Published on: 19th November 2025
Authored by: Nivya Lohiya
Nirma University
Citation: (2019) 3 SCC 39, AIR 2018 SC 4898
Court: Supreme Court of India
Bench: Dipak Misra, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.
Date of Judgement: 27 September 2018
Relevant Provisions/ Statutes: Section 497 of the Indian Penal Code, 1860, Section 198(2) of the Code of Criminal Procedure, 1973 and Articles 14, 15, and 21 of the Constitution.
Brief Facts and Background of the case:
The Petitioner Joseph Shine a non-resident Indian filed a writ petition under Article 32 of the Indian Constitution in the form of a Public Interest Litigation (PIL). His petition questioned the constitutional validity of Section 497 IPC and Section 198(2) of the Code of Criminal Procedure (CrPC), 1973. Section 497 stated that any man who has sexual intercourse with a married woman, without the consent or connivance of her husband, commits the offence of adultery. The punishment for the offence could extend to five years of imprisonment or a fine or both. The provision exempted the woman from punishment considering her not to be an abettor but a victim.
Section 198(2) of the CrPC further stipulated that only the husband of the woman could file a complaint in cases of adultery. This meant that a woman had no right to initiate legal proceedings even if she was affected by the act. The law thus placed a married woman in a subordinate position viewing her as her husband’s property without any agency or legal standing of her own in such matters.
The petitioner contended that the archaic adultery law violated several fundamental rights of Indian citizens and was incompatible with modern constitutional values of equality, dignity, and privacy.
Issues before the Court:
- Whether Section 497 of IPC violates Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life and Personal Liberty) of the Constitution?
- Whether the provision treats women as the property of their husbands thereby violating gender equality?
- Whether the immunity granted to women under Section 497 reinforces gender stereotypes?
- Whether Section 198(2) of CrPC is unconstitutional for denying women the right to file complaints in adultery cases?
Arguments advanced by the Petitioner and the Respondent
In the constitutional challenge to the validity of Section 497 of the Indian Penal Code the petitioner and the respondent presented sharply contrasting views rooted in legal philosophy, social morality and constitutional interpretation. The petitioner Joseph Shine through his counsel argued that the provision was a relic of colonial paternalism while the Union of India defended it as a measure for preserving societal values and marital fidelity.
The petitioner began by asserting that Section 497 of the IPC which punished only men for adultery and exempted women violated the fundamental right to equality enshrined in Article 14 of the Constitution. By criminalising only men and giving a blanket immunity to women regardless of consent, coercion, or initiative it not only failed the test of reasonable classification but also institutionalised gender bias. The law assumed that women could not make independent sexual choices thereby denying them agency and autonomy.
Further the petitioner invoked Article 15 contending that the provision amounted to sex-based discrimination under the guise of protection. The exemption of women from prosecution instead of being a beneficial or empowering exception reinforced harmful stereotypes. It treated women as passive victims rather than active participants echoing outdated societal norms where a woman’s honour was tied to her chastity and obedience to her husband.
A pivotal aspect of the petitioner’s argument focused on the right to privacy and personal liberty under Article 21. Relying on recent landmark judgments such as Justice KS Puttaswamy v. Union of India and Navtej Singh Johar v. Union of India, Shine’s counsel submitted that the criminalization of consensual sexual relationships between adults constituted an impermissible intrusion into the private sphere. Sexual autonomy according to the petitioner forms an essential part of individual dignity. Therefore, penalizing adultery under criminal law was disproportionate, outdated and incompatible with a modern liberal democracy that values choice, consent and personal freedom.
Another key submission made by the petitioner was that Section 497 was a colonial-era law grounded in notions of proprietary rights of husbands over their wives. The law presumed that it was the husband who was ‘injured’ by the adulterous act and allowed only him to initiate prosecution under Section 198(2) of the CrPC. This further denied the wife a voice in matters that affected her own marriage, her dignity and her rights. Such patriarchal assumptions, the petitioner contended were wholly inconsistent with contemporary constitutional morality.
On the other side the Union of India defended the provision by asserting that it served the legitimate aim of preserving the institution of marriage and societal morality. It was contended that adultery though a private act had profound implications for families, especially children, and hence the state was justified in deterring it through criminal sanction. The State emphasized that Section 497 acted as a moral deterrent against acts that could destabilize the family unit— a building block of society.
The Union also justified the exemption of women under Section 497 on the ground of protective discrimination. It argued that this legislative choice was intended to shield women from social stigma, legal harassment and the adversarial nature of criminal proceedings. According to the State the provision was a beneficial legislation that should not be invalidated merely because it treated men and women differently. This distinction, it argued was constitutionally permissible under Article 15(3) which allows the State to make special provisions for women and children.
Moreover the Union urged judicial deference to legislative wisdom. It submitted that courts should not lightly invalidate laws enacted by Parliament unless they were manifestly arbitrary or irrational. Given the complex social dimensions of marriage, morality and sexual conduct the State contended that it was within the domain of the legislature to decide whether such conduct merited criminal sanction.
However the Court did not accept these arguments. The judges questioned whether criminal law was the appropriate mechanism to enforce moral or marital obligations and whether the classification made under Section 497 served a rational purpose under the Constitution. Ultimately the petitioner’s arguments rooted in dignity, equality and personal autonomy found favour with the Bench leading to a unanimous declaration that Section 497 of the IPC and Section 198(2) of the CrPC (to the extent it pertained to adultery) were unconstitutional.
Judgment and Ratio Decidendi:
The judgment in Joseph Shine v. Union of India marked a historic moment in Indian constitutional law. Delivered by a five-judge Constitution Bench the Court unanimously struck down Section 497 of the IPC and Section 198(2) of the CrPC holding them unconstitutional. The Bench declared that these provisions infringed upon the principles of gender equality, individual dignity and personal liberty and were thus violative of Articles 14, 15 and 21 of the Constitution. The Court emphasized that the law treated women as property, denied them agency and criminalized private consensual relationships.
The ratio decidendi (binding legal reasoning) of the judgment was that Section 497 created an unconstitutional gender classification punishing only men while treating women as incapable of consent or choice. This violated Article 14’s guarantee of equality and Article 15’s prohibition of discrimination based on sex. Furthermore by intruding into consensual adult relationships the provision violated the right to privacy and sexual autonomy under Article 21. The Court clarified that although adultery could be grounds for civil consequences such as divorce, it was not a fit subject for criminal punishment.
Obiter Dicta
In the Joseph Shine judgment, the Supreme Court made several important obiter dicta (non binding) but influential observations. Justice Chandrachud notably stated that marriage does not subordinate individual autonomy and constitutional morality must prevail over public morality. The Court emphasized that sexual fidelity though a civil obligation cannot be enforced by criminal law. It also remarked that criminal law must not become a tool to control women’s sexuality or reinforce patriarchal values.
Final Decision and Impact:
The final decision in Joseph Shine v. Union of India was a unanimous judgment by the Supreme Court striking down Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code declaring them unconstitutional. The Court held that criminalizing adultery violated the principles of equality (Article 14), non-discrimination (Article 15), and personal liberty and dignity (Article 21). It decriminalized adultery while affirming that it could still be a valid ground for divorce.
The impact of this decision was far-reaching. First it restored sexual autonomy and personal privacy as core constitutional values stating that the state has no role in regulating consensual relationships between adults. Second it removed patriarchal assumptions embedded in the law that treated women as the property of their husbands. The judgment modernized India’s criminal justice framework by eliminating colonial-era morality from its statutes. It also served as a guiding precedent for subsequent decisions that sought to prioritize individual rights over outdated social conventions reinforcing the transformative nature of the Indian Constitution.
Conclusion:
The case of Joseph Shine v. Union of India is a landmark in Indian constitutional jurisprudence. It represents a departure from patriarchal legal structures and recognizes the autonomy, dignity and equality of women. By decriminalizing adultery, the Court acknowledged the importance of privacy in intimate relationships and limited the reach of criminal law to prevent its misuse as a tool of social control.
This judgment reaffirmed the judiciary’s commitment to constitutional morality over public morality and personal liberty over outdated gender roles. It is a powerful testament to the idea that laws must evolve with time and uphold the dignity of all individuals irrespective of gender.
References:
[1] Indian Penal Code 1860, s 497.
[2] Code of Criminal Procedure 1973, s 198(2).
[3] Constitution of India, art 14.
[4] Constitution of India, art 15.
[5] Constitution of India, art 21.
[6] Constitution of India, art 32.
[7] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC).
[8] Justice KS Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1 (SC).
[9] Shweta and Tauseef Ahmad, Joseph Shine v Union of India – A Comment (2018) 14 NLSJ 18. (repository.nls.ac.in, repository.nls.ac.in)
[10] Owais Hasan Khan and Farheen Arif, ‘Law and Sexuality: Commentary on Joseph Shine vs Union of India and Ors’ (2018) 14 NLSJ (1) Article 16. (repository.nls.ac.in)
[11] Joseph Shine v Union of India (2018) SCC Online SC 1676, [2018] 2 SCC 189 (SC), https://ijtr.nic.in/Joseph_Shine_vs_Union_Of_India_on_27_September,_2018.PDF
