Adultry: Dismissed by SC

Rohit Tiwari, The North Cap University, Gurugram

Joseph Shine v. Union of India

When love flies out of a relationship, what remains is a mere cloak or sham to the rest of the world. There are certain depraved elements in the society which do not come into existence per se but come as a consequence of some unfulfilled desires. One of the quintessential examples could be Adultery. When a man has a consensual sexual intercourse with the wife of some another man, but without the consent of such another man, it is considered to be Adultery and is a penal offence in India.

Now, prima facie, there may not be seen any loopholes in this law but there are many latent defects which were contemplated and considered by the Hon’ble Supreme Court in the case of Joseph Shine v. Union of India[1]. The Supreme Court in this case struck down Section 497[2] of the Indian Penal Code (IPC) and Section 198(2)[3] of the Criminal Procedure Code (CrPc) which deal with Adultery and held the law as unconstitutional. Now, I will be analyzing the judgment in detail and highlight the grounds which led to the unconstitutionality of the law.


Critical Analysis


Issue 1: Whether the law on Adultery seeks to protect the sanctity of marriage?[4]

No, it in fact carries forward the old customary law which is a pre-constitutional law enacted in 1860. At that time, women were considered to be a captive of man and if someone tried to build an adulterous relationship with her; it was seen as an offence and was equated with theft as that man’s ‘property’ has been stolen. Now, in India, the ‘Protectionist Approach’ has pervaded the idea that women are weak and are in a constant need of protection to save their honour and dignity.[5]

On the other hand, the law on Adultery does not penalize a man who enters in a sexual intercourse with a woman not being a married woman or is a widow. Also, when such man have a sexual intercourse with a married woman after taking the consent of the husband of such married woman, then it is not considered to be Adultery and thereby completely proves the idea behind this law to be futile, under the pretense of which the law was framed.[6]


Issue 2: Whether this law is violative of any constitutional principles?

Yes, Section 497 of IPC and Section 198(2) of CrPc violates the fundamental rights and the same has been discussed below-

· Article 14[7] (Right to Equality): Section 497 of IPC violates Article 14 of the Indian Constitution as unlike men, women are not subjected to prosecution if they are found in an adulterous relationship. Also, there are graded levels of equality and various laws have been screened through them. In Shayara Bano v. Union of India[8], the Test of Manifest Arbitrariness was emerged and it stated that if a law is unfair, discriminatory and without any adequate determining principle, it is said to be manifestly arbitrary. In the present case, Section 497 of IPC prevents a man from getting prosecuted if he had taken consent from the husband of the woman indulged in Adultery and thus lacks reasonableness making it manifestly arbitrary and thereby violating Article 14.[9]

Also, whether it is the husband of a woman (Adulteress) or the wife of a man (Adulterer), both are equal sufferers and are considered to be ‘Aggrieved Persons’. But Section 198(2) of CrPc only considers the husband of the Adulteress to be aggrieved and only he has the right to file a complaint which again bring this law under the purview of manifest arbitrariness and thus violative of Article 14.[10]

· Article 15 (Prohibition of Discrimination): Under Article 15(1)[11], it has been mentioned that there shall not be any discrimination on the grounds only of sex. As aforesaid, both, the husband of the Adulteress and the wife of the Adulterer are said to be aggrieved but Section 198(2) of CrPc considers only the husband as aggrieved and only affords him the right to file a complaint and thus it is discrimination on the ground of sex between husband and wife, which is being detrimental to wife.[12]

· Article 21[13] (Right to Life and Personal Liberty): Dignity, Autonomy, Freedom and Liberty are all facets of Article 21. It has been observed that a woman can have a sexual relationship outside the marriage only at the connivance of her husband but the husband can have a sexual intercourse with an unmarried woman or a divorcee and neither he needs the consent of her wife nor he will be punished for any offence. This shows that a woman has a limited autonomy after marriage and is subjugated and subservient to her husband.[14]

Privacy is also a pivotal part of Article 21. Since under Section 497 of IPC, it has been stated that the sexual relationship must be a consensual one, not amounting to rape but is still in derogation of the Right to Privacy of the two adults who are in a sexual relationship as it is a consensual one.[15]


Issue 3: Whether Adultery should be considered as a criminal offence or a ground for divorce?

In my view, Adultery shall only be considered as a ground for divorce. When the IPC was first drafted in 1837, it did not include Adultery as an offence. Lord Macaulay considered Adultery to be a private wrong but the Law Commission was not convinced by the opinion and considered it to be a criminal offence. A sexual relationship of any of the spouses outside the marriage can explicitly become a ground for divorce. Also, when a decree for Judicial Separation has been obtained by any of the spouses and for the time being, if the wife enters in a sexual relationship with a man outside the marriage, such a man would be prosecuted for the offence of Adultery. Although, the law on Adultery has now been struck down and is no more an offence in India.[16]

[1] AIR 2018 SC 4898

[2] 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 a case, the wife shall not be punishable as an abettor.

[3] Section 198- Prosecution for offences against marriage — (2) 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.

[4] See Devika, Joseph Shine, SCC Online, available at: https://www.scconline.com/blog/post/tag/joseph-shine/#:~:text=It%20is%20a%20reflection%20of,2018%20SCC%20OnLine%20SC%201676.&text=Section%20497%20treats%20men%20and,prosecute%20their%20husbands%20for%20adultery (last visited on July 10, 2020)

[5] Id.

[6] Id.

[7] 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.

[8] AIR 2017 SC 4609

[9] Supra note 4

[10] Id.

[11] Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth-

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[12] Supra note 4

[13] 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.

[14] Supra note 4

[15] Id.

[16] Id.

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