According to section 497 of the IPC, adultery is defined, the Supreme court
upheld the validity of this section despite the fact that it had been addressed
and brought up in court many times. The 158-year-old morality law prohibiting
adultery was overturned by the Indian Supreme court on 27th September 2018 in
the case of Joseph shine vs. Union of India . In the judgement, it is well
explained that how the concept of adultery has grown over time. The control over
the sexual agency of the spouse, the wife as the property of the husband. The
women's devotion and the husband's control over it, are considered as
maintaining the possession of a husband in his wife.
Joseph Shine, a non-Kerala resident, filed the writ petition and raised the
issue of the constitutionality of Section 497 of the IPC. The judgement of
current case overruled all the past judgements which upheld the prohibition of
adultery. The issue arises that whether adultery can be considered under crime
or not. The opinion of the court is that adultery does not match the definition
of a crime.
If adultery can be considered as a crime, there would be a serious
breach into the extreme privacy of the marriage relationship. It would be
preferable if adultery could still be used as grounds for divorce. Although
adultery is now legal, but society still views it as immoral. Adultery is
exclusively regarded as a civil wrong, and the only available remedy is divorce. Honourable Supreme court of India cannot interfere in a person's private or
In The Supreme Court Of India
Name Of The Case- Joseph Shine Vs. Union Of India
Citation- Writ Petition (Crl) No. 194 Of 2017
Date Of The Judgement- 27, September 2018
Appelant- Joseph Shine
Respondant- Union Of India
Bench/Judge- Chief Justice Dipak Mishra, Justice A. Khanwilkar, Justice R. F.
Nariman, Justice D. Y. Chandrachud, Justice Indu Malhotra
Statutes Involved- Constitution Of India; Indian Penal Code, 1860; Criminal
Procedure Code, 1973
Important Provision- Indian Penal Code, 1860, S. 497, S. 498, S.
498-Aconstitution Of India, Arts. 14, Arts. 15(1), Arts. 21, Arts. 15(3), Arts.
32, Arts.228 Criminal Procedure Code, 1973, S. 198
In India, male chauvinism and patriarchy were the guiding principles in the
legalisation of adultery. When a man engages in sexual activity with a woman who
is the wife of another man, adultery is committed. And it won't be adultery if
the male gives his consent or complicity to the act. Adultery was considered a
shameful behaviour in ancient times, whether it was committed by a married man
or woman. In India, a woman is not viewed as the perpetrator of an act but
rather as the victim of a man's seduction into committing the crime. Our
constitutional principles, such as equality, non-discrimination, and the freedom
to live in dignity, among others, are violated by the statute of adultery.
Lord Macaulay, the creator of Indian Penal Code "criticized its presence in the
penal code as an offence rather suggested that it should be better to place in
the civil wrong". The law changes over time, and numerous recent judgements have
expanded the scope of fundamental rights to reflect shifting societal ideals and
rising individual liberties.
Since its commencement, Section 497 of the Indian Penal Code has been the
subject of debate and controversies for a number of reasons, including its
gender bias approach, equality, and ability to reflect cultural conflicts.
Strong arguments have been made both for its modification and removal from penal
The Indian Penal Code Section 497 has been challenging on the grounds that it
frequently violates the spirit of equality inculcated in the constitution. One
of the most controversial cases was in 1951, when Yusuf Abdul Aziz, "who was
charged for adultery, struggle before the Bombay High Court that Section 497 of
IPC is unconstitutional as it in infringement of Article 14 and 15 of the
constitution as it intervenes unequally between a man and women by making the
former of women and against men".
Writ Petition: "writ petition is an order by a higher court to a lower court or
courts, directing them to do something or stop them from doing something. Writ
is a form of written command in the name of the court. It directs you to act in
a specific way.
In the Indian legal system, you can file or draft a writ petition under Article
226 in the High Court and under Article 32 of the Indian Constitution in the
Supreme Court. Article 32 and Article 226 of the Indian constitution elaborate
on the process and meaning of the writ petition. Or else, at any point in time,
you can consult an expert lawyer to draft a writ petition for you. You can also
file a criminal or civil writ petition in the High Court or the Supreme Court,
depending on the case matter. In case the High Court doesn't give a suitable
judgment, you can then submit the petition of the writ in the Supreme Court."
Facts Of The Case
Joseph Shine, hotelier filed a writ petition under Article 32 challenging the
constitutionality of section 497 of the Indian Penal Code read with section 198
of the CrPC, which is the infringement of Articles 14, 15, and 21 of the
constitution. The major reason of this petition was to protect Indian males from
being punished for extramarital affairs by women or their husbands. In Kerala,
the close friend of the petitioner committed suicide after a female co-worker
falsely accused him of rape.
The petitioner argued that the provision of
adultery was arbitrary and discriminatory against women. A powerful example of
sexual injustice, authoritative imperialism, and patriotic masculinity is
Section 497 of Indian Penal Code. The traditional context in which section 497
of the IPC was drafted was not appropriate in contemporary culture. This law
undermines a woman's dignity.
Issue Raised Before The Court:
Arguments From The Appellant Side
- Whether the section 497 of Indian Penal Code is unconstitutional
- Whether section 497 of the IPC read with section 198 of the CrPc is the
infringement of Article 14, 15 and 21 of the constitution of India?
- Whether the provision for adultery is arbitrary and discriminative under
Learned counsel for the petitioner submitted that section 497 tended to violate
the fundamental rights of the person. It was argued that the law provided for a
man's punishment in case of adultery, whereas no action was taken against the
It was also argued that a woman was not permitted to file a complaint against
her husband for adultery due to the lack of provision. Adherence of the women,
and the husband's control over it, is seen as maintaining the property interest
of a husband in his wife.
Learned counsel for the petitioner argued that the section 497 of the IPC is the
violation of fundamental rights granted under Article 14, 15 and 21 of the
constitution, due to their paternalistic and arbitrary in nature.
Learned counsel for the petitioner stated that the provision for adultery is
discriminative on the grounds of gender as it provides only men with the right
to prosecute against the adultery which is the violation of Article 15 of the
Arguments From The Respondent Side
Learned counsel representing the respondent argued that allowing the individual
person have sexual relations outside the marriage would destroy the institution
of marriage and thus, the provision of criminalising the adultery was essential
for maintaining the purity of marriage.
It is also argued that section 497 of IPC acting as a protector for the society
from this immoral conduct which outrages the institution of marriage, hence it
should not be struck down.
Learned counsel representing the respondent request the court to delete the
portion which is unconstitutional but keep the provision of adultery.
Constitution of India:
- Article 14:
Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth .
- Article 15(1):
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them .
- Article 21:
Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 15(3):
Nothing in this article shall prevent the State from making any special provision for women and children .
- Article 32:
Remedies for enforcement of rights conferred by this Part
The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part
Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2)
The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
Transfer of certain cases to High Court If the High Court is satisfied that a
case pending in a court subordinate to it involves a substantial question of law
as to the interpretation of this Constitution the determination of which is
necessary for the disposal of the case, it shall withdraw the case and may
either dispose of the case itself, or
determine the said question of law and return the case to the court from which
the case has been so withdrawn together with a copy of its judgment on such
question, and the said court shall on receipt thereof proceed to dispose of the
case in conformity with such judgment 
Indian Penal Code, 1860
Section 497: Adultery:
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 offence of
rape, is guilty of the offence 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
Enticing or taking away or detaining with criminal intent a married
woman�Whoever takes or entices away any woman who is and whom he knows or has
reason to believe to be the wife of any other man, from that man, or from any
person having the care of her on behalf of that man, with intent that she may
have illicit intercourse with any person, or conceals or detains with that
intent any such woman, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
Husband or relative of husband of a woman subjecting her to cruelty. � Whoever,
being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be pun�ished with imprisonment for a term which may extend to
three years and shall also be liable to fine. Explanation. � For the purpose of
this section, "cruelty" means:
Any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to
her to meet such demand.
Criminal Procedure Code, 1973:
Section 198: Prosecution for offences against marriage:
- No Court shall take cognizance of an offence punishable under Chapter XX
of the Indian Penal Code (45 of 1860) except upon a complaint made by some
person aggrieved by the offence: Provided that:
- Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
- where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf.
- where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code, 1860 is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
- For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code, provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
- When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
- The authorisation referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer.
- Any document purporting to be such an authorisation and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
- No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
- The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence .
The judgement was given by Chief Justice of India, Deepak Mishra starting with
the statement "Proving that wife's are not the property of the husbands and
husbands are not their masters."
The Hon'ble Court of India declared Section 497 of the IPC to be
unconstitutional because it violates Articles 14, 15, and 21 of the Constitution
and determined that Section 198(2) of the CrPC was unconstitutional insofar as
it applied to Section 497 of the IPC. This decision overturned several earlier
rulings that had upheld the criminalization of adultery.
According to the ruling, section 497 of the IPC is outdated and unconstitutional
because it deprives women of their freedom, dignity, and privacy. It is claimed
that the contested provision is the violation of a women's right to life and
personal liberty by endorsing the notion of marriage. By applying the penalties
of the penal code to a gender-based approach to the relationship of men and
women, equality is defeated. When both the spouses respect each other with
respect and equality then only the respect of women for sexual liberty is
achieved. According to Article 21 of the Constitution, sexual autonomy falls
under the category of personal liberty.
The apex court five judge bench headed by Chief Justice Dipak Mishra said that:
"The beauty of the Constitution is that it includes the I, me and you".
There were various times before the question has been arisen on the
constitutional validity of section 497 of the IPC. In the case of Yusuf Abdul
Aziz vs. State of Bombay 14], "in this case, the constitutionality of Section
497 was challenged on the grounds that it violates Article 14 and Article 15 of
the constitution, by saying a wife cannot be a culprit even as an abettor. The
3-judge bench upheld the validity of the said provision as it is a special
provision created for women and is saved by Article 15(3). And Article 14 of the
constitution is a general provision and has to be read with other Articles and
gender is just classification, so by combining both it is valid."
There were another landmark case Sowmithri Vishnu vs. Union of India , "in
this case, a petition was filed under Article 32 challenging the validity of
Section 497 of IPC. The challenge was based on the fact that the said provision
does not provide the right for a woman to prosecute the woman with whom her
husband has committed adultery and hence is discriminatory. The 3 -judge bench
in this case also upheld the validity by stating that extending the ambit of
offences should be done by the legislature and not by the courts. The offence of
breaking a family is no smaller than breaking a house, so the punishment is
justified. The court accepted that only men could commit such an offence."
In the aforementioned case, which has been brought before the Supreme Court of
India, the issue of whether Section 497 of the IPC and section 198 of the CrPC
are constitutionally valid has come up. Sections 497 of the IPC and section 198
of the CrPC are both constitutionally legitimate, the court determined in both
In the present case of Joseph Shine vs. Union of India , it was decided that
adultery is not a criminal offence. A crime is committed against society as a
whole, although adultery is a personal matter. Adultery does not fit into the
definition of a crime. Adultery, on the other hand, is a legal basis for divorce
and might be regarded as a civil wrong.
"Husband is not the master of his wife, the fact that women should not be
consider as the property of their husband, they have equal status in the society
and they should be given every opportunity to put their stance forward."
Justice Indu Malhotra said that the provision of adultery is the violation of
fundamental right of a woman right to privacy under Article 21 of the
Constitution laid down in the case Justice K.S. Puttaswamy & Anr. vs. Union of
India , "in this case Supreme court held that the right to privacy was a
fundamental right derived from life and personal liberty under Article 21 and
from Part 3 of the Constitution. This right is subject to reasonable
It was pointed out by the court that the nature of section 497 of the IPC is
Analysis (Rule Applied)
It was observed, "Thinking of adultery from the point of view of criminality
would be a retrograde step. This Court has travelled on the path of
transformative constitutionalism and, therefore, it is absolutely inappropriate
to sit in a time machine to a different era where the machine moves on the path
of regression. Hence, to treat adultery as a crime would be unwarranted in law."
So, the interpretation rule that has been used by the court while deciding the
case was Harmonious rule and Golden rule
According to the Court, Adultery as crime in India would face the frown of
Articles 14 and 21 of the Constitution and thinking of it as a crime would be a
retrograde step. Thus, the court decided to take the path of transformative
constitutionalism and treating Adultery as a crime was unwarranted in law. The
Court held that Section 497 IPC was unconstitutional and that adultery would not
be treated as an offence and it also declared Section 198 of CrPC
Adultery, in my opinion, not only erodes a woman's dignity but also constitutes
gender discrimination. When society was characterized by patriarchy and
paternalism, adultery was deemed to be unlawful. In the current situation,
equality and liberalism have confiscated the planet. Laws that are
discriminatory against women are intended to be repealed through legislative
An important milestone in Indian legal history was reached by the court when it
declared this law was unconstitutional. The honourable court correctly
acknowledged the values of equality and women's dignity. It clearly shows a
positive sign and it is a way towards women's empowerment.
"The legal subordination of one gender to another is wrong in itself, and now
one of the chief hindrances to human improvement and that it ought to be
replaced by a system of perfect equality, admitting no power and privilege on
one hand, nor disability on the other."