender biased penal laws of adultery.
W. Kalyani V. State Through Inspector Of Police And Another8, in this case section 497 is
criticised for a strong gender bias nature which makes a woman almost a property of her
husband and that only a man could be punished for being an adulterer and the woman cannot
be punished even as an abettor.

6
(1985) Supp SCC 137.
7
(1988) 2SCC 72.
8
(2012) 1 SCC 358

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However, the Supreme Court of India struck down section 497 of Indian Penal Code, 1860
and Section 198 of Code of Criminal Procedure, 1973 declaring the age old law of adultery as
unconstitutional in the landmark judgment of Joseph Shine v. Union of India9.

SUMMARIZED FACTS OF THE CASE

A non-resident Keralite, Joseph Shine filed a Public Interest Litigation under article 32 of the
Constitution of India challenging the constitutionality of Section 497 of Indian Penal
Code,1860 read with Section 198(2) 10 of Code of Criminal Procedure, 1973. The reason
behind this petition was that a close friend of the petitioner had committed suicide after a co-
worker falsely accused him of rape.
It was also contended that Section 497 is a dreadful occurrence of sexual unfairness and male
chauvinism and the traditional framework in which this section was drafted no longer exists
in present day modern society.

ISSUES
The Court in the aforesaid case through the petition dealt with the following disputed issues
which are laid as follows:
a) Section 497 violates Article 21: Right to Privacy of the Constitution of India
b) Section 497 infringes of Article 14 and 15 of the Constitution of India
c) Section 198(3) which provides for prosecution under Chapter XX of Indian Penal
Code, 1860 shall be unconstitutional to the extent of its applicability on law of
adultery.

ARGUMENTS ADVANCED
In favour of Petitioners
 The framework in which Section 497 was formulated is no longer relevant in
contemporary world.

9
(2018) SC 1676.
10
“For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be
aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the
absence of the husband, some person who had care of the woman on his behalf at the time when such offence
was committed may, with the leave of the Court, make a complaint on his behalf.”

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  Both the sections in dispute are arbitrary in nature.
 They violate Article 14 of the Indian Constitution as it does not provide right to
women to prosecute the adulterous husband. It infringes the requirement of equal
treatment.
 This section only penalises the adulterer and not the adulteress, when she is pari
delicto11, even for abetment.
 Under Article 21, “Right to Privacy” includes the right of two adults to enter into a
sexual relationship outside marriage. 12
 Any legislation that takes away the rights of women to prosecute their adulterous
husbands cannot be termed as “beneficial legislation” under Article 15(3) 13.
The consent of the woman is irrelevant to the offence14.
 It is totally discriminating that between the two people who engage in a sexual
relationship outside marriage, the man is considered a ‘seducer’ and the woman a
‘victim’.
 Section 497 does not include an extra marital relationship with an unmarried woman,
widow or a divorced woman.
 If the husband of the woman consents to the adulterous relationship between her wife
and another man, it would not constitute the offence of adultery.

 Section 198 of Code of Criminal Procedure Code, 1973 treats the husband of the
woman as deemed to be aggrieved by an offence committed under Section 497 Indian
Penal Code, 1860 and in the absence of husband, some person who had care of the
woman on his behalf at the time when such offence was committed with the leave of
the court. It does not consider the wife of the adulterer as an aggrieved person.

 497 fails to meet the three fold requirement for a restriction on Art 21 to be
reasonable and valid: legality, need and proportionality.15

11
In equal fault.
12
Shafin Jahan v. Ashokan K.M & Ors (2018 SC 343)
13
“Nothing in this article shall prevent the State from making any special provision for women and children”.
14
Kalyani v. State of Tr. Inspector of Police and Another (2012) 1 SCC 358
15
S Puttaswamy (Retd) & Anr v. U.O.I & Anr WRIT PETITION (CIVIL) NO 494 OF 2012

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In favour of Respondents:

 The opportunity to have a consensual sexual relationship outside marriage by a

wedded individual doesn't warrant insurance under Art 21. Right to security and
individual freedom isn't an outright right and it is dependent upon sensible limitations
when authentic open intrigue is included.
 Family is the central unit in the public eye, if the equivalent is upset it would affect
dependability and progress. The state along these lines has an authentic open
responsibility for protecting the organization of marriage.
 Though infidelity might be perpetrated in private it's anything but a harmless
wrongdoing. It damages the sacredness of marriage, the privilege of a companion to
conjugal devotion of their accomplice and breaks the essential unit of the family
influencing the development and prosperity of the kids, the family and the general
public by and large.

JUDGMENT

The Court struck down Sec 497 as unconstitutional being violative of Art 14, 15 and 21 of the
Indian Constitution and held that Sec 198(2) of Code of Criminal Procedure shall be
unconstitutional to the extent that it is applicable to Sec 497 Indian Penal Code. The husband
cannot be the master of the wife. A three judge bench headed by then CJI Dipak Mishra has
referred this petition to a five judge constitution bench which comprised of CJ Dipak Mishra,
and Justices R.F Nariman, A.M Khanwilkar, DY Chandrachud, and Indu Malhotra. The court
had observed that law is based on certain ‘Societal presumption’.
The judgment held that Section 497 disposes women from her self-rule, pride and security. It
is considered as the infringement to her right of life and individual freedom by tolerating the
idea of marriage which topples the genuine uniformity. Sexual autonomy falls within the
individual freedom under article 21 of Constitution of India. At the point when both the
partners regard each other with equity and pride only then the regard for sexual autonomy is
built up.
The contested section additionally denies the meaningful balance as it gives that women
cannot give her free assent for the sexual demonstrations in a lawful request which thinks
about them as a sexual property of their companion. Along these lines, segment 497 is
violative of article 14 of the Indian Constitution and it likewise disregards the non
discriminatory proviso of article 15 of the Constitution of India. This section likewise lays

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solid accentuation on the assent of the spouse which prompts the subjection of women.
Consequently it unmistakably damages the article 21 of the Constitution of India.

A crime is committed against the general public overall while infidelity is an individual issue.
Infidelity doesn't fit into the ambit of wrongdoing as it would some way or another attack the
outrageous protection sphere of marriage. In any case, infidelity can be considered as a
common wrong and is a legitimate ground for divorce/separation.

The judgment centers around the way that women should not be considered as the property or
an asset of their significant other or father any longer. They have equivalent status in the
society and ought to be allowed each chance to put their position forward.

In the entire judgment it was called attention to that nature of section 497 is manifestly
arbitrary. If the husband gives his consent for his wife to engage in extramarital relations with
some other individual, it doesn't fall under the ambit of the contested section. Consequently,
this doesn't secure the 'sacredness of marriage'.

The Court additionally took in thought the point given by The Malimath Committee on
Reforms of Criminal Justice System which recommended that Section 497 ought to be
reasonably corrected as "whoever has sex with the life partner of some other individual is
liable of infidelity". In June 1971, the 42nd report of the Law Commission of India inspected
different arrangements of Indian Penal Code, 1860 and recommended that ladies ought to be
made liable for indictment, and the punishment ought to be diminished from five years to two
years.

ANALYSIS/CONCLUSION
It is seen that the majority of the dynamic countries over the world have discarded the
criminal component of adultery. The issue being of private nature might be a common wrong
welcoming a marital case or a case in torts. Notice that the circumstance including adultery
may emerge because of despondent wedding life. It is smarter to leave the gatherings to their
private circle, which obviously is a basic right, giving them freedom to continue based on a
common wrong, in the event that they so like. Notwithstanding, the correctional law of
adultery in India is introduced on the hundred and fifty years old rank based separated "social

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setting". It is additionally started on a couple of obsolete and unsettled suspicions of
sexuality, sexual organization and inconsistent common conjugal rights and commitments of
the companions. It, in extreme investigation, undeniably means to ensure the privileges of the
spouse and not of the wife. It is likewise harnessed with profound established out of date
presumptions prevalently commenced on sex segregation and the spouse's sexuality. Such a
law in the 21st century without a doubt is by all accounts conflicting with the cutting edge
ideas of the status of women and the constitutional spirit of gender equality. During the post-
Indian Penal Code period, various Acts have been ordered to diminish women from the
traditional system of subordination and to assure them equal status with that of men.

In case of State of UP v. Deoman Upadhyaya 16 , the Supreme Court established that:-"In

considering the legality of a resolution on the ground whether it has given equivalent
treatment to all people likewise circumstanced, it must be recollected that the lawmaking
body needs to manage down to earth issues. The inquiry isn't to be decided by simply
specifying other hypothetically potential circumstances to which the resolution may have
been, yet has not been, applied."
The rationale of lawmaking body behind this is to ensure protection to the women. In view of
this explanation, while drafting another punitive code in 1847, the Law Commission
referenced the obligation of male wrongdoer. Be that as it may, it is on the prudence of the
governing body to choose what acts go under the wrongdoing and what act doesn't.
Adultery likewise influences the kids and related group of the culpable life partners and
casualty life partners. As separation is the main choice left, the offspring are abandoned. The
present judgment doesn't accommodate any solutions for those youngsters who are resulting
from such two-faced marriage.
Section 497 of Indian Penal Code, 1860 goes about as obstruction with the goal that the
miscreant doesn't carry out a similar offence again. The law comes up short for its
requirement yet it is fruitful in forestalling the adultery. Since India is a semi primitive
country, the settling on the idea of western nations is beyond the realm of imagination.

Established profound quality requires all the residents to follow the qualities propounded by
the Constitution. The Rule of Law happens to be the essential element of Constitution. In this

16
1960 AIR 1125

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manner the general public needs to gradually adjust to the norms as laid down by the Apex
Court.