A critical review of Judgement in Joseph Shrine vs Union

of India

Hidayatullah National Law University,

Raipur, Chhattisgarh.

ENGLISH PROJECT

Submitted To: Submitted By:

Mr. Jeevan Sagar, Prashant Kerketta,

Faculty, English Roll no. 119

Semester I
Declaration

I hereby declare that this research work titled “A critical review of judgment in joseph

shrine vs union of Inida” is my own work and represents my own ideas, and where others’

ideas or words have been included, I have adequately cited and referenced the original

sources. I also declare that I have adhered to all principles of academic honesty and integrity

and have not misrepresented or fabricated or falsified any idea/data/fact/source in my

submission.

Prashant Kerketta

Roll no. 119,

Section B

Semester 1st,

B.A.L.L.B (Hons.)

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 Acknowledgement

It gives me immense pleasure to write this project “A critical review on Joseph Shrine vs

Union of Inida”. Firstly, thanks to the Almighty who gave me the strength and determination

to put all my endeavors into this work. Secondly, I’d like to thank our English Faculty, Mr.

Jeevan Sagar for allotting such an enlightening topic and for all the help and co-operation

extended by her in helping scrutinize the same. Thirdly, I’d like to thank my parents and

friends for all their constant support without which this venture would not have been

possible.

Last but not the least, I would like to thank my respected seniors for extending their help in

finding the information and articles required for the work.

Prashant Kerketta

Roll no. 119,

Semester 1,

B.A.L.L.B (Hons.)

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 Abstract

The word “adultery” derives its origin from the French word “avoutre”, which has evolved
from the Latin verb “adulterium” which means “to corrupt”. The dictionary meaning of
adultery is that a married man has sex with a woman with whom he has not married.
According to Indian law , Section 497  makes adultery a criminal offence, and punishes the
offender of imprisonment up to 5 years and fine. The offence of adultery under Section 497 is
very narrow in scope as compared to the misconduct of adultery as in divorce cases. The
offence can be committed only   by a man who had sexual intercourse with the wife of
another man without his consent or connivance. Here, the wife is not punishable for being an
adulteress, or even as an abettor of the offence.
Section 198(2) of the criminal procedure code states “person aggrieved”.
Sub-section (2) states that the husband of the woman shall be deemed to be aggrieved by an
offence committed under Section 497 IPC and in the absence of husband, some person who
had care of the woman on his behalf at such time when the offence was committed.
It does not consider the wife of the adulterer as an aggrieved person.
Section 497 IPC and Section 198(2) criminal procedure code together constitute a legislative
provision to deal with the offence of adultery which have been held unconstitutional and
struck down by the Supreme Court in the case -Joseph Shine v. Union of India.
The facts and points by which section 497 of the Indian penal code , was held
unconstitutional have discussed herein after with a brief analysis of the section.

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 Contents

Abstract 4

Introduction 6

History of the statutory provision 8

Analysis of the Statutory Provision 9

Case Laws 12

Conclusion 15

Refrences/ Bibliography 16

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 Introduction

Marriages are made in heaven and are performed on earth. Over hundreds of years this was
believed and is always considered as a sacred bond between the husband and wife, so it is
respected among all the societies and cultures irrespective of caste or religion. Whereas now
we live in a very competitive world where both husband and wife have to participate in
growing world and has to ignore certain gender roles, there arises misuse or abuse of
relationship and so needed to have evolution in law and customs.
My Submission also deals with the decriminalisation of Section 497 of IPC with regard to
submission of support taking view of saving the sanctity of marriage.

Section 497 of Indian Penal code state that- 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
abettor.

The Problem with the section-

 The above statement in the section sometimes read as how the consent and
connivance of a man matters to have sexual intercourse with the wife, its
demoralizing for a women’s dignity. It also shows the true face of old law where a
women’s individual decision is under the husband liberty as he is the master of
women and house and depict wife as a speechless servant and if one has the consent
and connivance of her husband, before having sex with her, would not amount the
charge of adultery looks uglier.
 In Indian society, especially monogamous society where marriage is considered as
exclusive and sacred there is no place for adultery and thus it is unacceptable.
However this moral criticism is not enough to stop people in indulging into

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 extramarital affairs. Indian society is a type of patriarchal system. Women were
always been dominated by the men and men always enjoyed such dominance. The job
of women was restricted to household. All major and minor decisions of her life were
taken by men, which means father before her marriage and then her husband after
marriage. This very nature is reflected under section 497 which punishes a man for
adultery.1 But under same circumstances, if the wife finds that her husband is
involved in a sexual relationship with other women, then section 497 is not applicable
in such scenario. Thus this section is ineffective when seen through the lens of a
woman.

Modification in this law was a much-needed step to make it more valid and effective law, PIL
seeking modification in 157 years old law of adultery was a perfect move to modify such a
discriminatory law. It was also a long time plea in many cases that for the same amount of an
offence if a man is punishable, woman should also get punished in the similar way, otherwise
right to equality guaranteed by the constitution of India, carries no importance. There should
not be any discrimination in the amount of the charges based on gender, which is duly
rejected by Hon’ble supreme court explaining how right to equality is positive with regard to
protection of women and securing their wellbeing and not being used to harm sanctity of
marriage. Decriminalising adultery has certainly shuts the criticism of only male being
punished for same offence, but also it is shocking judgement for the people who beliefs
believes sexual loyalty in marriage has been devastated by this.

1
[]https://www.civilserviceindia.com/subject/Essay/adultery-is-not-a-crime.html

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History of the Statutory Provision

According to Justice R F Nariman – all the ancient civilizations have punished the sin of
adultery.
In India, Manusmriti has prescribed punishment for such people who were addicted to sex
with others wives which by the banishment of the offender.
The Dharmasutras speaks with different voices. In Apastamba Dharmasutra adultery is
punishable as a crime, and the punishment shall depend upon the caste or class of the man or
women.2

Judaism, which is also considered as one of the most ancient religion, which follows the ten
commandments believed to be delivered by the God to Moses on Mount Sinai, also enriches
the sin of adultery in its seventh commandment as – thou shall not commit adultery

In Christianity, adultery is considered as a sin and immoral or both men and women.
Section 497 is a pre-constitutional law enacted in early 1860’s. At that time, women had no
rights independent of their husbands, and were considered as “property” of their husbands.
Thus, the offence of adultery was considered as an suffering to the husband, as it was
considered to be a “theft” of his property, for which he can proceed to prosecute and punish
such offender. The first draft of the IPC was released by the Law Commission of India in
1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery
or marital infidelity was a private wrong between the parties, and not a criminal offence
however, it was overruled by the other members of the Law Commission.

Ingredients
In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;
(ii) The man who has sexual intercourse with the married woman must know or has reason to
believe that she is the wife of another man;

2
http://www.legalserviceindia.com/legal/article-1140-decriminalization-of-adultery-in-india.html

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(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;
(iv) Sexual intercourse with the married woman must take place without the consent or
connivance of her husband.

Analysis of the Statutory Provision

Section 497 and section 198(2) of the criminal procedure code was struck down by the
Honourable Supreme court and was held unconstitutional.
Briefing some of the defects which were enumerated in section 497 of Indian penal code and
section 198 of the criminal procedure code.

 Who can file a complaint : Only the husband of the woman with whom the act of
adultery has been committed is treated as an aggrieved person thus only he can file a
complaint. However, in his absence, any person who had the care of the woman on his
behalf at the time when such offence was committed may file a complaint on the
husband’s behalf with the permission of the court stated under Section 198(2) of the
Criminal procedure code.
In the case of Joseph Shrine, court held that this is arbitrary and violative of constitutional
rights.
 Wife has no right to file a complaint: A wife is disabled from prosecuting her husband
for being involved in an adulterous relationship nor she is allowed to file a complaint
against the other women which whom her husband has committed adultery .Thus the law
does not make it an offence for a married man to enter in toan act of sexual intercourse
with a single woman or unmarried women.3

 Who can be prosecuted :It is only the man who has committed adultery can be
prosecuted for committing such act , and not the adulterous woman, even though such
relationship was consensual. The adulterous woman is not even considered to be an
abettor to the offence. Woman was exempted from criminal liability.

 Women were treated as the property of the man : Historically, since adultery
interfered with the “husband’s exclusive property”, it was considered to be the “highest
possible invasion of property”, not less than similar to theft. On giving a read through

3
https://www.scconline.com/blog/post/tag/joseph-shine

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 Section 497, it can be seen that women are treated subordinate to men and as it lays down
that when there is connivance or consent of the husband, there is no offence. This treats
the woman as a chattel. It treats her as the property of the husband and totally under the
will of the her husband . It shows the reflection of the social dominance that was
prevalent when the penal provision was drafted.4

 Section 497 violates Articles 14 [Equality before law] : Section 497 treats men and
women unequally, as women are not subject to prosecution for adultery, and women
cannot prosecute their husbands for adultery. Also, if there is “consent or connivance” of
the husband of a woman who has committed adultery, no offence can be established. The
section lacks an adequately determining principle to criminalise consensual sexual
activity and is manifestly arbitrary and therefore violative of Article 14.

 Section 198(2) CrPC also violates Article 14 [Equality before law] : Section 198(2)
Code of criminal procedure does not consider the wife of the adulterer as an aggrieved
person. The basis of the provision suffers from the absence of logicality of approach and
therefore it suffers from the vice of Article 14 of the Constitution being arbitrary.

 Violation of Article 15(1) [Prohibition of discrimination]: Article 15(1) prohibits the

State from discriminating on grounds because of sex. A husband is considered an
aggrieved party by the law if his wife engages in sexual intercourse with another man, but
the wife is not, if her husband does the same. Viewing from this angle, the offence of
adultery discriminates between a married man and a married woman to her detriment on
the ground of sex only. The provision is discriminatory and therefore, violative of Article
15(1).

 Violation of Article 21 [Right to life] and abusing dignity of women : Dignity of the
individual is the main feature of Article 21. Section 497 effectually curtails the essential
dignity which a woman is entitled to have by creating unfair distinctions based on gender
stereotypes which has created a dent in the individual dignity of women.

 Violation of right to privacy : Sexual privacy has been recognised as a Fundamental

right, protected under the Article 21 of the Constitution. Sharing of physical intimacies is
4
https://clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-challenge-to-section-497-of-the-ipc/

10
 a matter of choice. Binding the sexual freedom of a woman and allowing the
criminalisation of consensual relationships is a denial of her right.

 Section 497 denudes woman’s sexual autonomy: Section 497 denudes a woman of her
sexual autonomy in making its free exercise conditional on the consent of her spouse. In
doing so, it perpetuates the notion that a woman consents to a limited autonomy on
entering marriage. The enforcement of forced female fidelity by curtailing sexual
autonomy is an affront to the fundamental right to dignity and equality.
 Opposed to “constitutional morality”: In any democracy, constitutional morality
requires the assurance of certain rights that are indispensable for the free, equal, and
dignified existence of all the members of society. A commitment to constitutional
morality requires enforcement of the constitutional rights or can say guarantees like
equality before the law, no discrimination on the gender or sex, and dignity, all of which
were affected and violated by the operation of Section 497.
 Premised on sexual stereotypes: Section 497 is premised upon sexual stereotypes that
view women as being passive and devoid of sexual agency. The notion that women are
‘victims’ of adultery and therefore require the beneficial exemption has been deeply
criticized by feminist scholars, who argue that such an understanding of the position of
women is demeaning and fails to recognize them as equally autonomous individuals in
society

 Breakdown of marriage: In many cases, a sexual relationship by one of the spouses

outside of the marriage has led to the breakdown of marriage. But often, such a
relationship may not be the cause but the consequence of a pre-existing disruption of the
marital tie.

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CASE STUDY IN SUPPORT OF MY RESEARCH

Independent Thought v Union of India

In the case of Independent Thought v Union of India5 the constitutionality of Exception 2

to Sec. 375 of IPC was challenged, Where the age of less than 15 years is set to claim a
marital rape however the statutory age to give consent is 18 years of age, that is seen as
narrowing down the scope of marital rape. The judgment was unanimously upheld by the
Supreme Court bench consisting of Chief Justice of India Dipak Mishra, A.M.
Khanwilkar J, Chandrachud J, Nariman J and Indu Malhotra J. The Court held that
“The view that “Marital rape of a child has the potential of destroying the institution of
marriage cannot be accepted “. Court gave the reasoning that divorce and judicial separation
law exists. While divorce may destroy the marriage and judicial separation may dent a
marital relationship, but they do not have the potential of destroying the “institution” of
marriage or even the marriage. They both result in breaking the marriage but this does not
imply that marriage as an institution is being destroyed.”

The judgment has clearly declared that sometimes the law which seems unfair prima
facie, it is actually not likely divorce exist to walk out of a poisonous marriage, judicial
separation exist to avoid divorce, the purpose here is to save marriage, if we look it up the
true purpose of the law we will found that whether wife or not if a person is sexually
attacking someone without consent, it is rape for all, where in case of marriage to a minor in
India it is voidable not void-ab-initio and has deep rooted custom of early marriage so we
possibly cannot completely remove such practice at once but can ensue whether she is your
wife and might marriage demands or allows sexuality but if she is of less than 15 years of age
whether consent given it will be treated as Rape.

Joseph Shrine vs Union of India6

5
Writ Petition (C) 382/2013.

6
2018 SC 1676

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Section 497 has been referred to old and outdated law which has been struck down by a five
judges bench of the apex court. The petition was filed by Joseph shrine and it was 18
September 2018 when the adultery as a criminal offence was struck down in the case ‘Joseph
Shrine vs Union of India.’ The petition had challenged the concept of adultery in contrast
with the Indian laws.

Section- 198:Prosecution for offences against marriage: (1) 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—
(2) For the purpose 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.
This section was also challenged in the court but held as irrelevant as this section protects the
misuse of law by family members of the wedded or others, ultimately protecting the sanctity
of the marriage.

The Supreme court in the current case dealt with three cases regarding the legality of the
adultery and in each case, it upheld the provisions.

There were three occasions before Supreme Court in the case of , Yusuf Abdul Aziz v State
of Bombay7 , Sowmthri Vishnu v Union of India 8 and V. Revathi v Union of India 9
wherein, adultery was challenged in the courtroom but never once, the petition asked to
declare the sections, as unconstitutional which was done in Joesph Shrine v Union of India.
In the case of Yusuf Abdul Aziz v State of Bombay, the petitioner was on trial for adultery,
he challenged Section 497 of Indian Penal Code and stated that this section is contradictory to
Article 14- Right to Equality of the Constitution. He lost his case in Bombay, so he
approached Supreme Court. In Supreme court, he argued that concept of equality enshrined
in Article 14 and 15 is violative under section 497 , by assuming that the offence of adultery
can only be committed by a man and thus the adulterous wife cannot be punished even as an
abettor and this gives women a license to commit adultery. However, the court declared that:

7
Yusuf Abdul Aziz v State of Bombay, 1951(53) Bom LR 736
8
1985 Suppl SCC 137
9
1988 SC 835

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“We are unable to read any such restriction into the clause; nor are we able to agree that a
provision which prohibits punishment is tantamount to a license to commit the offence of
which punishment has been prohibited.”
Article 15 deals with Prohibition of discrimination based on religion, race, caste, sex or place
of birth. Article 15(3) enables the government to make special provisions for women and
children. It was this Article 15(3) which was debated in this case and the court unanimously
through Vivian Bose J declared that the exemption provided by this section is safeguarded by
Article 15(3) of the Constitution.
In the second case, Sowmithri v Union of India10, it was contended that Section 497, being
contrary to Article 14 of the Constitution, makes an irrational classification between women
and men in the sense that it:
(i) Confers upon the husband the right to prosecute the adulterer but it does not confer a
corresponding right upon the wife to prosecute the woman with whom her husband
has committed adultery,
(ii) Does not confer any right on the wife to prosecute the husband who has committed
adultery with another woman, and
(iii) The section does not specify the circumstances where the husband has sexual relations
with unmarried women, resulting that the husbands acquire a free license under the
law to have extramarital relationship with any unmarried women.

The third argument when raised in the sowmithri case that the husband’s are using this
section as a license, a question emerged which was that, a similar argument can also be raised
by man too, that this provision gives license to women as well. Coming back to the
Sowmithri case, the honourable court did not find any weight in the argument of violation of
Article 14 & 15 of women through Section 497 which does not allow women to initiating any
criminal proceeding for the act of adultery against the other women.

The third case of V Revathi v Union of India11, wherein the appellant furnished the same
argument as in the case of Sowmithri which was discussed earlier- of wife being prevented
from punishing her adulterous husband but the petitioner also did not miss the argument that
10
R 1988 SC 835 (4)

11
1988 (12) ACR 338 (SC) , (1988) 3 SCR 73

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that wife of the adulterous husband is also prevented from initiating any proceeding against
the husband.
CONCLUSION

The most seen criticism of the “decriminalisation of adultery” is that it will destroy sanctity
of marriage, it is even submitted by the counsels of the Union of India in the case of Joseph
shrine vs union of India in apex court, this often reflect the thinking or mindset of the people
or can say society which is deeply rooted in their traditions, cultures and morality which
changes time to time to some extent, but which has to change with the passage of time.
Adultery is one of the leading causes of divorce in India and other countries as well. A
person's life is impacted on so many levels. Adultery can cause emotional, physical, and
spiritual distress not only to the persons committing the act but to others around them. When
one is considering adultery, one should take into account the negative long-term effects it can
have upon their life.
An important point which was not discussed enough in the previous cases was that, the
sanctity of marriage cannot be saved from punishing or prosecuting the outsider. When the
act of adultery is committed, the marital bond between husband and wife weakens and
punishing the outsider is actually not a solution. When Section 497 was enacted there were no
codified personal and matrimonial laws like today but they were unequal and inoperative.
Movies and the media are just one of the many ways in which adultery has been promoted
positively. The blockbuster movie "The English Patient" had twelve Oscar nominations
because how adultery portrayed between a good-looking count and a housewife. The media
has also drawn much unneeded attention to adultery as well.
Adultery is such a controversial issue which attracts every person of the society. The
acceptance of adultery law as unconstitutional shows that finally the inherent discrimination
between man and women in under section 497 adultery law has been rectified but we can just
hope that this judgment will pave the path for challenging more discriminatory laws in future.

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REFERENCES:

Websites visited:

1. www.legalserviceindia.com/legal/article-1140-decriminalization-of-adultery-in-
india.html
2. clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-challenge-to-section-
497-of-the-ipc/
3. lawcorner.in/case-analysis-joseph-shine-v-union-of-india-adultery-is-no-longer-be-a-
criminal-offence/
4. www.scobserver.in/court-case/constitutionality-of-adultery-law

Articles from Newspaper and journals:

1. https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-
to-the-institution-of-marriage-in-india/317282
2. https://www.reuters.com/article/us-india-court-adultery/indias-top-court-
decriminalizes-adultery-in-landmark-judgment-idUSKCN1M71FW
3. https://www.scconline.com/blog/post/tag/joseph-shine
4. https://www.livemint.com/Politics/GAX16uG39Rn0D4RvqusuZI/Adultery-no-
longer-a-crime-as-Supreme-Court-strikes-down-Sec.html

Cases Referred

1. Independent Thought v Union of India.

2. Yusuf Abdul Aziz v State of Bombay .
3. Joseph Shrine vs Union of India.
4. Sowmithri v Union of India.
5. V Revathi v Union of India.

Acts Referred

1. The Code of Criminal Procedure, 1973.

2. The Indian Penal Code, 1890.
3. The Constitution of India, 1950.

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