Section 497 IPC criminalised adultery 

by imposing culpability on a man who engages in

sexual intercourse with another person's wife. Adultery was punishable with a maximum
imprisonment of five years.

The Supreme Court held that in order to protect the sanctity of marriage, both the husband
and the wife should not be allowed to file a complaint against each other in case of an
adulterous relationship. However, the court retained the criminalization of marriage under
IPC.

Citation: Joseph Shine vs Union of India, 2018 SC 1676

Date of Judgement: September 27, 2018

Equivalent Citation: 2018 SC 1676

Case No.: N/A

Case type: Civil Writ petition

Writ petition (CRIMINAL) No. 194 OF 2017

Petitioner: Joseph Shine

Respondent: Union of India

Bench:

 Hon’ble Chief Justice of India Deepak Mishra

 Hon’ble Justice A.M khanwilkar
 Hon’ble Justice Indu Malhotra
 Hon’ble Justice D.Y Chandrachud
 Hon’ble Justice R.F Nariman

Court: Supreme court of India

Statue Referred:

 Article 14,15, 21 of Indian constitution

 Section 497 of Indian Penal code
 Section 198 of Code of Criminal Procedure

Cases Referred:

 Yusuf Abdul Aziz vs. State of Bombay (1954) SCR 930,

 Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137,
 V. Revathi vs. Union of India (1988) 2 SCC 72
 W. Kalyani vs. State through Inspector of Police and another (2012) 1 SC 358

Facts:

 The petition was filed by a non-resident of Kerala named Joseph Shine who has raised question on
the constitutionality of the Section 497 of the Indian Penal code.
 Petition was filed under Article 32 and he challenged the constitutionality of Section 497 of IPC
read with Section 198 of Code of Criminal Procedure, he said that this is being violative of Article
14, 15 and 21.
 The reason behind this petition was to shield Indian men from being punished for extra marital
relationships by vengeful women or their husbands.
 As it was observed that, Petitioner’s close friend in Kerala committed suicide when a women co-
worker made malicious rape charge on him.
 Further he claimed that Section 497 is an egregious occurrence of sexuality unfairness,
authoritative imperialism and male patriotism.
 The traditional framework within which Section 497 was drafted, is not any longer applicable in
modern society.
 This was initially a PIL filed against adultery.
 The petitioner claimed the availability for adultery to be arbitrary and discriminatory on the
idea of gender.
 The petitioner claimed that such a law demolishes the dignity of a lady.

Issues involved:

 Whether Section 497 of the IPC violates Article 14,15,21 of Indian constitution?

Contention of Petitioner:

The Counsel of Petitioners contented that:

1. The Petitioner argued on an outlined numerous component of Section 497 that the counsel
believed were infringing on his fundamental rights.
2. The counsel urged that, it was maintained that the law provided for a man’s penalty in the event
of adultery, but not for a woman’s punishment. Due to the lack of a legal provision to that effect,
a woman could not make a complaint against her husband for adultery under the Section.
3. Furthermore, the counsel of Petitioner claimed that under this rule, women were treated as
objects because the act was considered “illegal” depending on the husband’s agreement or lack
thereof.
4. The Petitioner claimed that because of their paternalistic and arbitrary nature the restrictions
infringed on fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution. Since
sexual intercourse was a mutual and willing act for both participants, it was argued that neither
should be held liable.
5. The Petitioner also claimed that Section 497 of the IPC violated Article 21- fundamental right to
privacy because the choice of an intimate partner lay clearly within the realm of sexuality
autonomy. It was argued that each individual (married or not; male or woman) had an
unrestricted right to engage in sexual intercourse outside of his or her marital connection.

Contention of Respondent:

The counsel of Respondent Countered the Argument of the Petitioner and contented that:

1. Allowing persons to have sexual encounters outside of marriage.

2. According to the counsel of Respondent, it would eventually destroy the institution of marriage,
and hence the clause criminalising adultery was necessary to safeguard the sanctity of marriage.
3. The counsel argued that an act that it offended society’s morality and its members should be
punished.
4. The Respondent claimed that the right to privacy and personal liberty guaranteed by Article 21
was not absolute and might be limited when a legitimate public interest was at risk. Section 497
was also considered to be lawful as a type of affirmative action in favour of women.

Judgement:
 The test held regarding test of manifest arbitrariness that such classification is unfair and
discriminatory and has no relevance in present times where women have their own identity and
stand adequate men in every aspect of life. This provision clearly violates Article 14.

The Hon’ble Apex Court held that,

 Section 497 protects women from being punished as abettors. It enunciated that this provision is
helpful for girls, which is saved by Article 15(3). Article 15(3) was inserted to guard the ladies from
patriarchy and pull them out of suppression. this text was aimed to bring them adequate to
men. But Section 497 isn’t protective discrimination but grounded in patriarchy and
paternalism.
 The provision violates Article 15(1) of the constitution because it’s discriminatory on the idea of
gender and perpetuating the stereotype of controlling a wife’s sexual autonomy.
The dignity of a personal and sexual privacy is protected by the constitution under Article 21. a
girl has an equal right to privacy as a person. The autonomy of a personal is that the ability to
create decisions on vital matters of life.
 The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the elemental
right to dignity and equality provided under Article 21.

Section 497 of Indian Penal Code was struck down.

Obiter dicta:

The offence relies on the notion of ladies being a property of husband and adultery is taken into
account to be a theft of his property because it says consent or connivance by the
husband wouldn’t make it an offence.

Ratio Decidendi:

It was observed that, Section 497 protects women from being punished as abettors. It enunciated
that this provision is useful for girls, which is saved by Article 15(3). Article 15(3) was inserted to
shield the ladies from patriarchy and pull them out of suppression. This text was aimed to bring
them capable men. But Section 497 isn’t protective discrimination but grounded in patriarchy and
paternalism.

The dignity of a personal and sexual privacy is protected by the constitution under Article 21. A girl
has an equal right to privacy as a person. The autonomy of a private is that the ability to form
decisions on vital matters of life.

When the legal code was drafted the societal thinking regarding women was backward and he or
she was treated as a chattel but after 158 years the status of girls is up to that of men. Her dignity is
of utmost importance which can’t be undermined by a provision which perpetuates such gender
stereotypes.

Conclusion:

The debate on the law of adultery in India may be unstoppable. The court while declaring this law
unconstitutional took a landmark step within the Indian legal history.
In the current scenario, equality and liberalism have confiscated the planet. There’s a desire for
legislative reforms to eliminate laws that are discriminatory against women.
Adultery not only discriminated between men and girls but also demeans the dignity of a lady. This
was inserted as an offence when society was stuffed with patriarchy and paternalism.