Joseph Shine v. Union of India (2018): How the Supreme Court Decriminalised Adultery Under Section 497 IPC

Citation: AIR 2018 SC 4898 | (2019) 3 SCC 39 | W.P. (Criminal) No. 194 of 2017

Decided: 27 September 2018

Bench: Five-judge Constitution Bench — CJI Dipak Misra (for himself and Justice A.M. Khanwilkar), Justice R.F. Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra Nature: Unanimous verdict delivered through four separate concurring opinions

Introduction

For 158 years, Section 497 of the Indian Penal Code made adultery a criminal offence. But it made it a crime only for men, and only for men who had sexual intercourse with another man's wife without his consent. The wife herself could not be prosecuted. She could not even file a complaint against her own husband. The only person who could file a complaint was the husband of the woman involved.

In a single, foundational question: whose property was the wife?

On 27 September 2018, the Supreme Court of India answered this question with a unanimous verdict delivered through four concurring opinions. Section 497 IPC was unconstitutional. It treated women as the property of their husbands. It denied them autonomy, dignity, privacy, and equality. It was an archaic Victorian law that had no place in a constitutional republic that promised equality and liberty to all.

For Civil Judge Exam and PCS J Exam aspirants, this case is essential. It covers Articles 14, 15, 19, and 21, the concept of constitutional morality, the doctrine of manifest arbitrariness, and the right to privacy (Puttaswamy). It also completes the landmark trilogy of 2017-2018: Puttaswamy, Navtej Johar, and Joseph Shine.

Background: Who Was Joseph Shine and Why Did He File This Petition?

Joseph Shine is a non-resident Indian from Kerala settled in Italy. He runs a hotel business there.

In 2017, a close friend and associate of his was falsely accused of rape. That experience, and the broader observation about how laws relating to sexual conduct were being weaponised against individuals, led Joseph Shine to examine Section 497 IPC closely. He found a law that was deeply and structurally discriminatory.

He filed a writ petition under Article 32 of the Constitution directly before the Supreme Court in 2017, challenging the constitutional validity of:

• Section 497 of the Indian Penal Code, 1860 (the adultery provision)
• Section 198(2) of the Code of Criminal Procedure, 1973, which provided that only the husband of the woman could be the complainant in offences under Section 497

A three-judge bench referred the matter to a Constitution Bench of five judges in view of the constitutional importance of the questions raised. The five-judge bench heard the case and delivered its judgment on 27 September 2018.

What Was Section 497 IPC?

Section 497 read:

"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."

Three deeply discriminatory features of this provision are immediately apparent:

First, only a man could be the accused. A woman who had an extramarital affair was not an offender under Section 497. Only the man she had the affair with was.

Second, the wife was explicitly exempted from prosecution "as an abettor." This seems like a protection. In reality, it reflected the assumption that the woman did not have the agency to participate. She was either seduced or coerced. She could not be a willing, autonomous actor.

Third, the husband was treated as the real victim. The provision did not protect the autonomy of the woman. It protected the marital interest of the man whose "property" had been used without his consent. If he consented to his wife's extramarital affair, there was no offence at all.

Section 198(2) CrPC compounded the discrimination by providing that only the husband could file a complaint. A wife could not complain against her own husband's extramarital affairs under this provision.

Note on BNS, 2023: The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC from 1 July 2024, does not reinstate adultery as a criminal offence. The Joseph Shine judgment remains the operative constitutional position. The BNS does not contain an equivalent to Section 497 IPC.

The Pre-2018 Precedents: All Upheld Section 497

The Supreme Court had been asked to examine Section 497 on multiple earlier occasions, and had upheld it each time. This makes the Joseph Shine judgment a landmark not just because of what it decided, but also because of what it overruled.

Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321)

A five-judge Constitution Bench upheld Section 497. It reasoned that Article 15(3), which allows the State to make special provisions for women and children, protected Section 497 from the charge of sex discrimination. A law that exempts women from punishment, the bench reasoned, was a beneficial law, not a discriminatory one.

Sowmithri Vishnu v. Union of India ((1985) Supp SCC 137)

A three-judge bench upheld Section 497 on multiple grounds. It rejected the challenge that the provision treated women as the property of their husbands. It also rejected the argument that a wife should be allowed to file a complaint against the woman with whom her husband had an affair.

V. Revathi v. Union of India ((1988) 2 SCC 72)

Another three-judge bench upheld Section 497, holding that the provision actually protected the husband-wife relationship and prevented outsiders from destroying it.

All three of these precedents were unanimously overruled in Joseph Shine.

The Legal Questions Before the Court

The five-judge bench framed the following central questions:

1. Is Section 497 IPC unconstitutional as violating Articles 14, 15, and 21 of the Constitution?

2. Does Article 15(3), which permits special provisions for women, save Section 497 from the constitutional challenge?

3. Is Section 198(2) CrPC unconstitutional?

4. Does the right to privacy under Article 21 (as declared in Puttaswamy) extend to sexual autonomy and the right to make intimate choices in marriage?

What the Supreme Court Held

The five judges unanimously agreed that Section 497 IPC was unconstitutional. They wrote four separate concurring opinions elaborating the constitutional basis.

CJI Dipak Misra (for himself and Justice A.M. Khanwilkar): Dignity, Autonomy, and Transformative Constitutionalism

CJI Misra's opinion rested on the foundation of dignity and autonomy as core constitutional values. He held:

• The Constitution is a transformative document that must be interpreted in light of evolving values of gender equality and individual liberty.
• Section 497 was premised on the assumption that a married woman is not an independent person but exists in a position of subordination to her husband.
• The provision treated the wife as the husband's property, because the offence was complete if the husband had not consented and non-existent if he had. The wife's own consent or refusal was legally irrelevant.
• This was a denial of the most basic constitutional promise: that every person, regardless of gender, is a full human being entitled to equality, dignity, and autonomy.
• Adultery can be treated as a civil wrong and a ground for divorce. It cannot be treated as a criminal offence.
• A criminal offence must be a wrong to society broadly. What happens between consenting adults within the privacy of a relationship is not a public wrong that the criminal law has any business regulating.

He also held that Section 198(2) CrPC was equally unconstitutional. When the substantive provision under Section 497 IPC is struck down, the procedural provision under Section 198(2) CrPC that gave only the husband the right to file a complaint must also fall.

For Judiciary exam preparation, landmark constitutional cases are essential. Shreya Singhal v. Union of India (2015) explains the legal limits on restrictions to free speech and the protection of fundamental rights. 

Justice R.F. Nariman: Article 14 and Manifest Arbitrariness

Justice Nariman held that Section 497 was manifestly arbitrary under Article 14. A law is manifestly arbitrary when it is capricious, excessive, or disproportionate to any legitimate aim.

Section 497 was based on the paternalistic notion of a "woman as chattel." The provision's logic was rooted in a proprietary view of marriage: the husband owned the wife, and adultery was theft of property.

Justice Nariman drew a comparison between bigamy and adultery. The offence of bigamy punishes the person who commits it — the bigamist. The adultery provision, by contrast, punished not the married woman or her husband but a third-party man, for encroaching on the husband's marital interest. This logic, of treating the wife as property to be protected, was constitutionally indefensible.

He also held that "sex" in Articles 15(1) and 15(3) includes "sexual orientation" and "sexuality" broadly interpreted, and that a law premised on the assumption of male dominance in sexual matters violated Article 15.

Justice D.Y. Chandrachud: Privacy, Patriarchy, and the Autonomy of Women

Justice Chandrachud's opinion is the most philosophically comprehensive. He situated the Section 497 challenge within the right to privacy declared in Puttaswamy and the transformative vision of the Constitution.

He held that:

• The concept of marriage as understood in Section 497 IPC was rooted in patriarchy. The offence was designed to protect the husband's interest in the exclusive "use" of his wife. This is not the constitutional understanding of marriage.
• The Constitution views marriage as a relationship between equals. A provision that gives the husband the power to determine whether his wife's extramarital relationship is criminal or not reduces the wife to an object, not a subject.
• Privacy under Article 21 encompasses intimate choices about one's body, sexuality, and relationships. Section 497 criminalised intimate choices — specifically, the choice of a married person to engage in a relationship outside marriage.
• The provision violated privacy by imposing the criminal law's most severe sanction (imprisonment) on conduct that occurs in the most private realm of human life.
• The argument that Section 497 "protected" women by exempting them from prosecution was a false paternalism. Protection that denies agency is not protection. It is subordination dressed as chivalry.

Justice Chandrachud used the phrase "constitutional morality" from the Navtej Johar judgment to hold that social morality, however widespread, cannot substitute for the values the Constitution demands.

Justice Indu Malhotra: Equality, Sexual Autonomy, and the Right to Choose

Justice Malhotra held that the bedrock of her concurrence was Article 21's protection of sexual autonomy. She stated:

• Sexual autonomy is an intrinsic part of liberty and dignity.
• Criminalising consensual sexual choices between adults violates the right to lead a life of one's choice.
• Section 497's assumption that women lack the agency to commit adultery is itself a form of constitutional discrimination. By exempting women from liability, the law treated them as incapable of independent sexual decision-making.
• The provision entrenched gender inequality in the most intimate sphere of life.

She held that Article 15(3) was not a shield for Section 497. Article 15(3) allows the State to make special provisions for women to remedy historical disadvantage. It cannot be used to maintain a discriminatory provision that treats women as subordinate to their husbands.

The Four Grounds of Unconstitutionality: A Summary

Adultery After Joseph Shine: What Changed, What Did Not

What Changed

• Adultery is no longer a criminal offence in India.
• No person can be arrested or prosecuted for adultery under Section 497 IPC, which is now void.
• All pending prosecutions under Section 497 stood dismissed from the date of the judgment.
• Under the BNS, 2023, which replaced the IPC from 1 July 2024, there is no adultery offence.

What Did Not Change

• Adultery remains a valid ground for divorce under all personal laws.
• A spouse may still seek divorce on the ground that the other has committed adultery.
• The fact of adultery may be relevant in matrimonial proceedings for divorce, custody, or alimony.

The Armed Forces Exception (2023 Clarification)

In 2023, the Supreme Court clarified that the Joseph Shine judgment's decriminalisation does not apply to members of the armed forces. The Army Act, 1950, the Air Force Act, 1950, and the Navy Act, 1957 contain their own provisions making adultery a service offence. Under Article 33 of the Constitution, Parliament can restrict fundamental rights of armed forces members to maintain discipline. The Court upheld the applicability of adultery as a service offence for military personnel.

Three Cases Overruled

The judgment expressly overruled:

1. Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321) — Five-judge Constitution Bench; upheld Section 497 citing Article 15(3).

2. Sowmithri Vishnu v. Union of India ((1985) Supp SCC 137) — Upheld Section 497 on multiple grounds.

3. V. Revathi v. Union of India ((1988) 2 SCC 72) — Upheld Section 497 as protecting matrimonial relationships.

Joseph Shine and the Puttaswamy-Navtej Johar Trilogy

Joseph Shine is the third judgment in what constitutional scholars describe as the 2017-2018 trilogy on personal freedom, dignity, and identity:

• K.S. Puttaswamy v. Union of India (2017): Right to privacy is a fundamental right under Article 21. Sexual orientation is an essential attribute of privacy.
• Navtej Singh Johar v. Union of India (2018): Section 377 IPC unconstitutional in so far as it criminalises consensual adult same-sex acts. Constitutional morality must prevail over social morality.
• Joseph Shine v. Union of India (2018): Section 497 IPC unconstitutional. Adultery cannot be a crime. Women are not the property of their husbands. Sexual autonomy is a constitutional right.

All three cases were decided by five-judge Constitution Benches. All three involved four separate concurring opinions. All three built directly on each other's reasoning about dignity, autonomy, privacy, and equality.

POV Section: What This Means for Judiciary Aspirants

Prelims

Expect direct questions on the case name (Joseph Shine v. Union of India), citation (AIR 2018 SC 4898 / (2019) 3 SCC 39), date (27 September 2018), bench (five-judge Constitution Bench, CJI Dipak Misra), and the core holding (Section 497 IPC unconstitutional). Know which Articles were violated (14, 15, 21), which earlier cases were overruled (Yusuf Abdul Aziz, Sowmithri Vishnu, V. Revathi), and the armed forces exception. Know that the BNS, 2023 has no adultery offence.

Mains

Your written answer should cover the text and discriminatory structure of Section 497 IPC, the four earlier precedents and why they were wrong, all four concurring opinions with their distinct constitutional emphases, the four grounds of unconstitutionality (Articles 14, 15(1), 15(3) as no shield, 21), the adult-crime-vs-private-wrong distinction, and the armed forces clarification. Connect to the Puttaswamy-Navtej-Joseph Shine trilogy to show the full constitutional arc. Include the BNS note.

Interview (Viva)

Panels often ask: "Is adultery a crime in India?" "What did the Supreme Court decide about Section 497 IPC?" "Why was the woman not charged with adultery under Section 497?" Be ready to explain the entire structural discrimination of the old provision and why each element of it was constitutionally impermissible. The "wife as property of husband" formulation is the central analytical thread.

Conclusion

Joseph Shine v. Union of India closed a 158-year-old chapter of constitutional shame. It took a law that was designed to protect a husband's marital property interests and held it up against the Constitution's promise of equality, dignity, and liberty. The Constitution won.

For your Civil Judge Exam, PCS J Exam, or any judiciary exam, this case is essential for constitutional law, criminal law, gender jurisprudence, and the Puttaswamy-Navtej-Joseph Shine trilogy.

At Aashayein Judiciary, Nitesh Sir covers the Joseph Shine judgment in its full constitutional depth, connecting the four opinions to each other and to the broader arc of Indian fundamental rights jurisprudence. The Judiciary Notes, PYQ series, and Mock Test series at Aashayein Judiciary ensure you can answer every dimension of this case with precision and confidence.

Frequently Asked Questions

Q1. What did the Supreme Court decide in Joseph Shine v. Union of India (2018)?

 A five-judge Constitution Bench unanimously struck down Section 497 of the IPC, decriminalising adultery in India. The Court held that Section 497 violated Articles 14, 15, and 21 of the Constitution by treating women as the property of their husbands, denying them autonomy and dignity. Section 198(2) CrPC was also held unconstitutional to the extent it applied to Section 497.

Q2. Does adultery still have any legal consequences in India after this judgment?

Yes. Adultery remains a valid ground for divorce under all personal laws in India. A spouse may seek divorce on the ground of adultery. The fact of adultery may also be relevant in matrimonial proceedings for custody or alimony. What ended is only the criminal liability — no person can be arrested or prosecuted for adultery. Under the BNS, 2023, there is no offence corresponding to Section 497 IPC.

Q3. Does the judgment apply to members of the armed forces?

No. In 2023, the Supreme Court clarified that the Joseph Shine judgment does not apply to military personnel. The Army Act, Air Force Act, and Navy Act contain their own provisions making adultery a service offence, and these are protected by Article 33 of the Constitution, which allows Parliament to restrict fundamental rights of armed forces members to maintain discipline.

Q4. Which earlier Supreme Court cases were overruled by Joseph Shine?

 Three earlier Constitution Bench decisions were expressly overruled: Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321), which upheld Section 497 citing Article 15(3); Sowmithri Vishnu v. Union of India ((1985) Supp SCC 137), which upheld Section 497 on multiple grounds; and V. Revathi v. Union of India ((1988) 2 SCC 72), which upheld Section 497 as protecting matrimonial relationships.

Q5. How does Joseph Shine connect to the Puttaswamy and Navtej Johar judgments?

 All three form a constitutional trilogy on personal freedom, identity, and dignity. Puttaswamy (2017) declared privacy a fundamental right under Article 21, including informational, bodily, and decisional privacy. Navtej Johar (2018) used privacy and constitutional morality to strike down Section 377 IPC in so far as it criminalised consensual adult same-sex acts. Joseph Shine (2018) applied the same framework to hold that the State cannot criminalise the intimate choices of consenting adults within marriage. All three were decided by five-judge Constitution Benches with four separate concurring opinions.