Abstract
The decriminalization of adultery through the landmark judgment in Joseph Shine v. Union of India (2018) has triggered extensive debate on the intersection of personal liberty, gender justice, and the role of the state in regulating morality. This article critically examines the evolution and eventual striking down of Section 497 of the Indian Penal Code (IPC), arguing that the judgment represents a significant stride towards constitutional morality and gender equality. At the same time, it acknowledges the societal concerns regarding the sanctity of marriage and evaluates the implications of this decision in both criminal and civil contexts.
Introduction
For over a century, Indian criminal law penalized adultery under Section 497 IPC, a colonial-era provision that treated a man as the sole perpetrator and a woman as a passive victim. The Supreme Court’s decision in Joseph Shine v. Union of India declared this provision unconstitutional, holding that it violated Articles 14, 15, and 21 of the Constitution. This article explores the historical background of adultery law, judicial interpretation, constitutional critique, and broader socio-legal consequences of its decriminalization.
I. Understanding Section 497 IPC: A Colonial Relic
Section 497 of the IPC (before being struck down) stated:
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse… shall be guilty of the offence of adultery…”
This provision had several problematic features:
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It criminalized only men, not women.
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It treated the wife as the property of the husband.
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It allowed the husband to decide whether the act was punishable, based on his consent.
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It denied women agency, autonomy, and equality.
The law was steeped in patriarchal assumptions, framing marriage as a contract of ownership rather than a relationship of mutual dignity.
II. The Judicial Shift: Joseph Shine v. Union of India (2018)
In 2018, the Supreme Court unanimously struck down Section 497 in the Joseph Shine case, marking a pivotal moment in constitutional jurisprudence. The Court’s reasoning included the following key points:
A. Violation of Article 14 (Right to Equality)
The law discriminated on the basis of sex, punishing men alone and treating women as objects of male ownership. The classification was manifestly arbitrary.
B. Violation of Article 15 (Non-Discrimination)
The provision reinforced gender stereotypes and denied women equal protection of the law.
C. Violation of Article 21 (Right to Life and Dignity)
The Court emphasized that individual autonomy, sexual privacy, and bodily integrity are intrinsic to the right to life. Criminalizing consensual relationships between adults undermines these values.
D. Marital Relationships and Criminal Law
The Court noted that personal relationships, even if morally questionable, should not be regulated by the state through criminal sanction, unless harm or coercion is involved.
III. Ethical and Feminist Critique
The judgment was widely lauded by feminist scholars and legal experts. Key ethical justifications include:
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Agency and Consent: The law assumed that women could not make independent sexual choices.
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Patriarchal Control: It reinforced the notion of the husband as the protector or controller of the wife.
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Criminal Morality: The law imposed a Victorian morality that clashed with modern democratic values.
However, concerns were raised about whether decriminalization would lead to the breakdown of marital fidelity, reflecting a persistent societal belief in the sanctity of monogamy.
IV. Civil Consequences of Adultery
While adultery is no longer a criminal offence, it remains a ground for civil remedies, particularly:
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Divorce: Under the Hindu Marriage Act, Special Marriage Act, and other personal laws, adultery remains a valid ground for seeking divorce or judicial separation.
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Custody Battles: Courts may consider adultery as a factor in determining the best interests of the child, although this is not automatic.
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Alimony and Maintenance: Adultery may influence the amount or entitlement, particularly where the dependent spouse is at fault.
Thus, while the criminal liability has been removed, the moral weight of adultery persists in civil proceedings.
V. Comparative Jurisprudence
Many democratic jurisdictions had already decriminalized adultery prior to India:
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United Kingdom: Adultery is not a criminal offence.
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United States: Varies by state, but most treat it as a civil issue.
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France and Germany: Adultery is not punishable by criminal law.
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South Korea: Decriminalized adultery in 2015, citing violation of personal liberty.
India’s decision brought it in line with global human rights standards, emphasizing constitutional morality over popular morality.
VI. Critics and Conservative Concerns
Critics of the decriminalization argued:
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It would undermine the institution of marriage.
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It sends a dangerous message about fidelity.
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It removes deterrents against extramarital affairs.
However, the Court was clear that morality and legality are distinct spheres, and that criminal law cannot be used to enforce private moral codes. The state has no place in criminalizing personal decisions made between consenting adults.
VII. The Way Forward: Beyond Criminal Law
The Joseph Shine judgment opens space for deeper reflection on:
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Gender-neutral personal laws: Ensuring that remedies in divorce, maintenance, and custody are not biased against women or men.
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Sexual autonomy: Extending the conversation to marital rape and reproductive rights.
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Judicial sensitization: Ensuring judges apply civil laws without moral prejudice, and with an emphasis on consent and dignity.
There remains a need to balance individual freedoms with the social values that underpin stable family structures. This balance must be achieved through civil law reform, mediation mechanisms, and awareness campaigns, not through criminal prosecution.
Conclusion
The decriminalization of adultery in Joseph Shine v. Union of India is a transformative step in Indian constitutional jurisprudence. It affirms the principles of equality, liberty, and dignity while challenging deeply entrenched patriarchal norms. The shift from punitive control to personal autonomy does not signal a disregard for marital values but rather a commitment to making them voluntary, equal, and respectful.
As India moves forward, the focus must be on creating gender-just civil laws, promoting mutual respect in relationships, and upholding the spirit of constitutional morality.
