Judgement Briefs

Constitutional Law

Joseph Shine v. Union of India

AIR 2018 SC 4898; (2019) 3 SCC 39

Citation
AIR 2018 SC 4898; (2019) 3 SCC 39
Court
Supreme Court of India
Date
27 September 2018
Bench
Dipak Misra C.J.; A.M. Khanwilkar; R.F. Nariman; D.Y. Chandrachud; Indu Malhotra

Facts

  • Joseph Shine filed a petition under Article 32 challenging the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure.
  • Section 497 criminalised adultery where a man had sexual intercourse with a woman whom he knew to be the wife of another man.
  • The offence applied only when the woman’s husband had not consented to or connived in the relationship.
  • Only the man involved in the relationship could be punished.
  • The married woman was not treated as an offender or even as an abettor.
  • A wife could not prosecute her husband for having a sexual relationship with another woman.
  • Under Section 198(2) CrPC, ordinarily only the husband of the woman involved could initiate the prosecution.
  • The petitioner argued that these provisions:
  • treated women as the property of their husbands;
  • denied women equal sexual and personal autonomy;
  • discriminated solely on the ground of sex;
  • imposed criminal liability through irrational gender stereotypes; and
  • violated dignity, privacy and decisional freedom.
  • A five-judge Constitution Bench examined whether the State could constitutionally retain adultery as a criminal offence in this unequal form.

Issue

  • Whether Section 497 IPC violated equality under Article 14.
  • Whether the provision discriminated on the ground of sex contrary to Article 15.
  • Whether criminalising consensual adult relationships violated dignity, privacy and autonomy under Article 21.
  • Whether Section 198(2) CrPC could survive if Section 497 was unconstitutional.
  • Whether protecting the institution of marriage justified the criminal offence.

Rule

  • Article 14 prohibits legislation that is manifestly arbitrary, irrational or based on an inadequate determining principle.
  • Article 15 prohibits sex-based discrimination and laws founded upon stereotypes regarding the proper role of women.
  • Article 21 protects:
  • dignity;
  • privacy;
  • sexual autonomy;
  • decisional freedom; and
  • the right of adults to make intimate personal choices.
  • Women are equal constitutional citizens and cannot be treated as the property or dependants of their husbands.
  • Criminal law may punish conduct causing legally recognised harm, but it cannot enforce patriarchal morality within private adult relationships.
  • The State may regulate marriage through civil law without necessarily criminalising marital infidelity.

Application

  • The Court found that Section 497 was constructed around the idea that a married woman belonged to her husband.
  • The husband’s consent determined whether the relationship was criminal.
  • This indicated that the real concern of the provision was not the woman’s consent or welfare, but interference with the husband’s control over the marriage.
  • A married man was not punished for having relations with:
  • an unmarried woman;
  • a widow; or
  • a married woman whose husband consented.
  • Similarly, a wife had no corresponding right to prosecute an unfaithful husband.
  • The classification therefore lacked a rational connection with the stated object of protecting marriage.
  • The Court rejected the assumption that women were passive victims incapable of making independent choices.
  • Exempting women from punishment was not genuine protection because it simultaneously denied them agency and treated them as objects of male control.
  • The law also interfered with the private and intimate choices of consenting adults.
  • Adultery might constitute:
  • a moral wrong;
  • a breach of marital trust; or
  • a ground for divorce.
  • That did not automatically make it an offence against society requiring imprisonment.
  • The Court held that criminal prosecution could not restore affection or trust within a marriage.
  • All five judges wrote or joined opinions emphasising equality, dignity and autonomy, although their precise constitutional reasoning differed.
  • The Court clarified that adultery could remain relevant in civil matrimonial proceedings and might have legal consequences in exceptional cases, such as where the conduct contributed to suicide and the requirements of another criminal offence were established.

Conclusion

  • The Constitution Bench unanimously struck down Section 497 IPC.
  • The provision violated Articles 14, 15 and 21.
  • Section 198(2) CrPC was also invalidated to the extent that it created the special procedure for prosecuting adultery.
  • Earlier decisions upholding Section 497 were overruled.
  • Adultery ceased to be a criminal offence.