Joseph Shine v. Union of India
Supreme Court of India · 27 September 2018 · 5 judges
The Constitution Bench unanimously struck down Section 497 IPC, which made adultery an offence, as violating Articles 14, 15 and 21, held Section 198 CrPC invalid in relation to adultery, and overruled Sowmithri Vishnu and V. Revathi.
Facts
Joseph Shine filed a writ petition under Article 32 challenging Section 497 IPC. Under that provision only a man could commit adultery, by intercourse with the wife of another man, and there was no offence if the husband consented or connived; the wife could not be punished even as an abettor, and relations with an unmarried woman or a widow were not covered. Section 198(2) CrPC deemed only the husband, or a person who had care of the woman on his behalf, to be aggrieved. A three-judge bench, noting Yusuf Abdul Aziz, Sowmithri Vishnu, V. Revathi and W. Kalyani, issued notice, observing that the provision prima facie treated the woman as subordinate and appeared archaic. The matter was then heard by a Constitution Bench, which examined the validity of Section 497 IPC and Section 198 CrPC.
Questions before the Court
- Does Section 497 IPC violate Articles 14, 15 and 21 of the Constitution?
- Is Section 198 CrPC, which treats only the husband as the person aggrieved by adultery, valid?
- Do Sowmithri Vishnu and V. Revathi, which upheld these provisions, remain good law?
What the Court held
- Section 497 IPC is unconstitutional and is struck down. It is manifestly arbitrary under Article 14: it treats the wife as the property of the husband, makes the offence vanish if the husband consents or connives, gives the wife no right to prosecute, and protects one woman but not another.
- Nariman, Chandrachud and Malhotra, JJ. also held that it violates Article 15. Chandrachud, J. found that it rests on gender stereotypes about the role of women, and all three held that Article 15(3) does not save it.
- Section 497 offends Article 21 by denying dignity, privacy and sexual autonomy. Treating adultery as a crime intrudes into the privacy of the matrimonial sphere; adultery may remain a civil wrong and a ground for divorce, but not an offence.
- Section 198 CrPC, the procedure for prosecuting adultery, falls with Section 497. Misra, CJI, Khanwilkar and Nariman, JJ. declared it unconstitutional; Malhotra, J. held Section 198(2) invalid only so far as it applies to adultery.
- Sowmithri Vishnu and V. Revathi are overruled. Nariman and Chandrachud, JJ. read Yusuf Abdul Aziz as deciding only the limited point that the wife is not punishable as an abettor.
Why it matters
The judgment decriminalised adultery in India and overruled Sowmithri Vishnu and V. Revathi. It applied the manifest arbitrariness test from Shayara Bano to a penal provision, rejected the view of the wife as the husband's property as inconsistent with equality and dignity, and placed sexual autonomy within marriage under Article 21. It also explains why a precedent may be revisited when constitutional interpretation of rights has moved on.
In the Court's words
Copied from the official judgment; each passage links to its page.
“If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.”
“We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.”
“Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.”
“We, therefore, declare that Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid.”
Provisions interpreted
Related judgments
- Follows Shayara Bano v. Union of India (2017)“That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors.” (page 94)
- Explains Yusuf Abdul Aziz v. State of Bombay (1954)“its ratio is an extremely limited one as it upheld a wife not being punishable as an abettor which is contained in Section 497, IPC.” (page 101)
- Follows Justice K.S. Puttaswamy v. Union of India (2017)“Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra)” (page 237)
Case and bench
- Parties
- Joseph Shine v. Union of India
- Case
- Writ Petition (Criminal) No. 194 of 2017
- Decided
- 27 September 2018
- Bench
- Dipak Misra, A.M. Khanwilkar, R.F. Nariman, Dr Dhananjaya Y Chandrachud, Indu Malhotra
- Opinions
- Unanimous. Dipak Misra, CJI wrote for himself and A.M. Khanwilkar, J.; R.F. Nariman, J., Dr D.Y. Chandrachud, J. and Indu Malhotra, J. wrote separate concurring opinions.
Questions on this case
8 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
Navtej Singh Johar v. Union of India (2018), which held Section 377 IPC unconstitutional in so far as it criminalised consensual sexual conduct between adults, expressly overruled:
- A. E.V. Chinnaiah v. State of Andhra Pradesh
- B. Suresh Kumar Koushal v. Naz Foundation
- C. P. Rathinam v. Union of India
- D. Sowmithri Vishnu v. Union of India
Show the answer
B. Suresh Kumar Koushal v. Naz Foundation
The Constitution Bench in Navtej Singh Johar held that Suresh Kumar Koushal v. Naz Foundation ((2014) 1 SCC 1), which had upheld Section 377 IPC in full, 'needs to be, and is hereby, overruled'. Sowmithri Vishnu was overruled in Joseph Shine (2018), P. Rathinam in Gian Kaur (1996) and E.V. Chinnaiah in State of Punjab v. Davinder Singh (2024).
Question 2 · Landmark Judgments Practice Set 1
Which of the following correctly states the holding in Joseph Shine v. Union of India (2018)?
- A. Section 497 IPC is unconstitutional, and adultery can no longer be a ground for the dissolution of a marriage
- B. Section 497 IPC is unconstitutional, though adultery may still be a ground for civil wrongs like divorce
- C. Section 497 IPC is valid, being a special provision for women protected by Article 15(3)
- D. Section 497 IPC is valid, but the wife can also now be prosecuted as an abettor of the offence
Show the answer
B. Section 497 IPC is unconstitutional, though adultery may still be a ground for civil wrongs like divorce
The Constitution Bench struck down Section 497 IPC as violating Articles 14, 15 and 21 and overruled Sowmithri Vishnu and V. Revathi. Dipak Misra CJ observed that adultery can be a ground for any kind of civil wrong including dissolution of marriage; what was rejected was treating it as a crime.