Joseph Shine v Union of India (2018): Adultery Law Struck Down, What Changed and Why

Until 27 September 2018, Section 497 of the Indian Penal Code made adultery a crime, but only for the man. On that day, a five-judge Constitution Bench of the Supreme Court held Section 497 IPC unconstitutional, and also struck down Section 198 CrPC, the procedural provision that went with it.

The case is Joseph Shine v Union of India, reported at 2019 (3) SCC 39 and AIR 2018 SC 4898 ([2018] 11 S.C.R. 765). It is a favourite for the Civil Judge Exam, PCS J Exam and APO Exam because it touches Article 14, Article 15 and Article 21 in one judgment, and because it overruled two earlier decisions.

What exactly was wrong with Section 497

The lead judgment, by Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), looked at how Section 497 actually worked. Its reasoning has three strands that you can use in a Mains answer.

Read Blog: Navtej Singh Johar v Union of India (2018)

A woman treated as the property of a man

The Chief Justice said that on a reading of the provision, women are treated as subordinate to men, because when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel and as the property of the man, totally subservient to the will of the master. In his words, it reflects the social dominance that prevailed when the penal provision was drafted.

He also noted that Section 497 does not cover an extra-marital relationship with an unmarried woman or a widow. And Section 198 CrPC, which deals with who is a person aggrieved, treated the husband as deemed to be aggrieved by the offence. The wife of the adulterer was not considered aggrieved at all.

Article 14: manifest arbitrariness

The Court applied the test of manifest arbitrariness, which it took from an earlier decision of the Court that it quoted at length. Under that test, legislation is struck down if it is done capriciously, irrationally or without adequate determining principle, or if it is excessive and disproportionate. The Court said it respectfully concurred with that view.

On that test, the Chief Justice found Section 497 and the deeming definition of aggrieved person absolutely and manifestly arbitrary. It gives the husband a licence to deal with the wife as he likes, which is extremely excessive and disproportionate. It does not treat a woman as an abettor but protects her, yet it does not allow the wife to prosecute the husband. The wife can take civil action, but the husband can too, so that does not save the provision. The Court said the provision protects one woman and does not protect the other, and that its rationale suffers from absence of logic. So it suffers from the vice of Article 14.

Article 21: dignity of women

The Court then turned to Article 21, tracing how it has recognised the equality and dignity of women. It referred to decisions on compensation for a homemaker's work, on dignity of women, and on honour and patriarchy. It also relied on the nine-judge bench decision in K.S. Puttaswamy v Union of India, which held that privacy is a facet of Article 21 and stressed dignity, and on National Legal Services Authority v Union of India.

It concluded that Section 497 creates invidious distinctions based on gender stereotypes, which dent the individual dignity of women. Its emphasis on the connivance or consent of the husband amounts to subordination of women. So it offends Article 21.

Should adultery be a crime at all?

This is the second big question the Chief Justice asked, and it is where the judgment goes beyond gender. Even if the section were redrawn to cover sexual intercourse with an unmarried woman or a widow, the Court asked whether adultery should be treated as a criminal offence.

The Court accepted that marriage is a social institution, and that Parliament has made efforts to protect the rights of women, for example through Section 498-A IPC and the Protection of Women from Domestic Violence Act, 2005. It said adultery can certainly be a civil wrong, including a ground for dissolution of marriage. But it distinguished it from offences like cruelty, dowry demand, abetment of suicide and bigamy. In those cases there is no third party in the way adultery involves one, and they serve purposes like preventing cruelty or protecting a married woman's life during the marriage.

The Court made several points that you can keep in your notes:

·        Treating adultery as an offence would amount to the State entering a real private realm. It is better left as a ground for divorce.

·        Making it a crime would offend two facets of Article 21: the dignity of husband and wife, and the privacy attached to their relationship.

·        The law expects parties to be loyal and makes the adulterer the culprit. That expectation is a command that gets into the core of privacy, and it is a discriminatory, socio-moral command.

·        Adultery can be the cause of an unhappy marriage in some cases and the result in others. A law that makes it a crime would punish indiscriminately both those whose marriages have broken down and those whose marriages have not, and so would fall within manifest arbitrariness.

·        The Court said it was not making law. It was saying that adultery does not fit into the concept of a crime, and it acknowledged that Parliament holds the law making power.

The Court also looked at the position abroad. It noted that adultery as a crime is no longer prevalent in China, Japan, Australia, Brazil and many western European countries. It added that English law has never regarded adultery as a crime except for ten years in the time of Oliver Cromwell, and that most countries have abolished it. Treating adultery as a crime today, the Court said, would be a retrograde step, since the Court has travelled the path of transformative constitutionalism.

The result: what was struck down and what was overruled

Having held Section 497 IPC unconstitutional, the Court said that Section 198 CrPC, which provides the procedure for filing a complaint in relation to adultery, must also be declared unconstitutional. The reason is simple: when the substantive provision goes, the procedural provision follows.

The Court then stated that the decisions in Sowmithri Vishnu and V. Revathi stand overruled, along with any other judgment following those precedents. The writ petition was allowed to the extent indicated.

The headnote in the law reports records the holding as a declaration by the Court that Section 497 IPC and Section 198 CrPC are violative of Articles 14, 15 and 21. The Chief Justice's own reasoning, as examined above, rests on Articles 14 and 21. The bench included four other judges besides the Chief Justice, and Nariman, J.'s separate judgment starts after the Chief Justice's, so for a complete study read all the opinions.

A later clarification involving the armed forces

There is a short follow-up that is useful for an up-to-date answer. In a miscellaneous application (M.A. No. 2204 of 2020), the Union of India sought clarification of the 2018 judgment in relation to the Army Act, 1950 (Sections 45 and 63), the Air Force Act, 1950 (Sections 45 and 65) and the Navy Act, 1957 (Sections 54(2) and 74). A five-judge bench, with K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ., decided it on 31 January 2023, reported at [2023] 4 S.C.R. 585.

The headnote records that, in Joseph Shine, the scheme of those Acts in the context of Article 33 of the Constitution did not fall for consideration, and that the judgment was not concerned with the effect and operation of the relevant provisions of those Acts. I have only the headnote of this later order, so for the full reasoning, read the order itself.

Using this case in your answer

A well-structured answer can be built in five steps. State what Section 497 and Section 198 CrPC provided. Give the Article 14 reasoning with the manifest arbitrariness test. Give the Article 21 reasoning on dignity and privacy. Explain why the Court said adultery should not be a crime, with the contrast to cruelty and dowry offences. End with the result: Section 497 IPC and Section 198 CrPC declared unconstitutional, and Sowmithri Vishnu and V. Revathi overruled.

One caution: when you quote the case, use the correct citation, 2019 (3) SCC 39 or AIR 2018 SC 4898. Also remember that the criminal law codes have changed since this judgment, so check the current text of the relevant provisions in your Bare Act when you answer.

Questions Aspirants Ask About Joseph Shine

What is the correct citation of Joseph Shine v Union of India?

2019 (3) SCC 39, AIR 2018 SC 4898 and [2018] 11 S.C.R. 765. The judgment is dated 27 September 2018.

Who decided the case?

A five-judge Constitution Bench of Dipak Misra CJI, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ.

What did the Court strike down?

Section 497 IPC, which dealt with adultery, and Section 198 CrPC, which dealt with the procedure for complaints about it.

Which Articles were violated, according to the Court?

The headnote records Articles 14, 15 and 21. The Chief Justice's reasoning rests on Articles 14 and 21.

What was the Article 14 argument?

That Section 497 was manifestly arbitrary. It was excessive and disproportionate, protected one woman and not the other, and lacked logic.

What was the Article 21 argument?

That Section 497 created invidious distinctions based on gender stereotypes and subordinated women, which hit their dignity. Making adultery a crime would also intrude on the privacy of the marital relationship.

Did the Court say adultery is acceptable?

No. The Court said adultery can be a civil wrong and a ground for divorce, but it should not be treated as a criminal offence.

Which earlier cases were overruled?

Sowmithri Vishnu and V. Revathi, along with any other judgment following those precedents.

Why was Section 198 CrPC struck down?

Because it provided the procedure for complaints about the offence, and when the substantive provision goes, the procedural provision has to follow.

What happened in the 2023 clarification?

On 31 January 2023, a five-judge bench decided a clarification application of the Union of India, and the headnote records that the 2018 judgment was not concerned with the effect and operation of the provisions of the Army Act, the Air Force Act and the Navy Act.

What This Judgment Teaches

Joseph Shine v Union of India, 2019 (3) SCC 39, brings together manifest arbitrariness under Article 14, dignity and privacy under Article 21 and a clear view on where the criminal law should stop. Learn the two struck-down provisions, the two overruled cases and the reasons for each.

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