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Decriminalizing Adultery - Joseph Shine v. Union of India

Updated: Jan 22

The Supreme Court’s constitutional bench of 5 judges unanimously struck down section 497 of the Indian Penal Code, decriminalizing adultery, leaving it as ground only for civil offense- divorce.

The Question of Decriminalizing adultery came forth when Joseph Shine, an NRI, hailing from Kerala, filed the present writ petition before the Supreme Court, challenging the constitutional validity of Section 497 of the IPC on the ground that it violated Articles 14, 15(1) and 21 of the Constitution.

Section 497 of the IPC elaborates the concept of adultery as "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 not amounting to the offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."

Court Observations

The court is perceived that the section showed strong gender bias by holding only the man liable for the offense which was committed by both of them, while the wife could not be prosecuted even as an abettor. Manifest arbitrariness existed in treating the husband as an aggrieved party, while his wife was disregarded as a victim. The law treated the offense of adultery as a “trespass” or “theft” of the husband’s property, for which he could claim damages. Further, no rights were conferred on the wife of an adulterer to prosecute her husband, thus protecting only one of the two wives.

The Victorian era law was based on a patriarchal notion that, upon marriage, the husband has exclusive rights over his wife’s sexual choices outside the frontiers of marriage. This archaic face of the section is unveiled and once the consent of the husband is obtained- the man then does not commit a crime. The wife is treated as a chattel, and to use this chattel, the license could be issued only by the licensor, the husband.

Section 497 infringed the right to dignity and equality of status by gross subjugation of women based on societal gender stereotypes, considering women as incapable of determining their sexual preferences and hence not susceptible to prosecution. The emphasis placed on the consent of the husband further portrayed the deeply entrenched theory of “securing the entitlement of the husband over his wife’s sexuality”, thus reducing her to the status of a passive object.

Privacy of an individual is an essential aspect of dignity which is safeguarded by our constitutional jurisprudence. The constitution has recognized that even in the most intimate zones, one has the right to take important decisions including matters relating to consensual sexual activities between adults. Section 497 commanded the parties to remain faithful and maintain fidelity, an expectation that touches the core of privacy. The court held that though society abhors infidelity, laws cannot be made only on moral high grounds, which infringes an individual’s actions in matters of his fundamentally protected right to privacy. After parties lose their moral commitment, it should be left to the parties to deal with the situation. To treat it as a crime, would be to intrude into an extremely private realm of the matrimonial sphere, as it would offend two important facets of article 21, namely dignity of the husband and wife and the privacy attached to their relationship.

Meanwhile, The Centre, in its defense, referred to the cases of Sowmithri Vishnu and Revathi in which the Supreme Court upheld the constitutionality of the section on the ground that it was generally the man who was the seducer, who breaks sanctity of the matrimonial home by developing an illicit relationship with one of the spouses and hence he alone should be penalized. However, the court ruled otherwise, holding that the true underlying objective of the section is not to protect the sanctity of marriage. The sanctity of the marriage can be destroyed when a married man has sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives to such intercourse, no offense is committed, thereby portraying that in reality, it is not the sanctity of the married to be preserved, but the proprietary right of a husband on the sexuality of his wife.


Yashvi Maru is currently pursuing Law at Government Law College, Mumbai

You can contact them at http://linkedin.com/in/yashvi-maru-8575691a2

Edited by: Swathi Ashok Nair


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