Joseph Shine Vs. Union of India, 2018

In December 2017, a Public Interest Litigation petition was filed challenging the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

A three Judge Bench, headed by the then Chief Justice of India, Dipak Misra, had referred the petition to a five Judge Constitution Bench, conceding that the law did seem to be archaic. 

• Whether the provision for adultery is arbitrary and discriminatory under Article 14?
• Whether Section 497 of the IPC is unconstitutional?
• Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on a gender basis under Article 15 as if the husband has consented to such an act, then such an act will no longer be considered an offence?
• Whether the dignity of a woman is compromised by the denial of her sexual autonomy and right to self-determination?
• Whether criminalising adultery is intrusion by law in the private realm of an individual?
• Whether adultery laws should be made gender-neutral?As per Section 497, there is no legal provision claiming that a woman can lodge a complaint against her husband who has committed adultery; should that be amended?

The judgment given by CJI, Deepak Mishra started with the statements proving that wives are not the property of the husbands and husbands are not their masters.

• Section 497 disposes off the women from her autonomy, dignity and privacy. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasizing, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III and Privacy of the individual is an essential aspect of dignity.
• Section 497 is considered as the wife's encroachment on her right to life and personal liberty by accepting the notion of marriage which overthrows the true equality.
• Equality is overthrown by adopting the sanctions of penal code to a gender-based approach to the relationship of man and woman. Sexual autonomy falls within the area of personal liberty under Article 21 of Constitution of India. Trust and respect are two essentials of a marriage. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established.
• This section denies the substantive equality as it provides that women are not able to give her free consent for the sexual acts in a legal order which considers them as a sexual property of their spouse. Therefore, section 497 is violative of Article 14 of the Indian Constitution and it also violates the non-discrimination clause of Article 15 of the Constitution of India. This section also lays strong emphasis on the consent of the husband which leads to the subordination of women. Hence, it clearly violates Article 21 of the Constitution of India.
• Adultery is no longer be a criminal offence- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.
• Husband is not the master of his wife- The judgment focuses on the fact that women should not be considered as the property of their husband or father anymore. They have equal status in the society and should be given every opportunity to put their stance forward.

• In the recent case, the Supreme Court of India has struck down the section 497 of Indian Penal Code. The court has restricted the institution of marriage on which strong foundation of Indian society is based. This will lead to the cessation of crimes related to adultery. This verdict leads to the sexual anarchy.
• Adultery is no more considered as a civil wrong and adultery can only be a ground for divorce. But the reasons are not so much convincing and hence this cannot become Lex Loci. If adultery is not considered as a crime then divorce on this ground would be an unamending chase. Criminal law is considered as a guardian of the moral principles of the Indian society.
• If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative would always exist.