The term ‘adultery’ is derived from the French word ‘avoutre’, which evolved from the Latin word ‘adulterium’ which means ‘to corrupt'. Adultery is extramarital sex and is considered to be objectionable on the ground of social, religious, moral, and legal aspects. The article is a detailed analysis of the case of Joseph Shine v Union of India.
Case Name: Joseph Shine v. Union of India
Court: Supreme Court of India
Citation: 2018 SC 1676
Case Number: Writ Petition (Criminal) no. 194 of 2017
Petitioner: Joseph Shine
Respondent: Union of India
Date of Judgment: 27 July, 2018
Bench: Deepak Mishra, Justice A.M. Khanwilkar, Justice Indu Malhotra, Justice R.F. Nariman, Justice D.Y. Chandrachud
Table of Contents
Adultery is a criminal offense that makes a man liable for committing sexual intercourse with another person’s wife and this offense cannot be considered as adultery when sexual intercourse is done with the consent of her husband. The woman has no right to file a case of adultery against her husband. Earlier adultery was considered as sinful; it is committed by any gender. This law is criticized much because it is unconstitutional, discriminatory, and violates the right to live, and so on. The law evolves from many judgments as it creates in changing the social and moral values.
As per given in Section 497 of the Indian Penal Code, adultery is referred to as a criminal offense and prescribes the punishment of detention up to 5 years or more. This offense has a very limited scope as compared to the offense understood in the divorce proceedings. The offense committed by a man without the consent of another man and had sexual intercourse with his wife and the wife is not punished for being an adulterous or abettor of the offense. Section 497 of IPC does not give equal rights to men and women as women cannot prosecute her husband for adultery and women cannot be prosecuted for adultery.
As mentioned in Section 497 of IPC and Section 198(2) of Criminal Procedure Code together constitute being unconstitutional for the offense of adultery which is led in the Supreme Court case Joseph Shine v. Union of India in which women and men are treated unequally and they are not considered to be the same before the law.
According to Section 497 of IPC, adultery and according to Section 198 of CrPC, prosecution for offenses against marriage an adultery case should be filed earlier but this provision created a lot of complexities and needs to be amended for the protection of the law as it violates the right of the women and discriminates her from the men and it is referred to as unconstitutional.
Facts of the Case
In February, 2016, the revision brought by the Hon’ble President of India to the Indian Penal Code removed the archaic provision of the Code and “the IPC has undergone very few changes in the last one hundred fifty-five years. Very few crimes have been added to the initial list of crimes and declared punishable. Even now, there are offenses in the Code which were enacted by the British to meet their colonial needs. Yet, there are many new offenses which have to be properly defined and incorporated in the Code.” By seeing this the same in the view of, it is submitted that section 497 is also outdated and considered to be illegal as it violates the fundamental rights and should be updated.
In October, 2017, Joseph Shine, a non-resident from the state of Kerala, filed a PIL under Article 32 of the Constitution and this is the first PIL filed against adultery. The petitioner filed a case challenging the constitutionality of the adultery offense under section 497 of the IPC along with section 198(2) of the CrPC and also claimed for the violation of the right under Articles 14, 15, and 21. The petitioner claimed the provisions were discriminatory based on gender and such law demolishing the dignity of a woman. The constitutional bench of 5 judges was set up for the petition.
- Whether the provision for adultery is discriminatory as it violates the right given under Article 14.
- Whether the provision for adultery discriminates based on gender and violates the right given under Article 15.
- Whether Section 497 of IPC and Section 108 of CrPC together constitute to be unconstitutional.
- The petitioner addressed a certain problem with Section 497 and wanted it to be revised.
In the case “Sowmithri Vishnu vs. Union of India & Anr” “, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not provide the right to a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3 judge bench in this case also upheld the validity by stating that extending the ambit of offense should be done by the legislature and not by courts. The offense of breaking a family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men can commit such an offense.”
In the case “V. Revathi vs. Union of India”
“In this case, the court upheld the constitutional validity of Section 497 read with Section 198 by stating that this provision disables both wife and husband from punishing each other for adultery hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus it is reverse discrimination in ‘favor’ of her rather than ‘against her.”
Observation by the Court
It was observed by the court that adultery is a crime and should be treated as a crime and would be unwarranted in the eyes of law. The court recognized the privacy of sexual intercourse is a natural right and should be protected by the Constitution. The criminal law proceeds towards gender neutrality but according to this provision what we perceive is the discrimination of the rights of the constitution and the concept is wrong.
Judgment by the Court
The judgment delivered in this case was decided by the Judge of five benches. The main judgment was decided by the Chief Justice Deepak Mishra and Justice Khanwilkar. The Justice states that the wives are not the property of their husbands and also not the slaves of their husbands. After discussing the range of issues on the antiquity of the adultery to sexual and individual autonomy judgment delivered by Justice with legal, historical, and literacy anecdotes. “A constitutional court cannot remain entrenched in precedent for the controversy related to the lives of human beings who transcendentally grow” this leads to the delivery of the judgment by the Justice. Section 497 of IPC inclines women from the right to their privacy and dignity and the constitutional validity should be emphasized on freedom, dignity, and privacy. This section denies equality for women and is not able to give free consent for the sexual act in the legal order. Therefore, section 497 violates Article 14 of the Indian Constitution and it is discrimination of Article 15 of the Indian Constitution. This section also leads to the emphasis on the free consent of her husband and leads to the subordination of the women and it violates Article 21 of the Indian Constitution of India. It said adultery was often not the cause of an unhappy marriage but a result of it. Justice Nariman during the testing of Section 497 he observed that “we also tested the constitutionality of moral and societal regulation of women and their intimate lives through the law”.
Adultery is now not a criminal offense and no longer a crime committed against society as a whole whereas adultery is considered as a personal issue of a married couple. Adultery is not a crime whereas it invades the privacy of the married couple and it is considered a civil wrong and is valid on the ground for divorce. The judgment focuses based on equality of the women and women cannot be considered for the slave of their husband and should get equal status in the society and there should be no discrimination based on gender. Every woman should get the opportunity to put their stand forward and speak for herself.
The whole judgment points to the nature of section 497 and is considered to be discriminatory. As a result, it was declared to be section 497 as unconstitutional and violates Article 14, Article 15, and Article 21 of the Indian Constitution. And section 198 of CrPC contains the procedure for the prosecution to be unconstitutional and applicable for the offense under section 497.
The court struck down section 497 of IPC and considered that adultery is no more a criminal offense and is considered to be civil wrong and adultery is valid on the ground for the divorce. But the reason is not more convincing as adultery is no more a criminal offense than how it can be valid on the ground for the divorce. Criminal law is considered to be the guardian of all the laws and holds the moral principles of Indian society.
The judgment has taken a good initiative as it stuck between section 497 of IPC and section 198 of Cr. P.C as both sections are discriminative against the women based on gender and constitute to give unequal rights to the women. This provision is discriminatory for the woman in two ways firstly, it does not give the right to a woman to prosecute her husband if he commits adultery because he has given consent to his wife for the sexual intercourse, and secondly, women cannot be punished even if she is an abettor or either she commits the adultery.
This judgment brings many transformative ideas for giving justice. It leads to the anomaly in the relay of adultery law because adultery is no more a criminal offense and one cannot be punished on the ground of this offense and it is considered to be non-punishable. It also criticizes the judgment as it takes away the benefits of remedies from the partner whose other partner commits adultery. And this judgment also leaves an impact on the social values of the society like marriage and also the children born from such relationships or involved in any way for the matter of adultery.
The consequences have been seen by the judgment as the suicidal rate in a marital relationship increased day by day and the prosecution related to the abatement of suicide is taking place. Rather than strucking the provision, it should be balanced by amending the provision. Instead of strucking the provision, it should have been led down to prevent the wives from filing complaints against adultery.
Equality and liberalism are taking place all over the world and there is a need for legislation to abolish the law which is discriminatory against women. Adultery is become necessary in our country to get rid of it as it is not only the discrimination between men and women but also despise the dignity of the woman. Our society created a mindset that women should stay home and work in the kitchen and they do not have equal rights and opportunities as the men have in society. Married women did not have their own identity; she stood behind the identity of her husband and treated as property and always considered to be a slave for her husband and this reflected in the provision of adultery. But nowadays times have changed women have their own identity and she is no longer a property of any men. Adultery is no longer a criminal offense and considered to be a civil wrong and it is a private matter that the court should not interfere in the matter of adultery.
It should be kept in mind that abolishment of this provision does not mean that in the offense of adultery there should not be any legal consequences for committing adultery. Adultery takes place in civil law that’s why the remedies available for this offense can be brought by the civil court and it is no longer a matter for criminal court. The consequences of the matter should be facing civil law, not criminal law.
 The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.)
 V. Revathi v. Union of India, (1988) 2 SCC 72.
 Sowmithri Vishnu vs. Union of India & Anr. (1985) Supp SCC 137.
 V. Revathi vs. Union of India (1988) 2 SCC 72.
BY SWATI & SHUBHAM KUMAR DUBEY | INDORE INSTITUTE OF LAW