Joseph Shine v. Union Of India

Legal Principle:

The Court struck down Section 497 of IPC, 1860, which criminalized adultery and Section 198(2) of the CrPC, 1973, which engrafted the procedure, as unconstitutional.

Related Provisions:

Section 497, IPC, 1860: Adultery.

{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.}

Section 198(2), CrPC, 1973: Procedure For Punishment Under Adultery.

{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 Indian Penal Code, 1860.}

Facts:

Joseph Shine, an Indian citizen residing abroad, filed a writ petition under Article 32 of the Constitution before the Supreme Court of India challenging the constitutional validity of Section 497 of the Indian Penal Code, 1860 (adultery) and Section 198(2) of CrPC, 1973, being violative of Article 14, 15 and 21 of the Constitution which guarantee equality, non-discrimination and protection of life and liberty. The petitioner argued that the provisions are arbitrary and discriminatory on the basis of gender and reflects a patriarchal notion that treated a married woman as the property of her husband rather than as an autonomous individual.

Issues Raised:

• Whether Section 497 of the Indian Penal Code, 1869, is constitutional or not.
• Whether Section 198(2) of the Code of Criminal procedure, 1973, is constitutional or not.

Observations:

Dipak Misra, C.J.I. (for himself and A.M. Khanwilkar, J.):

Held Section 497, IPC as unconstitutional because it treated a married woman as the property of her husband rather than as an equal individual. The provision punished only the man who had sexual intercourse with a married woman without the husband’s consent, while excluding similar relationships involving unmarried woman or widows. This showed that the law protected the husband’s proprietary interest rather than the sanctity of marriage. He further held that Section 198(2) CrPC was arbitrary because it recognised only the husband as an aggrieved person and denied the wife an equal right to prosecute. This provision violated Article 14 due to manifest arbitrariness and Article 21 by undermining women’s dignity, autonomy, and personal liberty. Since the procedural provision depended on Section 497, it was to struck down.

Justice Rohinton Fali Nariman:

He agreed that Section 497 was unconstitutional, observing that its true purpose was not to preserve marriage but to protect the husband’s proprietary rights over his wife. Hoe pointed out that adultery involving an unmarried woman or a widow was not punishable and that the husband’s consent removed criminal liability, revealing the irrational nature of the provision. He held that the law was manifestly arbitrary, treated woman as chattel, and discriminated on the basis of sex, thereby violating Articles 14 and 15(1). He also declared Section 198 of CrPC unconstitutional.

Justice D.Y. Chandrachud:

He emphasised that sexual autonomy, dignity, and individual choice are integral to constitutional liberty. He held that Section 297 was based on a patriarchal view of marriage that denied women equal agency by making the husband’s consent decisive while ignoring the woman’s own choice. This violated Articles 14 and 21. He further held that Article 15(3) cannot justify laws founded on paternalistic stereotypes about women. Neither Article 15, nor Article 15(3) allow discrimination against women. While the state may criminalize conduct that harms human dignity, consensual adultery between adults does not fall within that category. Adultery may remain a civil ground for divorce but should not attract criminal punishment.

Justice Indu Malhotra:

Held that Section 497 was facially discriminatory because it denied women equal rights. While a husband could prosecute the man involved in his wife’s adultery, a wife had no corresponding right against her adulterous husband. She rejected the argument that the provision was protected under Article 15(3), stating that it was based on paternalistic assumptions rather than genuine protection of women. Although adultery may amount to a matrimonial wrong, she concluded that consensual sexual relationships between adults should not be criminalised. Accordingly, she agreed that Section 497 and the related procedural provision are unconstitutional.

Judgement:

The Court unanimously held that Section 497 of the Indian Penal Code, and Section 198(2) of the Criminal Procedure Code, violated the Articles 14, 15(1), and 21 of the Constitution which guarantees equality, non-discrimination, dignity and personal liberty, and therefore unconstitutional.