Joseph Shine v. Union of India, (2018) 2 SCC 189 - Synopsis
Ahir Mitra 1 Jun 2021

Joseph Shine v. Union of India

(2018) 2 SCC 189

In India, adultery was sanctioned by patriarchy and male chauvinism. A guy who has sexual intercourse with a woman who is the wife of another man is guilty of this crime. And if the spouse agrees or colludes in the conduct, it is no longer considered adultery. In the event that her husband commits adultery, she has no rights. Joseph Shine filed a writ petition under Article 32, contesting the legality of Section 497 of the Indian Penal Code, coupled with Section 198 of the Code of Criminal Procedure, as being in violation of Articles 14, 15, and 21. This started out as a PIL against adultery. The rule for adultery, according to the petitioner, is arbitrary and discriminatory on the basis of gender. The petitioner stated that such a law degrades a woman's dignity. The petition was heard by a constitutional bench of five judges.

The petitioner's lawyer argued that the section criminalises adultery only on the basis of sex classification, which has no rational linkage to be reached. The wife's approval is irrelevant. As a result, it is in violation of Article 14 of the constitution. The petitioner argued that the rule is founded on the idea that a woman is the husband's property. Adultery is not committed if the husband consents or connives, according to the clause. The provision for adultery is gender discriminatory because it exclusively gives men the authority to prosecute for adultery, which is a violation of Article 15.

The provision is unlawful, according to the petitioner, because it degrades a woman's dignity by failing to respect her sexual autonomy and self-determination. It's a breach of Article 21. Sections 497 of the IPC and 198 of the CrPC must be repealed. Adultery is an offence that destroys family relationships, according to the respondents, and deterrence should be in place to defend the institution of marriage. Adultery, according to the respondents, has an impact on the husband, children, and society as a whole. It is a crime perpetrated by an outsider with full understanding of the marriage's sacredness.

In Yusuf Abdul Aziz v. State of Bombay,[1] the constitutionality of section 497 of Indian Penal Code, on the grounds that’s it violates Article 14, 15, as a wife cannot be a culprit even as an abettor. The 3 Judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). The Malimath Committee on Criminal Justice Reforms was founded in 2003 and proposed that the rule be amended to read: "Whoever has sexual intercourse with the spouse of another is guilty of adultery." The same is currently being considered.

 The dignity of an individual and sexual privacy is protected by the constitution under Article 21. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life. In Common Cause v. Union of India,[2] The understanding about women was archaic when the penal code was drafted, and she was viewed as a chattel, but after 158 years, women's status is equal to that of males. Her dignity is paramount, and it cannot be jeopardised by a clause that reinforces gender stereotypes. Women's individuality is diminished and her identity is questioned when they are treated as victims.

This decision has been heavily panned on the grounds that it allows people to commit adultery without fear of repercussions. Since its decriminalisation, there has been an upsurge in adultery. Males believe that there is no way to guarantee the purity of a lineage any longer. Many argue that the parliament should have followed recommendations from law commissions in order to penalise both men and women equally for adultery. The Supreme Court has also been chastised for not allowing parliament to make decisions on adultery in light of changing socioeconomic circumstances.


[1] (1985) Supp SCC 137.

[2] (2018) 5 SCC 1.


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