CASE LAW -1

JOSEPH SHINE VS UNION OF INDIA

SUBMITTED BY –
ARJUN R PAIGWAR
ROLL NO – 13
COURSE -LLB 3YEARS
SEM – 2
CITATION - 2018 SC 1676
CASE TYPE – Civil Writ Petition
CASE NO – 194 of 2017
PETITIONER – Joseph shine
RESPONDENT – Union of India
CASE STATUS / DECIDED ON – 27 September 2018
STATUES REFERRED - Article 14,15, 21 of Indian constitution
Section 497 of Indian Penal code
Section 198 of Code of Criminal Procedure
CASES REFERRED - Yusuf Abdul Aziz vs. State of Bombay (1954) SCR 930
Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137
V. Revathi vs. Union of India (1988) 2 SCC 72
W. Kalyani vs. State through Inspector of Police and another (2012)
1 SC 358
BENCH – 5
JUDGES - Hon’ble Chief Justice of India Deepak Mishra
Hon’ble Justice A.M Khanwilkar
Hon’ble Justice Indu Malhotra
Hon’ble Justice D.Y Chandrachud
Hon’ble Justice R.F Nariman
FACTS – A writ petition was filed under Article 32 by Joseph Shine challenging the
constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of
Article 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the
provision for adultery to be arbitrary and discriminatory on the basis of gender. The petitioner
claimed that such a law demolishes the dignity of a woman.
ISSUE - Whether Section 497 of the IPC read with Section 198(2) of the CrPC violated
Articles 14, 15 and 21 of the Constitution of India.
ARGUMENT OF BOTH PARTY
PETITIONER - The Petitioner discussed several aspects of Section 497 that tended to
violate fundamental rights. It was argued that the law provided for a man’s punishment in
case of adultery, whereas no action against a woman was provided for. Under the Section, a
woman was not permitted to file a complaint against her husband for adultery due to the lack
of any legal provision to such effect. Further, he argued that women were treated like objects
under this law as the act was ‘criminal’ depending on the husband’s consent or lack thereof.
The Petitioner argued that the provisions were violative of fundamental rights granted under
Articles 14, 15 and 21 of the Constitution, due to their paternalistic and arbitrary nature. It
was submitted that since sexual intercourse was a reciprocal and consensual act for both the
parties, neither should be excluded from liability. The Petitioner further contended that
Section 497 of the IPC was violative of the fundamental right to privacy under Article 21,
since the choice of an intimate partner fell squarely within the area of autonomy over a
person's sexuality. It was submitted that each individual had an unfettered right (whether
married or not; whether man or woman) to engage in sexual intercourse outside his or her
marital relationship.
RESPONDENT - The Respondent argued that allowing individuals to have sexual relations
outside marriage would inevitably destroy the institution of marriage and thus, the provision
criminalising adultery was essential for maintaining the sanctity of marriage. It was submitted
that an act which outraged the morality of society, and harmed its members, ought to be
punished as a crime. The Respondent argued that the right to privacy and personal liberty
under Article 21 was not an absolute right and was subject to reasonable restrictions when
legitimate public interest was at stake. It was also argued that Section 497 was valid as being
a form of affirmative action in favor of women.
JUDGEMENT - The Supreme Court struck down Section 497 of the IPC as
unconstitutional, being violative of Articles 14, 15 and 21 and held that Section 198(2) of the
CrPC was unconstitutional to the extent that it was applicable to Section 497, IPC. This
judgment overruled several previous judgments upholding the criminalization of adultery. 
The Court held that Section 497 was archaic and constitutionally invalid as it stripped a
woman of her autonomy, dignity and privacy. It opined that the impugned provision resulted
in the infringement of a woman’s right to life and personal liberty by espousing an idea of
marriage that subverted true equality by applying penal sanctions to a gender-based approach
to the relationship between a man and a woman. It held that the exaggerated focus on the
aspect of connivance or consent of the husband translated to subordination of the woman.
The Court reaffirmed sexual privacy as a natural right under the Constitution.
It was further held that Section 497 disregarded substantive equality as it reaffirmed the idea
that women were not equal participants in a marriage, and that they were not capable of
independently consenting to a sexual act in society and a legal system that treated them as the
sexual property of their spouse. Therefore, this Section was held to be in violation of Article
14. The judges also held that Section 497 was based on gender stereotypes and in doing so,
contravened the non-discrimination provision of Article 15. Further, it was held to be
violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty,
privacy and sexual autonomy.
The Court noted that adultery remained a civil wrong and a valid ground for divorce and
although it was no longer criminalised. It stated that criminal offences were committed
against the society as a unit, while adultery fell under the umbrella of personal issues. In
treating adultery as a crime, the Court held that the State interfered with people’s personal
lives and crossed over into the private realm and subsequent to the act of adultery, the
husband and the wife should be allowed to make a mutual decision based on their personal
discretion.
OBITER DICTA - The offence relies on the notion of ladies being a property of husband
and adultery is taken into account to be a theft of his property because it says consent or
connivance by the husband wouldn’t make it an offence.
RATIO DECIDENDI - It was observed that, Section 497 protects women from being
punished as abettors. It enunciated that this provision is useful for girls, which is saved by
Article 15(3). Article 15(3) was inserted to shield the ladies from patriarchy and pull them out
of suppression. This text was aimed to bring them capable men. But Section 497 isn’t
protective discrimination but grounded in patriarchy and paternalism.

The dignity of a personal and sexual privacy is protected by the constitution under Article 21.
A girl has an equal right to privacy as a person. The autonomy of a private is that the ability
to form decisions on vital matters of life.

When the legal code was drafted the societal thinking regarding women was backward and he
or she was treated as a chattel but after 158 years the status of girls is up to that of men. Her
dignity is of utmost importance which can’t be undermined by a provision which perpetuates
such gender stereotypes.

CONCLUSION - The debate on the law of adultery in India may be unstoppable. The court
while declaring this law unconstitutional took a landmark step within the Indian legal history.

In the current scenario, equality and liberalism have confiscated the planet. There’s a desire
for legislative reforms to eliminate laws that are discriminatory against women.

Adultery not only discriminated between men and girls but also demeans the dignity of a
lady. This was inserted as an offence when society was stuffed with patriarchy and
paternalism.