Joseph Shine v. Union of India
Bench: Constitution Bench — 5 Judges (Dipak Misra CJ, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud & Indu Malhotra JJ)
Parties
Facts of the Case
Joseph Shine, a non-resident Indian, filed a Public Interest Litigation challenging the constitutional validity of Section 497 IPC (adultery) and Section 198(2) CrPC (which gave only the husband the right to prosecute for adultery). Under Section 497 IPC, a man who had sexual intercourse with the wife of another man with that man's consent or connivance was guilty of adultery — but the wife was explicitly exempt from punishment. The woman was treated as the property of her husband, not as an autonomous individual. The provision had survived earlier constitutional challenges in Yusuf Abdul Aziz (1954) and Sowmithri Vishnu (1985) on the basis that it was a special provision for women permissible under Article 15(3).
Legal Issues Before the Court
- 1Is Section 497 IPC (adultery) unconstitutional as violating Articles 14, 15, 19(1)(a) and 21?
- 2Does Section 497 treat a married woman as the chattel of her husband, denying her agency and dignity?
- 3Is the provision that only the husband (not the wife) can prosecute for adultery — and that the wife is never punishable even as an abettor — a form of sex discrimination?
- 4Should the earlier decisions in Yusuf Abdul Aziz (1954) and Sowmithri Vishnu (1985) be overruled?
The Judgment
A unanimous Constitution Bench struck down Section 497 IPC in its entirety and Section 198(2) CrPC to the extent it applied to adultery cases. All five judges wrote separate opinions, unanimously holding Section 497 unconstitutional. The Court held that Section 497 treated a married woman as the property of her husband — denying her sexual autonomy, dignity, and identity as an individual. It was paternalistic and archaic. The earlier decisions upholding Section 497 were overruled. Adultery was decriminalised — it may remain a ground for divorce but is no longer a criminal offence. The BNS 2023 does not contain an equivalent to Section 497 IPC — adultery has been completely decriminalised.
Key Principles Laid Down
ADULTERY TREATS WOMAN AS HUSBAND'S PROPERTY: Section 497 IPC was premised on the Victorian notion that a married woman is the property of her husband — her consent to the sexual act was irrelevant, only the husband's consent/connivance mattered. This premise is fundamentally incompatible with constitutional dignity and equality.
SEXUAL AUTONOMY IS A FUNDAMENTAL RIGHT: Building on Navtej Johar (2018) and Puttaswamy (2017), the Court held that a woman's right to make choices about her sexual life is part of her fundamental right to privacy, dignity, and personal liberty under Article 21. The state cannot use criminal law to police consensual adult sexual choices.
DISCRIMINATORY ON BOTH SIDES: Section 497 was discriminatory to women (treated as property, denied agency) and to men (only men could be prosecuted — the woman could not be punished even as abettor). This asymmetry was constitutionally incoherent.
ARTICLE 15(3) DOES NOT PROTECT ALL 'FAVOURABLE' PROVISIONS: Article 15(3) allows special provisions for women, but this only covers genuinely protective provisions. A provision that protects a woman not because it recognises her autonomy but because it treats her as incapable of moral culpability is not a protective provision — it is paternalistic and reinforces stereotypes.
OVERRULED YUSUF ABDUL AZIZ (1954) AND SOWMITHRI VISHNU (1985): Both earlier decisions upholding Section 497 were overruled. The Court noted that the constitutional understanding of women's rights, dignity, and autonomy had evolved significantly since those decisions.
ADULTERY MAY REMAIN A CIVIL/MATRIMONIAL WRONG: Decriminalisation does not mean the law approves of adultery. It remains a ground for divorce under personal laws. The Court simply held that the criminal justice system is not the appropriate instrument for regulating consensual adult sexual behaviour within or outside marriage.
BNS 2023 — SECTION 497 NOT REPRODUCED: The Bharatiya Nyaya Sanhita 2023 does not contain any equivalent to Section 497 IPC. Adultery is completely removed from Indian criminal law.
Impact on Indian Law
Joseph Shine ended 158 years of adultery as a criminal offence in India — a provision dating to Lord Macaulay's 1860 IPC. The judgment is a landmark in women's rights — recognising that married women are not the property of their husbands, have sexual autonomy, and are full constitutional persons with independent dignity. Read with Navtej Johar (2018) — decided by the same bench on the same day — the two judgments together represent the most significant decriminalisation of consensual adult behaviour in Indian legal history. The judgment also further developed the framework of constitutional morality (Navtej Johar) and intersectional discrimination analysis under Articles 14, 15, and 21.
Frequently Asked Questions
Is adultery a criminal offence in India after Joseph Shine (2018)?
No. The Supreme Court in Joseph Shine v. Union of India (2018) struck down Section 497 IPC — which criminalised adultery — in its entirety. Adultery is no longer a criminal offence in India. The BNS 2023 does not reproduce Section 497. However, adultery remains a ground for divorce under personal laws (Hindu Marriage Act, Muslim personal law, etc.).
Who could be prosecuted under the old Section 497 IPC and who was exempt?
Under the old Section 497 IPC, only the man (the 'adulterer') could be prosecuted — not the married woman. The woman was explicitly exempt from punishment as an abettor. Only the husband of the woman could prosecute — a wife had no right to prosecute her husband's extramarital partner under Section 497. This asymmetry — treating the woman as a passive subject rather than a moral agent — was one of the key grounds for striking down the provision.
What happened to Section 497 IPC under the BNS 2023?
Section 497 IPC was not reproduced in the Bharatiya Nyaya Sanhita 2023. The drafters of the BNS gave effect to the Joseph Shine (2018) judgment — adultery is completely removed from criminal law. Adultery may still be relevant in civil/matrimonial proceedings as a ground for divorce under applicable personal laws.