NAME- AKANKSHA BHATIA

COURSE- LLB
SECTION- C
The conception of the institution of marriage in Justice Chandrachud’s opinion in Joseph
Shine 
Introduction
Joseph Shine V. Union of India is a case of a writ petition filed against the adultery law because it is
unconstitutional and violative of Articles 14, 15 and 21 of the Indian Constitution. The bench of five
judges declared this provision unconstitutional by holding that this law is archaic, paternalistic and
arbitrary and infringes women’s liberty, autonomy, dignity and privacy. Now we will look at what Justice
Chandrachud has to say in the judgment in the context of marriage.

Critical Analysis
Justice Chandrachaud believed that Section 497 (Adultery) promoted a notion of marriage that does not
regard women and men as equal partners. This was the much-awaited judgment on the embarrassing
and archaic law deeply patriarchal in nature that wives are treated as chattels by their husbands, were
treated and possessions of men and not as women with sexual agency. Women were not given any
sexual freedom. This law looks down upon women and their sexuality and reduces them to the status of
commodities. One is left to wonder why a man having sex with any person other than a married woman
is not adultery, as if the woman is her husband's property and no other man shall trespass this property.
How does it protect the sanctity of marriage, or does it let men do what they want without touching
upon a married woman with clean chit?

The word Constitutional morality was used problematically by the judges as if it could solve any
problem. Bhim Rao Ambedkar coined this word in the last days of constitution-making in the context
that we are talking about the rule of law, but the rule of law is topsoil, but the undersoil is opposite in
the sense that we are feudal, caste-ridden. He has broken subjectivity in the constitution, not sure of
anything. He says no matter how good a constitution we give to the people, in the end, it's the people
who have to use it and run the country. Civil society can also become an evil society. Ambedkar talks
about constitutional morality in this sense as we are trying to make the impossible possible. This idea of
constitutional morality is very different from how the judges use it. They talk about constitutional
morality as a formula to transform the world.

Justice Chandrachud cites the Korean law of adultery which is the most complicated part of the
judgment. Korean law is entirely unrelated to the Indian law of adultery.
The judgment would have become great if there was a mention of Harm principle or criminalization.
Harm principle states that power should be exercised on any member of the society, against his will only
to prevent harm to others. The judgment does not mention overcriminalization and its non-
requirements. There is no discussion on too much criminalization in each aspect.

The judge mentions Catherine Mackinnon, a sex-negative feminist who states that every heterogeneous
sex is rape, and Ratna Kapoor, a sex positivist feminist, in the same judgment without any idea of them.
They are like the two ends of a river which can't be quoted in a single judgment.
 Justice Chandrachaud focuses on the pre-conceived notion of marriage. He said this is why the section
must go, and this was probably the best part of Justice Chandrachud’s judgment. He is not talking non-
sensical of seduction jurisprudence. Still, He is speaking literally about the structure and institution of
marriage and what is wrong with the provision by stating that 497 promoted a notion of marriage that
doesn't regard men and women as equal partners. It proceeds on the subjection of the woman to the will
of her husband. It subordinates the woman to inferiority, which violates her dignity, thereby violating
Article 14 and 21 of The Indian Constitution ( para 11 of judgment).

Justice Chandrachud, further in his judgment (para 25), talks about the status of women after marriage
and how they should be pure and untouched to be worthy of marriage. Even after their marriage, the
husband has sole ownership of her sexually, physically and mentally and how she was a man's 'marital'
entitlement. Only this man had exclusive sexual rights over this man. Justice Chandrachud argues that
we should only be governed by Constitutional morality and not by some antiquated notion of 19 th-
century morality.

Justice Chandrachud in (Para 29) judgment talks about sexual freedom in privacy, and all choices made
under marriage must be afforded protection. It is problematic because the judge doesn't know what he is
saying and what could be its possible repercussions. It is as if you can choose marriage and have
complete sexual autonomy in marriage. After this judgment, the question is whether all your sexual
decisions in marriage are allowed and protected and if you can sleep with anyone ( K.S. Puttaswamy v.
Union of India case privacy judgment) then, what sanctity of marriage? Is left. Will this institution be
marriage at all because the institution of marriage across the world limits the sexual freedom of
individuals? I don't think the judge is talking about marriage at all. The court has taken an interpretive
leap from adultery law as a violation of dignity and equality, and now they have spoken of adultery as a
constitutionally protected marital choice. The judge says that even in marriage, a woman has the
freedom to associate herself with any person of her choice, and she has to be afforded sexual privacy
(para 29). This judgment is absurd to me and appears to be an end of a marriage, but the judge is not
saying it is an end of the marriage. It is as if he is confused in his thoughts. The court implies recognizing

The word Constitutional morality was used problematically by the judges as if it could solve any
problem. Bhim Rao Ambedkar coined this word in the last days of constitution-making in the context
that we are talking about the rule of law, but the rule of law is topsoil, but the undersoil is opposite in
the sense that we are feudal, caste-ridden. He has broken subjectivity in the constitution, not sure of
anything. He says no matter how good a constitution we give to the people, in the end, it's the people
who have to use it and run the country. Civil society can also become an evil society. Ambedkar talks
about constitutional morality in this sense as we are trying to make the impossible possible. This idea of
constitutional morality is very different from how the judges use it. They talk about constitutional
morality as a formula to transform the world.

Justice Chandrachud cites the Korean law of adultery which is the most complicated part of the
judgment. Korean law is entirely unrelated to the Indian law of adultery.
The judgment would have become great if there was a mention of Harm principle or criminalization.
Harm principle states that power should be exercised on any member of the society, against his will only
to prevent harm to others. The judgment does not mention overcriminalization and its non-
requirements. There is no discussion on too much criminalization in each aspect.

The judge mentions Catherine Mackinnon, a sex-negative feminist who states that every heterogeneous
sex is rape, and Ratna Kapoor, a sex positivist feminist, in the same judgment without any idea of them.
They are like the two ends of a river which can't be quoted in a single judgment.
new kinds of marriage where sexual fidelity and monogamy are not the normative foundations. I feel as
if the judge is suggesting that the whole institution of marriage is against constitutional morality. The
judgment had to say something: abolish adultery because it is violative of Article 14 of The Indian
Constitution. Still, the judge has done something else which is beyond reasonable. He goes on to state
that all choices within marriage are accepted. Even adultery is a constitutionally protected right that is
beyond pathetic.

I am left speechless after this judgment. I very well appreciate the judgment that it has struck down the
age-old patriarchal law. Still, there was no need for him to touch upon or even talk of adultery in such a
fashion and give it constitutional protection. It is as if you are validating adultery as if there is nothing
wrong with adultery to sound modern.

On the one hand, the judge is quoting K.S. Puttaswamy v. Union of India and saying you have the
constitutional freedom to do anything in marriage. You have total sexual privacy in marriage. On the
other hand, the same judge in Para 56 of the judgment says that the sanctity of marriage is
constitutionally recognized. The judge is making two contradictory points in the same judgment leaving
the audience confused about what the judge wants to say. The institution of marriage in itself restricts
both the partner's sexual liberty. I think that the judge has forgotten this. That's why he is making such
illogical arguments. What he is conveying to us sounds like rhetoric feminism which gives unequal rights
to women and men. It grants women complete autonomy to have sex with whoever she likes in marriage
and leaves the man with no ground of relief. We don't want this type of feminism.

Conclusion
. Justice Chandrachud, in his judgment, wants to say that what happens within the four walls is private
and should be protected. Criminalizing adultery denies women the freedom to choose a sexual partner
even if she is married. Making adultery, an offence doesn't protect the sanctity of marriage but only
forces women towards emotional abuse. The judgment says that the woman has complete sexual

The word Constitutional morality was used problematically by the judges as if it could solve any
problem. Bhim Rao Ambedkar coined this word in the last days of constitution-making in the context
that we are talking about the rule of law, but the rule of law is topsoil, but the undersoil is opposite in
the sense that we are feudal, caste-ridden. He has broken subjectivity in the constitution, not sure of
anything. He says no matter how good a constitution we give to the people, in the end, it's the people
who have to use it and run the country. Civil society can also become an evil society. Ambedkar talks
about constitutional morality in this sense as we are trying to make the impossible possible. This idea of
constitutional morality is very different from how the judges use it. They talk about constitutional
morality as a formula to transform the world.

Justice Chandrachud cites the Korean law of adultery which is the most complicated part of the
judgment. Korean law is entirely unrelated to the Indian law of adultery.
The judgment would have become great if there was a mention of Harm principle or criminalization.
Harm principle states that power should be exercised on any member of the society, against his will only
to prevent harm to others. The judgment does not mention overcriminalization and its non-
requirements. There is no discussion on too much criminalization in each aspect.

The judge mentions Catherine Mackinnon, a sex-negative feminist who states that every heterogeneous
sex is rape, and Ratna Kapoor, a sex positivist feminist, in the same judgment without any idea of them.
They are like the two ends of a river which can't be quoted in a single judgment.
autonomy in marriage which is an absurd point, and adultery also is a constitutionally protected choice
that comes under the Right to privacy.

References

1) https://legaldesire.com/law-of-adultery-and-its-absurdity/
2) https://www.google.com/search?
q=joseph+shine+vs+union+of+india+judgement+pdf&sxsrf=AOaemvLGEWchbNCff1pWRrQpcG_
NJP7L3w
%3A1636451961199&ei=eUaKYfDOC8Daz7sPufW8qAk&oq=joseph+shine+vs+union+of+india+ju
dgment+&gs_lcp=Cgdnd3Mtd2l6EAEYATIGCAAQFhAeMgYIABAWEB46BwgAEEcQsANKBAhBGAB
QcVhxYIwNaAFwAngAgAGPAYgBjwGSAQMwLjGYAQCgAQHIAQjAAQE&sclient=gws-wiz
3) ( Part 11,25,29,56 of the Joseph Shine V. union of India judgment)
4) Class lecture on the law of adultery and Joseph Shine v. Union of India

The word Constitutional morality was used problematically by the judges as if it could solve any
problem. Bhim Rao Ambedkar coined this word in the last days of constitution-making in the context
that we are talking about the rule of law, but the rule of law is topsoil, but the undersoil is opposite in
the sense that we are feudal, caste-ridden. He has broken subjectivity in the constitution, not sure of
anything. He says no matter how good a constitution we give to the people, in the end, it's the people
who have to use it and run the country. Civil society can also become an evil society. Ambedkar talks
about constitutional morality in this sense as we are trying to make the impossible possible. This idea of
constitutional morality is very different from how the judges use it. They talk about constitutional
morality as a formula to transform the world.

Justice Chandrachud cites the Korean law of adultery which is the most complicated part of the
judgment. Korean law is entirely unrelated to the Indian law of adultery.
The judgment would have become great if there was a mention of Harm principle or criminalization.
Harm principle states that power should be exercised on any member of the society, against his will only
to prevent harm to others. The judgment does not mention overcriminalization and its non-
requirements. There is no discussion on too much criminalization in each aspect.

The judge mentions Catherine Mackinnon, a sex-negative feminist who states that every heterogeneous
sex is rape, and Ratna Kapoor, a sex positivist feminist, in the same judgment without any idea of them.
They are like the two ends of a river which can't be quoted in a single judgment.