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 PIL before the Supreme Court challenging Section 497 of the IPC — which criminalised adultery. Section 497 IPC provided: if a man had sexual intercourse with the wife of another man without the husband's consent, the man was guilty of adultery punishable with up to five years' imprisonment. Crucially, the wife was not punishable as an abettor. The petitioner argued that Section 497 was unconstitutional for multiple reasons: it treated women as property of their husbands, denied women agency over their sexuality, created discriminatory classifications between men and women, and violated the right to privacy and dignity.
Legal Issues Before the Court
- 1Is Section 497 IPC (adultery) unconstitutional as violating the right to equality under Articles 14 and 15?
- 2Does Section 497 IPC treat women as property of their husbands — violating the right to dignity and autonomy under Article 21?
- 3Is Section 497 IPC's exemption of the wife from criminal liability indicative of a patriarchal and paternalistic design?
- 4Should the earlier three-judge bench decision in Sowmithri Vishnu (1985) — which had upheld Section 497 — be overruled?
The Judgment
The Constitution Bench unanimously struck down Section 497 IPC as unconstitutional. All five judges wrote separate concurring opinions. The Court held: (1) Section 497 is manifestly arbitrary and violates Article 14 — it treats a husband as the aggrieved party (not the wife) and treats the wife as having no agency; (2) it violates Article 15 — it discriminates on the basis of sex by treating women as incapable of consenting to or being responsible for their sexual choices; (3) it violates Article 21 — it denies women their dignity, autonomy, and the right to make intimate choices; (4) a woman is not the chattel of her husband — she cannot be treated as property whose 'use' by another man is a wrong against the husband. Sowmithri Vishnu (1985) was overruled. Adultery is no longer a criminal offence in India — though it may be grounds for divorce.
Key Principles Laid Down
ADULTERY IS NO LONGER A CRIMINAL OFFENCE IN INDIA: Section 497 IPC has been struck down entirely as unconstitutional. Consensual sexual relations between adults — even if one is married — do not constitute a criminal offence under Indian law. However, adultery remains a ground for divorce under personal laws.
WOMEN ARE NOT PROPERTY OF THEIR HUSBANDS: Section 497's design — treating the husband as the 'victim' of another man's sexual relations with his wife — reflects a patriarchal conception of women as property. The Constitution does not permit such a conception. Women are full persons with constitutional rights equal to men.
WOMEN'S SEXUAL AUTONOMY IS CONSTITUTIONALLY PROTECTED: Every woman has the right to make choices about her sexual life under Article 21's right to dignity and personal autonomy. Criminal law cannot take away or subordinate women's sexual agency to their husbands' interests.
SECTION 497 FAILS ARTICLE 15 — DISCRIMINATORY ON BASIS OF SEX: By treating only the man as criminally liable (the wife was not even an abettor) and by making the husband's consent a complete defence, Section 497 created a discriminatory scheme based on sex — impermissible under Article 15.
SOWMITHRI VISHNU (1985) OVERRULED: The earlier three-judge bench decision in Sowmithri Vishnu v. Union of India (1985) — which had upheld Section 497 — was overruled. The Court held that the 1985 decision had failed to apply the correct constitutional analysis.
BNS 2023 — NO REPLACEMENT FOR SECTION 497: The Bharatiya Nyaya Sanhita 2023 did not include any replacement for Section 497 IPC — consistent with the Joseph Shine ruling that criminalising consensual adult adultery is unconstitutional.
ADULTERY AS CIVIL WRONG: While adultery is no longer criminal, it continues to be relevant as a ground for divorce under the Hindu Marriage Act (Section 13(1)(i)), Special Marriage Act, and other personal laws. Joseph Shine decriminalises adultery but does not affect its status as a matrimonial wrong.
Impact on Indian Law
Joseph Shine (2018) decriminalised adultery in India — a Victorian-era law that had been on the books since 1860. The judgment is part of a broader constitutional movement — alongside Navtej Johar (Section 377) and the privacy judgment (Puttaswamy) — affirming sexual autonomy, dignity, and the right of adults to make intimate choices free from criminal sanction. The BNS 2023 reflects the Joseph Shine ruling by not including any replacement for Section 497. The case is also significant for its strong affirmation of women's constitutional equality and rejection of paternalistic gender stereotypes embedded in criminal law.
Frequently Asked Questions
Is adultery a crime in India after Joseph Shine?
No. The Supreme Court in Joseph Shine v. Union of India (2018) struck down Section 497 IPC — which had criminalised adultery — as unconstitutional. Consensual sexual relations between adults, even where one is married, are no longer a criminal offence in India. Adultery may however still be a ground for divorce under personal laws. The BNS 2023 did not include any replacement for Section 497.
Why was Section 497 IPC struck down?
Section 497 IPC was struck down because: (1) it treated women as the property of their husbands rather than as independent constitutional persons with agency; (2) it violated Article 15 by discriminating on the basis of sex — only the man was criminally liable; (3) it violated Article 21 by denying women's sexual autonomy and dignity; (4) it violated Article 14 as manifestly arbitrary — treating the husband as the wronged party rather than either spouse.