Joseph Shine v.

Union of India (2018)

Decriminalisation of adultery
(2019) 3 SCC 39, AIR 2018 SC 4898

CITATION Writ Petition (Criminal) No. 194 of

2017

APPELLANT Joseph Shine

RESPONDENT Union of India

BENCH/ JUDGE Chief Justice Deepak Mishra, Rohinton

Fali Nariman, A.M. Khanwilkar, D.Y.
Chandrachud, Indu Malhotra

DATE OF THE CASE 27 September, 2018

Fact of the Case

In 2017, Joseph Shine, an Indian citizen living in Italy, filed a petition in public interest under
Article 32 challenging the constitutional validity of Section 497 of the Indian Penal Code,
1860 (IPC) which dealt with the criminal offence of adultery and Section 198(2), Code of
Criminal Procedure 1973 (CrPC) which provided that no person other than the husband of a
person accused of adultery would be deemed to be aggrieved by the commission of an
offence under Section 497 or Section 498 of the IPC.

The Supreme Court struck down Section 497 of the IPC on the grounds that it violated
Articles 14, 15 and 21 of the Constitution. The five Judge Bench unanimously, in four
concurring judgments, held that the law was archaic, arbitrary and paternalistic, and infringed
upon a woman’s autonomy, dignity, and privacy. Section 198(2) of the CrPC which allowed
only a husband to bring a prosecution under Section 497 of the IPC was also struck down as
unconstitutional. This decision overruled the Court’s previous decisions in Yusuf Abdul Aziz
vs. State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India ((1985) Supp SCC
137) and Vishnu Revathi vs. Union of India ((1988) 2 SCC 72) where the constitutional
validity of Section 497 was upheld.

The various judgments discussed the developments in the right to privacy in some detail,
referring to K.S. Puttaswamy vs. Union of India ((2017) 10 SCC 1) to affirm the need to
protect sexual autonomy and the privacy of the matrimonial sphere. The Court held that while
there might be negative effects of the failure of parties to a marriage to be faithful to each
other, it would be left to the parties to decide how to proceed, whether by resorting to divorce
or otherwise, and introducing criminal sanctions would serve no purpose.

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.

■ Whether Section 497 of IPC is constitutionally valid?

■ Whether Section 198(2) of CrPC is constitutionally valid?
Arguments

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.

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.

Analysis of Joseph Shine v. Union of India : Sociological school of Law

The sociological school of jurisprudence, with its emphasis on the social context of law,
provides a compelling framework to analyze the Supreme Court's landmark judgment in
Joseph Shine v. Union of India. This judgment, which decriminalized adultery in India, can
be viewed as a significant step towards aligning the law with evolving societal norms and
values.

Key Sociological Insights:

1. Reflecting Societal Change:

The Court's decision to strike down Section 497 can be seen as a recognition of the changing
social dynamics in India. The traditional patriarchal norms that underpinned the law of
adultery have been increasingly challenged in recent decades. The judgment reflects a shift
away from these archaic norms towards a more egalitarian and individualistic understanding
of marriage and sexuality.

2. Protecting Individual Autonomy:

The Court's emphasis on individual autonomy, dignity, and privacy aligns with the
sociological perspective that law should protect individual rights and liberties. By
decriminalizing adultery, the Court acknowledged that individuals should be free to make
their own choices about their personal relationships, free from undue state interference.

3. Challenging Gender Stereotypes:

The judgment directly challenges the gender stereotypes that have historically underpinned
the law of adultery. The Court recognized that women are not mere property of their
husbands and that they have the right to make their own choices, including sexual choices.
This is a significant step towards dismantling the patriarchal structures that have oppressed
women for centuries.

4. Balancing Public and Private Interests:

The Court's decision to maintain adultery as a civil wrong, rather than a criminal offense,
reflects a delicate balance between public and private interests. While recognizing the
importance of protecting individual autonomy, the Court also acknowledged that marriage is
a social institution with certain societal implications. By limiting the legal consequences of
adultery to the private sphere, the Court has sought to minimize state intervention in personal
relationships.

Analysing the Joseph Shine Case Through Roscoe Pound's idea on Sociological school

Roscoe Pound, a prominent figure in the sociological school of jurisprudence, emphasized the
importance of law as a social institution and its role in addressing societal problems. He
believed that law should be interpreted and applied in a way that promotes social interests
and justice.

Pound's emphasis on balancing interests is also evident in this case. While adultery might be
considered a moral transgression, the court recognized that criminalizing it disproportionately
impacted women and infringed upon their privacy and autonomy. By decriminalizing
adultery, the court prioritized individual liberty while acknowledging the potential social
impact of marital infidelity.
The judgment recognizes the fundamental right to privacy and personal liberty, aligning with
Pound's emphasis on individual interests. The court's decision directly challenges archaic
societal norms that subjugate women and limit their autonomy. This reflects Pound's view
that law should adapt to societal changes and address evolving social needs. While the court
decriminalized adultery, it acknowledged the potential moral implications. This demonstrates
a careful balancing act between individual liberty and societal morality and the decision
reflects a shift in societal attitudes towards sexuality and marriage. Pound would likely argue
that law should evolve to accommodate changing moral standards, even if they may be
controversial. While not directly relevant to this case, Pound's concern for the security of
transactions could be considered in the context of marital relationships. The court's decision
may have implications for the stability of marriages, which could be seen as a potential
impact on transactional security. The court's decision to decriminalize adultery could
potentially reduce the burden on the judicial system, freeing up resources for more pressing
matters. This aligns with Pound's concern for efficient administration of justice.

Furthermore, Pound's focus on social engineering through law is relevant in this context. By
decriminalizing adultery, the court aimed to promote a more equitable and just society where
individuals, regardless of gender, are treated with dignity and respect.

Overall, the Joseph Shine judgment can be seen as a progressive step that reflects the
evolving social and moral landscape of India. By prioritizing individual autonomy and
challenging outdated norms, the court has demonstrated a commitment to social justice and
the principles of sociological jurisprudence.

Conclusion:

The sociological perspective provides valuable insights into the social and cultural context of
the Joseph Shine judgment. By recognizing the changing social norms and values, protecting
individual autonomy, challenging gender stereotypes, and balancing public and private
interests, the Court's decision represents a significant step forward in the evolution of Indian
law. It demonstrates that law can be a powerful tool for social change, reflecting and shaping
the values of a society. In conclusion, the Joseph Shine vs. Union of India case exemplifies
Pound's sociological approach to law. The court's decision to decriminalise adultery reflects a
recognition of the need for law to adapt to changing social values and promote individual
autonomy and social welfare.