TITLE: Adultery Decriminalized: Revisiting Joseph Shine v. Union of India and Its Impact on Gender Justice and Constitutional Morality

Can love be forced? Can betrayal be jailed? In India, until 2018 — yes. And that’s the real crime.

ABSTRACT:

For over 150 years, adultery was not just a moral failing — it was a criminal offence under Section 497 [1]of the Indian Penal Code. But what was seen as the ‘protection of the sanctity of marriage’ was, in truth, a deeply flawed, gender-biased, colonial provision that denied women their constitutional dignity. A law that gave husbands the right to prosecute another man for “violating” their wife, while denying the woman any autonomy in her own choices, was less about justice and more about control.

The landmark Joseph Shine v. Union of India [2]case in 2018 challenged this outdated notion and marked a revolutionary shift in Indian jurisprudence. The Supreme Court, through a unanimous constitutional bench, declared Section 497 unconstitutional — holding that personal liberty, gender equality, and privacy cannot be overridden by archaic moral codes.

This paper delves into the evolution, criticism, and final demise of Section 497 IPC. It critically examines the reasoning behind the judgment, compares India’s position with global standards, and explores how decriminalisation of adultery has impacted matrimonial law, especially in areas like divorce, maintenance, and personal liberty. Because in a democracy, law should safeguard individual freedom — not police private relationships.

INTRODUCTION

Adultery, traditionally viewed through a moral lens, has long been treated as a legal offence in India. Section 497 of the Indian Penal Code, 1860, criminalised adultery by penalising a man for engaging in sexual relations with a married woman without her husband’s consent, while exempting women from liability altogether. This colonial provision was rooted in patriarchal values that treated women as passive subjects and male property. It denied them agency, autonomy, and constitutional dignity, effectively reducing the marital relationship to a one-sided contract of ownership.

The landmark case of Joseph Shine v. Union of India (2018) marked a constitutional turning point. The Supreme Court unanimously struck down Section 497 as unconstitutional, citing violations of Articles 14[3], Article 15[4], and Article 21 [5]of the Constitution. The judgment was not merely a legal development — it was a social and ideological reform that brought Indian jurisprudence closer to principles of gender equality, personal liberty, and privacy.

This research paper aims to critically analyse the constitutional invalidity of Section 497, evaluate the reasoning of the judiciary, and examine its broader impact on matrimonial law and civil remedies such as divorce and restitution of conjugal rights. The paper also undertakes a comparative study of adultery laws in other jurisdictions to assess how global legal systems approach the intersection of marriage, morality, and crime.

Research Methodology

This research adopts a doctrinal and analytical approach, relying on legal principles, judicial reasoning, and constitutional interpretation to examine the decriminalisation of adultery under Indian law.

The study focuses on a qualitative examination of legal texts, judgments, and scholarly commentary, with a special emphasis on the landmark case of Joseph Shine v. Union of India [6](2018). It explores how adultery evolved as a legal concept, how Section 497 IPC[7] conflicted with fundamental rights, and how its striking down redefined gender equality and personal liberty in India.

Review of Literature

Several scholars, jurists, and constitutional commentators have critically examined the patriarchal undertones of Section 497 IPC[8]. The provision has often been discussed in the context of gender inequality, legal morality, and outdated Victorian values.

Flavia Agnes in her writings on gender and law noted how adultery law reinforced male dominance by denying women the right to prosecute or be treated as equal parties in extramarital affairs.

Justice D.Y. Chandrachud, in his concurring opinion in Joseph Shine, referenced the evolution of privacy and liberty as established in K.S. Puttaswamy v. Union of India (2017), [9]applying the same to sexual autonomy within marriage.

The Law Commission of India (42nd Report) [10]had earlier recommended changes to make the law gender-neutral — but it was never implemented.

Legal commentaries like those of K.D. Gaur and Ratanlal & Dhirajlal have consistently flagged Section 497 as outdated and discriminatory.

Background of the Case

The case Joseph Shine v. Union of India [11]began with a Public Interest Litigation (PIL[12]) filed by Joseph Shine, an Indian national living in Italy. He questioned the constitutional legality of Section 497 of the Indian Penal Code (IPC)[13] and Section 198(2) of the Code of Criminal Procedure (CrPC), [14]both of which criminalized adultery. His petition raised serious concerns about the inherent gender bias embedded in these sections, contending that they were in direct violation of the fundamental rights guaranteed under the Indian Constitution.

Section 497 IPC, a product of colonial thinking, criminalized only men for committing adultery—provided the act was with a married woman and without her husband’s consent. Shockingly, the law ignored the woman’s autonomy entirely, treating her as her husband’s possession, not as an equal legal person. It also deprived wives of any legal right to initiate action against their husbands for adultery, reinforcing a deeply patriarchal and one-sided perspective.

Shine argued that such a provision was not only outdated but also unfair, as it held only men accountable and assumed that women were incapable of making decisions regarding extramarital relationships. He also questioned the constitutionality of Section 198(2) CrPC[15], which allowed only aggrieved husbands to file complaints, thereby excluding women entirely from the legal process.

According to Shine, these provisions clashed with the Constitution’s core values—equality before the law (Article 14),[16] prohibition of discrimination on the basis of sex (Article 15), [17]personal liberty (Article 21[18]), and individual dignity. His petition was not about promoting adultery but about recognizing that personal relationships are a matter of individual choice, and criminal law had no place interfering in them.

This PIL triggered an important conversation around gender justice and individual rights in India. It compelled the judiciary to reassess whether colonial laws like Section 497 [19]still had any relevance in a progressive, democratic society governed by constitutional morality. Ultimately, it led to a historic judgment that redefined the legal and moral contours of marriage, personal choice, and gender equality in India.

What Did Section 497 IPC Say?

Section 497 IPC [20]stated that if a man had sexual relations with a married woman without the consent or connivance of her husband, he would be punished with imprisonment for up to five years. The woman, however, was not punishable—even if she was a willing participant in the affair. The law treated her as a passive object, essentially owned by her husband. In simpler terms, it considered the wife as her husband’s property, whose ‘purity’ could be violated by another man—thus making the act criminal.

Meanwhile, Section 198(2) CrPC [21]supported this inequality by allowing only the aggrieved husband to file a complaint of adultery. A wife could neither file a complaint if her husband cheated, nor could she be considered guilty under the law.

Core Legal Issues Raised

Joseph Shine’s PIL raised the following legal issues:

Was Section 497 [22]arbitrary and violative of Article 14 [23](equality before law)?

Did the law discriminate on the basis of gender, violating Article 15[24]?

Did it infringe on personal liberty and privacy, protected under Article 21[25]?

Did it fail to treat women as independent persons, thereby undermining their dignity?

Was adultery truly a criminal offence, or should it remain a civil matter between two individuals?

Joseph Shine, through his legal counsel, contended that:

The law was rooted in patriarchy: It was based on Victorian-era morality that treated women as the possessions of men. The husband’s consent was given more legal value than the wife’s own decision-making power.

It violated gender equality: By punishing only men, it created an unequal burden on one gender. At the same time, it infantilized women, portraying them as incapable of making choices.

It misused criminal law to regulate morality: The act of adultery is a personal matter involving emotions, choices, and circumstances. Criminalizing it served no public purpose and intruded into the private sphere.

It lacked deterrence: There was no evidence that criminalizing adultery actually prevented infidelity. Instead, it was used as a tool of harassment or revenge during matrimonial disputes.

Government’s Initial Stand

The Union of India, at first, defended the provision, stating that it aimed to protect the sanctity of marriage and discourage extra-marital affairs. It also argued that if the law was being misused or seen as outdated, the Parliament—not the judiciary—should decide on amending or repealing it.

However, as the hearings progressed, even the government acknowledged that the law might be viewed as archaic in a modern context and left the final decision to the wisdom of the Court.

Observations by the Supreme Court

During the hearings, the judges made several strong observations:

Justice D.Y. Chandrachud stated that the law treated women as “chattel” and denied them their agency.

Chief Justice Dipak Misra remarked that a man should not have a license to control his wife’s sexuality.

Justice Indu Malhotra, the sole woman judge on the Bench, pointed out that such laws furthered gender stereotypes and had no place in a society striving for gender justice.

The judges also highlighted how the law contradicted the principles laid down in recent constitutional verdicts like K.S. Puttaswamy v. Union of India [26](Right to Privacy) and Navtej Singh Johar v. Union of India[27] (decriminalization of homosexuality), where individual autonomy and dignity were placed at the forefront.

The Verdict: A Landmark Ruling

On 27th September 2018, the Supreme Court unanimously struck down Section 497 IPC [28]and Section 198(2) CrPC[29] as unconstitutional.

Key points from the judgment:

Adultery is no longer a criminal offence, but can still be a ground for divorce or civil action.

Criminal law cannot enforce private morality, especially when it violates constitutional values.

Women are not property: The provision’s reference to a woman’s husband giving “consent” was deemed unconstitutional and discriminatory.

Equal protection of the law: The law punished only men and not women, thereby violating Article 14.[30]

Violation of dignity and autonomy: The Court emphasized that adult consensual relationships—howsoever immoral—cannot be policed by the state through criminal sanctions.

A Step Toward Gender Justice

This judgment was not just about adultery—it was a bold step forward for gender equality, privacy, and personal freedom in India. It challenged patriarchal notions that still exist in personal laws and set a precedent for future cases involving individual rights.

The ruling was widely celebrated by women’s rights activists, legal scholars, and civil society. It also opened the door for deeper conversations about the nature of marriage, trust, consent, and the role of the state in regulating interpersonal relationships.

Punishment Under Section 497 [31](Before Repeal)

Before it was struck down:

 1)A man committing adultery could be imprisoned for up to five years, or fined, or both.

2)The woman involved faced no legal consequence.

3) The law required the husband’s consent as a deciding factor, further reinforcing male dominance.

Impact on Marriage and Gender Equality

1. Empowerment of Women