JOSEPH SHINE

VS.

UNION OF INDIA

CASE DETAILS

Case Name- Joseph Shine v. Union of India

Case Number- Writ Petition (Criminal) No.: 194 of 2017

Petitioner- Joseph Shine

Respondent- Union of India

Bench- CJI Deepal Mishra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y.
Chandrachud, Justice I. Malhotra

CAUSE OF ACTION

• The Supreme Court in the judgements of 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) had upheld the Constitutional Validity of S. 497 of the
Indian Penal Code.
• When the constitutionality of the Section was challenged once again in front of the bench of
Justice Deepak Mishra, Justice A.M. Khanwilkar and Justice R.F. Nariman, the three judge
bench referred the case to a five judge constitutional bench to reconsider the upholding of
the section on the grounds of "social progression, perceptual shift, gender equality and gender
sensitivity". Another reason for said reference was the fact that one of the three judgements
were pronounced by a four-judge bench of the Apex Court.

STATUTES

• THE CONSITUTION OF INDIA, 1950:- Art. 14, 15 & 21

QUESTION/ISSUES

• Whether Section 497 is an excessive penal provision that needs to be criminalised?

Petitioner-

• 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
• Women were treated like objects under this law as the act was ‘criminal’ depending on the
husband’s consent or lack thereof. It was 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

Respondent-

• It was 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
• 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.

JUDGEMENT
Justice Deepak Misra (for himself and Justice A.M. Khanwilkar)-

Treating adultery as a crime was an intrusion into the extreme privacy of the matrimonial sphere. He
distinguished adultery from the demand for dowry, domestic violence, sending someone to jail for
non-grant of maintenance or filing a complaint for second marriage as the latter set of offences are
meant to sub-serve various other purposes relating to a matrimonial relationship. Criminalising
adultery, in his opinion, offended two facets of Article 21 of the Constitution, namely, the dignity of
husband and wife, and the privacy attached to a relationship between the two.
Justice D.Y. Chandrachud-

He discussed the ways in which adultery implicated the right to privacy by referring to the
jurisprudence of the US Supreme Court. He reiterated that misogyny and patriarchal notions of sexual
control of a woman found no place in our constitutional order which recognises dignity and autonomy
as intrinsic to a person. He referred to the case of Navtej Singh Johar vs. Union of India, (AIR 2018
SC 4321) to discuss the importance of sexual autonomy as a facet of individual liberty, to highlight
the indignity suffered by an individual when “acts within their personal sphere” were criminalised
on the basis of regressive social attitudes, and to emphasise that the right to sexual privacy was a
natural right, fundamental to liberty and dignity. In his judgment, Justice D.Y. Chandrachud also
referred to K.S. Puttaswamy vs. Union of India ((2017) 10 SCC 1) to emphasize that law must reflect
the status of women as equals in a marriage, entitled to constitutional guarantees of privacy and
dignity; and that a life of dignity entailed that the “inner recesses of the human personality” be
secured from “unwanted intrusion”. His judgment “dwelt on the importance of sexual autonomy as
a value which is integral to life and personal liberty under Article 21”. He held that Section 497
deprived a woman of her sexual freedom and denuded her of autonomy, dignity and privacy.
Justice R.F. Nariman-
He opined that Section 497 treated women as chattel and discriminated against them on the basis of
sex, and giving the same explanation for s. 198(2) of the CrPC, held it to be infirm as well. According
to him, the judgements upholding section 497 must be swept away (overruled) due to the expanded
scope of article 14, 15, and 21 via a barrage of recent judgements. He quoted Shayara bano’s case in
order to reiterate that one must wait for the law to change legislatively by way of social reform and
went on to state that Section 497 must be struck down due to it being manifestly arbitrary.
Justice I. Malhotra-
She opined that adultery should remain a civil wrong as the freedom to have a consensual sexual
relationship outside marriage by a married person did not warrant protection under Article 21.
However, in her opinion, the autonomy of an individual to make their choices with respect to their
sexuality in the most intimate spaces of life, should be protected from public censure through criminal
sanction. Thus, she held that Section 497 did not meet the three-fold test necessary for invasion of
privacy in the context of Article 21 laid down in the Puttaswamy case.

CONCLUSION
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. The Court noted that adultery remained a civil
wrong and a valid ground for divorce and although it was no longer criminalised. It stated that
criminal offences were committed against the society as a unit, while adultery fell under the umbrella
of personal issues. In treating adultery as a crime, the Court held that the State interfered with
people’s personal lives and crossed over into the private realm and subsequent to the act of adultery,
the husband and the wife should be allowed to make a mutual decision based on their personal
discretion.