Joseph Shine v Union of India

*Joseph Shine v Union of India* (2018) is the judgment in which the Supreme Court of India unanimously struck down Section 497 of the Indian Penal Code, 1860 — which made adultery a criminal offence — as unconstitutional. The provision, which was paternalistic, gender-discriminatory, and treated a wife as her husband's property, was held to violate Articles 14, 15, and 21 of the Constitution. The ruling also struck down Section 198(2) of the Code of Criminal Procedure, which limited the right to prosecute for adultery only to the husband of the adulterous wife.

Background & Facts

Section 497 IPC made it an offence for a man to have sexual intercourse with the wife of another man without that husband's consent or connivance. The offence was punishable with up to five years' imprisonment. Notably: (1) the woman involved could not be punished as an abettor; and (2) the husband of the adulterous wife was the only person who could prosecute the offence — the wife had no legal standing to prosecute her adulterous husband.

Joseph Shine, a non-resident Indian from Kerala, filed a public interest litigation challenging Section 497. He argued that the provision was archaic, violated gender equality, and treated women as the property of their husbands rather than as autonomous individuals. The petition was referred to a Constitutional Bench because earlier Supreme Court decisions — in *Yusuf Abdul Aziz v State of Bombay* (1954) and *Sowmithri Vishnu v Union of India* (1985) — had upheld the provision, and a larger Bench was needed to reconsider those precedents.

Legal Issues

1. Is Section 497 IPC (adultery as a criminal offence) constitutionally valid?

2. Does Section 497 violate Articles 14, 15, and 21 of the Constitution?

3. Does the provision treat women as the property of their husbands, denying them autonomy and dignity?

4. Were the earlier decisions in *Yusuf Abdul Aziz* (1954) and *Sowmithri Vishnu* (1985) correctly decided?

Arguments

**Petitioner's Contentions:**

Joseph Shine and supporting intervenors argued that Section 497 was a Victorian-era provision that reflected a profoundly patriarchal worldview: that a wife is her husband's property, and adultery is a violation of the husband's property rights rather than a consensual act between adults. The provision was discriminatory because: (a) only the male partner in adultery was punished, not the woman; (b) the husband of the adulterous woman could consent to or condone the adultery, making the offence one against the husband's marital "property"; and (c) the wife had no right to prosecute her own adulterous husband. This was unconstitutional sex discrimination.

**Respondent's Contentions:**

The Union of India and some interveners argued that adultery, while perhaps not deserving criminal punishment in all cases, serves a social purpose — preserving the institution of marriage. The asymmetry in punishment (only the man is punished) was actually protective of women, not discriminatory against them. The provision should be retained, perhaps in a modified form that applies equally to both sexes.

Judgment & Reasoning

All five judges unanimously struck down Section 497 IPC and Section 198(2) CrPC. Five separate concurring opinions were written, all arriving at the same conclusion:

**Chief Justice Dipak Misra (lead judgment):** Section 497 treats women as the property of their husbands — adultery is punishable only with the husband's non-consent, making it an offence against the husband's "exclusive possession" of his wife. This is incompatible with constitutional values of dignity and equality. A wife is not a chattel; she is an equal partner in marriage with full autonomy over her own sexual choices. Section 497 must fall.

**Justice D.Y. Chandrachud:** Section 497 is a manifestation of the constitutional harm of coverture — the legal doctrine that a wife's identity is subsumed into her husband's. The provision denies a married woman the legal capacity to make autonomous choices about her own body and sexuality. This violates Article 21's guarantee of dignity and the right to privacy as recognised in *K.S. Puttaswamy* (2017). Moreover, the provision is discriminatory under Article 15 as it is based entirely on sex.

**Justice Indu Malhotra:** While agreeing that Section 497 is unconstitutional, Justice Malhotra cautioned that adultery as a civil wrong — a ground for divorce — can continue to be so recognised by family law. Striking down the criminal provision does not prevent parties from relying on adultery in matrimonial proceedings.

**Common Holdings of All Five Judges:**

- Section 497 treats women as less than full persons and as the property of their husbands — this is unconstitutional.

- A woman's sexual autonomy is protected by Article 21.

- The provision fails Article 14 (arbitrariness), Article 15 (sex discrimination), and Article 21 (dignity and autonomy).

- Earlier decisions (*Yusuf Abdul Aziz*, *Sowmithri Vishnu*) are overruled.

- Adultery may continue to be a ground for divorce (civil remedy) but is no longer a criminal offence.

Significance

**Decriminalisation of Consensual Adult Sexuality:** Along with *Navtej Singh Johar* (2018, which decriminalised Section 377 for consensual same-sex acts), *Joseph Shine* represents a significant judicial move toward respecting the sexual autonomy of adults and removing the State from the regulation of consensual adult sexual behaviour.

**Striking Down Victorian-Era Criminal Law:** Both Section 497 IPC and Section 377 IPC (in the context of Section 377) were remnants of Victorian colonial morality. The *Joseph Shine* ruling is part of the constitutional cleansing of archaic, discriminatory provisions.

**Affirming Women's Autonomy:** The ruling is a landmark statement that married women are autonomous individuals, not extensions of their husbands. The constitutional value of dignity and autonomy under Article 21 applies fully to married women's sexual choices.

**Civil Law Unaffected:** Adultery remains legally relevant as a ground for divorce under personal law. The ruling only removes it from the sphere of criminal law.

Key Takeaways

- **Section 497 IPC (adultery) was unanimously struck down** as unconstitutional — violating Articles 14, 15, and 21.

- The provision was held to treat wives as the **property of their husbands**, denying them dignity and sexual autonomy.

- Section 198(2) CrPC (limiting prosecution to the husband) was also struck down.

- Earlier decisions in *Yusuf Abdul Aziz* (1954) and *Sowmithri Vishnu* (1985) were overruled.

- Adultery can **still be used as a ground for divorce** (civil remedy) but is no longer a criminal offence.

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*This article is for informational and educational purposes only and does not constitute legal advice. For specific legal matters, please consult a qualified advocate.*