Beyond Joseph Shine: Why India Needs a Gender-Neutral Statutory Framework for Marital Integrity
The Joseph Shine Judgement and Its Legal Impact
In 2018, the Supreme Court of India in Joseph Shine v. Union of India¹ struck down Section 497 of the Indian Penal Code, 1860, along with Section 198(2) of the Code of Criminal Procedure, 1973. Adultery ceased to be a criminal offence in India. The landmark ruling was celebrated across legal circles as a victory for individual privacy and gender equality.
But eight years later, the real-world consequences of this statutory void are starkly visible across Indian society. Extra-marital affairs continue to destroy families, push loyal spouses into severe psychological trauma, ruin the future of young children, and directly trigger hundreds of brutal domestic crimes, suicides, and homicides every year.
Why Adultery Should Be Criminalised Again
The core argument is clear and urgent: adultery must be made a criminal offence again. Civil remedies or divorce provisions alone are entirely insufficient to address the gravity of this social harm. Divorce is not a punishment under any statutory law; it is merely legal separation.
Under the current framework, the person who knowingly breaks a marriage suffers no statutory penalty or criminal accountability. Meanwhile, the loyal, non-breaching spouse loses their home, emotional peace, dignity, reputation, and family structure. This setup fails the fundamental test of justice.
Revisiting Joseph Shine and Gender Equality
In Joseph Shine, the Supreme Court struck down Section 497 because the colonial provision was discriminatory, punishing only male offenders and treating married women as passive property of their husbands. The court rightly objected to gender inequality, but it erred in declaring that extramarital betrayal itself should be completely removed from penal law.
The correct constitutional remedy was not to abolish the penal law entirely but to modify it into a gender-neutral offence. Whether it is a man or a woman, whoever knowingly breaks a marriage covenant must face criminal accountability.
Extra-Marital Affairs and Their Social Consequences
Dismissing extra-marital betrayal as a strictly ‘personal matter’ or a ‘private choice’ ignores the empirical reality recorded by state agencies. Infidelity is not an isolated private mistake; it is a primary driver that repeatedly fractures social order and leads to extreme violent crime.
NCRB Data on Murders Linked to Illicit Relationships
Official data published by the National Crime Records Bureau (NCRB) under the Ministry of Home Affairs in its annual Crime in India reports consistently identifies ‘Illicit Relationship’ as one of the single largest motives for murder across the nation.³..
In 2018 alone, NCRB Table 2A.2 recorded 1,658 murders driven explicitly by illicit relationships, with major states like Maharashtra recording 256 murders, Andhra Pradesh 178, Madhya Pradesh 169, Uttar Pradesh 147, and Karnataka 1154. In 2019, the all-India tally stood at 1,602 murders, with Maharashtra logging 245 murders and Tamil Nadu 2,115. Even in 2020, 1,588 murders were officially catalogued under the head of illicit relationships.⁶. This longitudinal reality is further supported by the 2022 NCRB records, which document a staggering 1,420 homicides nationwide driven solely by this behavioural friction.⁷.
Suicides Linked to Extra-Marital Affairs
Furthermore, the NCRB Accidental Deaths & Suicides in India reports show that extramarital affairs directly account for over 1,200 suicides annually across various age groups.⁸. When an act consistently triggers nearly 1,500 homicides and over 1,200 suicides every single year, calling it a purely ‘personal matter’ is a dangerous legal fiction.
The Legal Vacuum and Absence of Accountability
Today, a third party or an unfaithful spouse can enter into an extra-marital relationship, dismantle a domestic unit, and remain completely immune from legal liability outside of civil divorce proceedings. When aggrieved spouses approach law enforcement agencies, police officials routinely refuse to entertain complaints or register FIRs, categorising extra-marital breach as a private affair exempt from state intervention.
This total absence of legal accountability creates a dangerous social perception that the legal order tacitly condones marital infidelity. Silence within penal codes functions in the public consciousness as implicit permission. The resulting legal vacuum directly undermines public trust in statutory mechanisms designed to protect domestic stability.
Privacy Under Article 21 and the Criminalisation of Adultery
Opponents of criminalising adultery argue that penal sanctions violate individual privacy protected under K.S. Puttaswamy v. Union of India.⁹. However, privacy under Article 21 of the Constitution of India is not absolute.
Additionally, proponents who rely on Article 21 privacy protections overlook judicial precedent such as Sukhdev Saha v. State of Andhra Pradesh [11], where the Supreme Court affirmed that Article 21 encompasses the right to mental health—a right severely compromised by Post-Infidelity Stress Disorder (PISD) following the discovery of betrayal.
Constitutional Obligations Under the Directive Principles
This statutory vacuum also constitutes a direct violation of Directive Principles of State Policy under Article 38 of the Constitution of India.¹². Under Article 38, the State is constitutionally mandated to secure and protect a social order in which justice—social, economic, and political—shall inform all institutions of national life. Furthermore, under Article 39(f)(13), the State is required to protect youth and dependants from moral and material abandonment caused by broken families. By leaving the institution of marriage entirely vulnerable to deliberate third-party disruptions without statutory deterrence, the State actively retreats from its constitutional obligations to maintain domestic safety and stable social order.
Marriage as a Legal and Social Institution
Marriage is a solemn contract and legal status regulated by the state. When individuals enter into a recognised marriage, they voluntarily accept the legal duty of fidelity. Betraying that legal duty is not an exercise of fundamental privacy rights. If an individual seeks absolute sexual freedom without obligations, they should choose not to marry. But after entering into marriage, betraying a spouse cannot be shielded in the name of privacy.
Criminal Law and Moral Accountability
Critics also contend that criminal law cannot enforce morality. Yet, substantive criminal law is built upon societal morality codified into statutory provisions. Offences such as fraud, cheating, criminal breach of trust, and bigamy are legislative recognitions of moral wrongs that produce tangible social harm. Inflicting deliberate psychological trauma and destroying a family unit cannot be treated as a lesser offence than financial fraud.
Legislative Representation and the Law Commission of India
This legislative gap has already been formally raised before constitutional authorities. A formal submission under Article 350 of the Constitution of India¹⁴ filed from Buldhana, Maharashtra, drew executive attention to this issue.
Taking cognisance, the Legislative Department of the Ministry of Law and Justice referred the matter to the Law Commission of India vide file track F. No. 27(14)/2025-Leg III dated May 4, 2026. Subsequent inter-ministerial communications—including Legislative Department OM No. 27(9)/2026-Leg-III16 and Ministry of Home Affairs Judicial Wing OM No. 12/1/2026-Judt. Cell-I17—further highlight the ongoing policy debate surrounding statutory protections against infidelity.
The Need for a Gender-Neutral Adultery Law
As the Law Commission evaluates family law reforms and uniform standards, it must recommend a clear, gender-neutral penal provision restoring adultery as a criminal offence with statutory imprisonment. Divorce will not save the institution of marriage. Only a gender-neutral penal law carrying statutory punishment will protect families, prevent violent crime, and uphold justice for victims of extra-marital betrayal.
End-Notes
- Joseph Shine v. Union of India, (2019) 3 SCC 39; 2018 SCC OnLine SC 1676.
- Ibid.
- National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India, Crime in India Reports.
- NCRB, Crime in India 2018, Table 2A.2 (Motives of Murder), p. 161.
- NCRB, Crime in India 2019, Table 2A.2 (Motives of Murder), p. 161.
- NCRB, Crime in India 2020, Table 2A.2 (Motives of Murder), p. 165.
- NCRB, Crime in India 2022, Table 2A.2 (Motives of Murder), p. 165.
- NCRB, Accidental Deaths & Suicides in India 2018, Table 2(E) (Age and Gender-wise Distribution of Suicides – Cause-wise: Extra Marital Affairs), pp. 204–205.
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- Constitution of India, Art. 21.
- Sukhdev Saha v. State of Andhra Pradesh, (2014) 4 SCC 303.
- Constitution of India, Art. 38.
- Constitution of India, Art. 39(f).
- Constitution of India, Art. 350.
- Government of India, Ministry of Law and Justice, Legislative Department, Office Memorandum F. No. 27(14)/2025-Leg II, dated May 4, 2026.
- Government of India, Ministry of Law and Justice, Legislative Department, Office Memorandum F. No. 27(9)/2026-Leg-III, dated July 2026.
- Government of India, Ministry of Home Affairs, Judicial Wing, Office Memorandum F. No. 12/1/2026-Judt. Cell-I, dated September 25, 2026.
