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Decriminalizing 497

Joseph Shine v. Union of India

In October 2017, Joseph Shine, an NRI from Kerala, filed a PIL (public interest litigation) under Article 32 of the Indian Constitution. He challenged the constitutionality of the section 497 of Indian Penal Code on the grounds that this law was biased as only men could have been prosecuted under this law not women.

The thing that triggered him to challenge the legality of Section 497 was when one of his close friends from Kerala committed suicide after a woman colleague of his made serious rape charges on him. Joseph Shine said that he just wanted to protect Indian men from being punished for having extra marital affairs by vindictive women or their husbands. Section 497 was drafted with a traditional plan which is no longer applicable in Modern Indian Society.

Adultery was an offence against marriage in which under Section 497 along with Section 198(2) of CrPC gave power to the husband to sue any third person involved sexually with his wife without his consent.. Section 497 didn’t punish a man having sexual intercourse with a widow, a divorced woman, or a married woman with the consent of her husband.

Section 497 of IPC along with Section 198(2) of CrPC reads as follows:

  • Section 497 of IPC:

    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.
  • Section 198(2) of CrPC:

    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 com- mitted may, with the leave of the Court, make a complaint on his behalf.
The court referred to the cases of Yusuf Abdul Aziz vs. State of Bombay, V. Revathi vs. Union of India and others, Sowmithri Vishnu vs. Union of India and others, wherein the provision was held legally valid.

The Supreme Court in its previous decision in December 2017 issued a notice and observed that the provision awards relaxation to the spouse by regarding her as a victim and that when an offense is perpetrated by both of them, one is at risk for the criminal offense however the other is pardoned.

Issues Raised:

  1. Whether Section 497 of IPC is unconstitutional on the grounds of being violative of fundamental rights (i.e. Article 14, 15 and 21) by exempting women from getting prosecuted?
  2. Whether the benefit of Section 497 be given to only one gender?
  3. Whether Section 497 is an excessive penalty clause which needs to be decriminalized?
  4. Whether Section 198(2) of the CrPC 1973, is unlawful being unjust, illicit and violative of fundamental rights?

Contention/ Arguments By The Petitioner:

  1. The first petition that the petitioner filed was that Section 497 is indirectly discriminates against women by limiting their sexual freedom after marriage but sets no limit for a married man and this indicates that women were treated as a property of men.
  2. The second petition that he filed was that this Section is violative of Articles 14 and 15 of the Indian Constitution since Section 497 punishes only men when adultery is actually an act committed by both men and women.
  3. The third petition that he filed was that this Section doesn’t give women the right to sue her adulterous husband which is in violation of article 14.
  4. The fourth petition that he filed was that the Section 497 violates article 21(right to privacy) by not giving the decisional privacy to both men and women to enter into a sexual relationship outside marriage.
  5. Petitioner argued that Section 497 was framed in a historical background which is no longer relevant in the modern world.
  6. Section 497 punishes only men for the offense of adultery and not women who is also a pari-delicto in the commitment of adultery.
  7. Section 497 condemns adultery dependent on an order made on sex alone, such a characterization bears no normal nexus with the article tried to be accomplished and is consequently oppressive.

Contention/ Arguments By The Respondent:

  1. Article 21 i.e. Right to Privacy and Personal liberty is subjected to certain reasonable restrictions thus no person can plead the freedom to have a consensual sexual relationship outside marriage under this article.
  2. Adultery offends the morality of society, jeopardizes marriage between two adults and affects the moral growth and character of children. Thus, it needs to be penalized as against the law.
  3. Protective discrimination provided under Article 15 enables Section 497 for protective discrimination against men.
  4. Adultery is anything but a harmless wrongdoing, in spite of the fact that it is carried out in private. It abuses the right of a life partner to marital obedience, the sacredness of marriage, and breaks the crucial unit of the family influencing the development and prosperity of the kids.
  5. Section 497 is protecting marriages and advancing social prosperity by stopping people from taking part in a thing which is potentially harmful to a conjugal relationship.
  6. Section 497 gives the state a power to penalize a wrongdoing that impacts the stability and progress of a fundamental unit of society i.e. family.

Major Findings Of The Court:

  1. The Court observed that Section 497 treats women as subordinate to men as much as it sets out that when there is intrigue or assent of the man, there is no offense. It regards her as the property of man and absolutely compliant to the desire of the ace.
  2. The court found out that the freedom to have a relationship out of marriage with the consent of both the parties by a spouse equivalent, doesn’t need any authorization under Article 21. And, private liberty is not absolute and is subjected to certain reasonable restrictions.
  3. An individual must have the freedom to make a choice in terms of his/her sexuality without public interference through criminal sanctions.
  4. Section 497 was authorized in 1860’s. Thus, a pre-constitutional law like Section 497 which was framed by a foreign government can’t be assumed constitutional in modern society.
  5. Women can no more be governed with patriarchal rule and masculine dominance.
  6. Article 15(3) can't work as a cover for exclusion from an offense having legal consequences, as a section which propagates mistreatment of ladies is unreasonable in law, and can't seek shelter under the appearance of protective discrimination.
  7. Section 497 neglects to meet the three crease prerequisite for a limitation on Article 21 to be reasonable and legitimate and these are; Proportionality. Lawfulness and Need.


  1. The Supreme Court of India in its judgement said that:
    YES, Section 497 of IPC is unconstitutional on the grounds of being violative of fundamental rights (i.e. Article 14, 15 and 21) and held that Section 497 deprives women of her self-governance, respect and protection. Section 497 strengthens the idea that women are inconsistent members in a marriage, unequipped for openly consenting to a sexual demonstration in a legitimate request which views them as a sexual property of their spouse and is violative of Article 14.

    It depends on sex generalizations and abuses the non-separation provision of Article 15. It limits her right to life and personal liberty by embracing a thought of marriage which undercuts equality. Regard for sexual self-sufficiency is set up only when both the life partners treat each other with nobility and correspondence, but this section is a forswearing of meaningful uniformity in that.
  2. The Supreme Court held that:
    NO, a husband is not the master of his wife and the women ought not to be considered as a property of their spouses or fathers. They have an equivalent status in the public arena and ought to be allowed each chance to put their position forward.
  3. The Court said that:
    Yes, Section 497 is an excessive penalty clause which needs to be decriminalized.

    A wrongdoing is something which is submitted on the general public overall, while adultery is an individual issue. Adultery doesn’t fit into the idea of the wrongdoing as that would some way or another attack the extraordinary protection circle of a marriage. The decision must be left with the couple to choose after the commitment of adultery as it is something which should include just their circumspection.
  4. Supreme Court held that Section 497 is absolutely arbitrary as it is totally and plainly self-assertive and unreasonable on the grounds that it presents a permit on the spouse to manage his wife. Section 497 of IPC doesn’t give the right to a wife to sue her husband for the commitment of adultery which is amazingly extreme and unjust.

The Apex Court strucked down the law of Adultery by naming it as an ancient law and opined that the arrangement truly makes a scratch on the individual free character of a lady when the accentuation is laid on the intrigue or the assent of the spouse. In addition, the Supreme Court stated that adultery can be a ground for common issues, for example, disintegration of marriage i.e. Divorce, but it can't be treated as a criminal offense.

Adultery probably won't be the reason for a miserable marriage notwithstanding, it could be the aftereffect of a despondent marriage.
The court held that YES, Section 198(2) of the CrPC 1973, is unlawful being unjust, illicit and violative of fundamental rights thus making it unlawful, thereby decriminalizing the offense of adultery. Justice DY Chandrachud affirmed that, the historical backdrop of Section 497 uncovers that the law on adultery was for the benefit of the husband to assure about responsibility for sexuality of his better half. It was planned for keeping the lady from practicing her sexual activities.

Ratio Decidendi:

It was detectable by the court that with the progression of time, they need to perceive the calculated equity of women and the basic respect which a woman is qualified to have. There can be no restrictions on the same but the Section 497 viable did so by making harmful differentiations based on sex generalizations which creates a poise in the individual dignity of women.. In addition, the component of the assent of the husband, stereotypes the subjection of ladies. Along these lines, the court held that they have no hesitation in proclaiming it to be unlawful.

The judgement has advanced a good step against the patriarchal norms by decriminalizing Section 497 of IPC and Section 198(2) of CrPC under which our society has limited the rights and liberty of a woman. These laws were discriminative in multiple ways, like by not giving women the right to sue her husband for the commission of Adultery, by not punishing a woman, even as an abettor. These laws showed husband as the master of their wife by depriving her of self-governance, respect and protection which is wrong as both have an equivalent status in the public arena and ought to be allowed each chance to put their position forward.

The Supreme Court judgment will be a landmark judgment in giving women equal rights in implicit understandings like marriage. The adultery law has for a considerable length of time turned into a way to abuse a married woman and incur numerous barbarities. It was a way to address and control the sexuality of the lady. The act of adultery was seen not as the product of unhappy marriage but a cause of unhappy marriage. In addition, Section 497 was an appalling occurrence of gender inequality, and male patriotism.

With total rights come total outcomes. Marriage doesn't mean surrendering self-rule of one to the other. Capacity to settle on sexual decisions is basic to human freedom. Society forces unthinkable temperance on a woman, limits her to spaces, generalizes her and says she ought to be pure. The Doctrine of Coverture on which Section 497 depends is not perceived by the constitution as it holds that a woman loses her character and legitimate rights with marriage, which is violative of her fundamental rights.

The predominant law wasn't in consonance with the changed occasions, the law was neither socially adept nor did it remain to the standards of correspondence, from outright conservatism to total freedom, the social texture of our nation has experienced a radical change, thus, it needed to be decriminalized. The law seemed to be as pro-women but was actually anti-women.

Name of the Case – Joseph Shine v. Union of India
Date of Judgement – July 27th, 2018
Court - Supreme Court of India
Bench (Judges) - Justice Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra, Justice R.F. Nariman. (5 Judges Bench)
Petitioner - Joseph Shine
Respondent - Union of India
Citation - 2018 SC 1676    

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