JOSEPH SHINE V. UNION OF INDIA
(2019) 3 SCC 39
Ms Madhvi Wadhawan
Bench- i) Dipak Misra, ii) A M Khanwilkar, iii) Rohinton Fali Nariman, iv) Dr. DY Chandrachud v) Indu Malhotra
Facts-The present case involves a petition under Article 32 of the Constitution of India, challenging the constitutional validity of Section 497 of the Indian Penal Code (IPC), 1860, and Section 198(2) of the Criminal Procedure Code (CrPC), 1973. The issue of this case hinges on establishing or invalidating Section 497 –adultery– and its accompanying procedural arm which is Section 198(2) of the CrPC.
Previous Cases Discussed
There are four main cases which were revisited while deciding on the constitutional validity of adultery. The case of Yusuf Abdul Aziz v. State of Bombay, decided by a 5-judge bench of the Supreme Court on March 10, 1954, was also regarding the constitutional validity of Section 497 of the IPC, wherein, the appellant, Yusuf, who was being prosecuted on the grounds of adultery. The appellant challenged the said procedure and put forth that it was in violation of Article 14 and Article 15 of the Indian Constitution. The equality of treatment principle in Article 14 and the conundrum of not discriminating “only on the basis of sex” in Article 15 was invoked.
To appreciate this, Section 497 has been reproduced here:
“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 abettor.”
Normally, a woman should also be held liable, but by the nature of this definition only a male would be culpable of adultery, and the adulteress wife would not be held liable even as an abettor. Nevertheless, this Section was upheld by the Court by qualifying it with clause 3 of Article 15 of the Constitution, which enables the idea that “sex is a sound classification” for legislation to make ‘special provisions’ for women. This case, in the ultimate analysis, is not overruled, for it simply upholds the first limb of the controversial aspect of Section 497, which exonerates women based on Article 15 clause 3.
The next case is Sowmithri Vishnu v. Union of India, decided in 1985, where again Section 497 was challenged on the grounds that while the husband may prosecute the adulterer, the wife does not have the same right to prosecute the woman with whom her husband commits adultery, and this section does not recognize a husband’s adultery with an unmarried woman. So, in a way, it gives men a “free licence under the law to have extramarital relationships”. The position was that the offence of adultery is committed only by the man, and so, the wife gets protection from prosecution by her husband. The law held, “the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.” While propagating the idea of virtuous women, it was held that not bringing unmarried women into the definition or that “an under-inclusive definition was not necessarily discriminatory”. Further, until the legislature decided to include this facet, the law should be interpreted based solely on what is given. The contention that Section 497 does not contain any provision for giving a hearing to the wife was also shot down by the Court. It was unequivocally stated, “There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected…The right of hearing is a concomitant of the principles of natural justice…the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional..”
In Sowmithri Vishnu, the court firmly stated, “Stability of marriages is not an ideal to be scorned”, and, hence, preserved Section 497. This statement that the institution of marriage must be safeguarded from outsiders who incite social immorality and cause familial strife by breaking this union, is the backbone of the contention presented by ASG Pinky Anand on behalf of the Union of India.
In the V Revathi v. Union of India case, decided in 1988, the question was once again about the denial of the right of prosecuting the erring husband by the wife. The Court sketched the idea of formal equality, according to which, both husband and wife are prevented in the end from prosecuting each other, and “there is reverse discrimination in ‘favour’ of the woman rather than ‘against’ her… In the ultimate analysis law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”
The W. Kalyani case, decided in 2011, was filed against the paramour of the husband, but the lady was acquitted as the definition iterated that the appellant, being a woman, is not covered under the definition of adultery as capable of committing it.
One of the issues in this case was whether adultery should be treated as a criminal offence. For this, Justice Rohinton Nariman referred to Lord Macaulay’s opinion on the drafting a Penal Code where he refused to categorize adultery as a criminal offence. Lord Macaulay had put forth that criminalizing adultery would not prevent wronged husbands from taking the law into their hands. Moreover, cases from the lower classes, where husbands want to get their wives back simply because the wives in these lower classes are an able slogging hand in the house along with the benefit of not paying them. For the lower classes, the husbands who seek restoration of their spouses are demanding nothing but a restoration of the services of a servant, akin to an action brought under the charge of Per quod servitium amisit, which means the “claim for damages by a plaintiff from a defendant who has deprived him of the services of his servant by a wrongful act”.
However, it was Colonel Sleeman’s opinion which swayed the Law Commissioners, as they considered the criminalization of adultery as something which could mitigate the more disastrous release of vengeful passion through the alternative where “the injured party will do it [giving punishment to the adulteress wife] himself; great crimes, assassinations, poisonings, will be the consequence.” The assurance of punishment to the adulterer through the criminalization of this offence might prevent forced suicides of wives and passion crimes.
As far as India’s Law Commission Report recommendations are concerned, in June of 1971, the 42nd Law Commission Report suggested reducing the five year prison term to two years, which was not accepted. Most notable is the progressive minority view of Mrs. Anna Chandi, who wanted the deletion of Section 497 and had said, “it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with our present-day notions of woman’s status in marriage.” In August 1997, in the 156th Report, the suggestion was to include adulteress wives in the ambit of Section 497, to bring equality of sexes, but this was refused, too.
The second limb of Section 497 criminalizes sex outside the wedlock only if it is without the consent or connivance of the husband. Now this casts an inerasable shadow as to the intent of this provision, for it definitely does not protect the sexual/physical sanctity of marriage. The second part of this provision reduces women to mere chattel or a property of their husbands with no sexual agency or autonomy of their own. The test of manifest arbitrariness vets legislation on the anvil of “being disproportionate, excessive or otherwise being manifestly unreasonable.”
An “adequately determining principle” is sought to be established. This adequately determining principle is the use of constitutional values. An important dichotomy between social morality and constitutional morality is drawn. The Navtej Singh Johar case was used to establish that social morality may never evolve, and it may not give equal space to same-sex relationships because of the conservative views of the majority of society. However, the same restriction of social propriety cannot be imposed on constitutional morality. The constitutional value of equality, the ‘Right to Life’, enshrined in the Constitution will be the lodestar for the judiciary, which shall help the same decide on the eternal principles laid down in the Constitution and not on the whims and fancies of the society. In the Joseph Shine case, it is very clearly held, “The principle [reasoning for any judicial decision] must not be determined by majoritarian notions of morality which are at odds with constitutional morality…Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination. In…enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded—liberty, dignity and equality—cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness.”
Not only a lack of adherence to Constitutional ethos, but also a lack of rationality in criminalization of adultery is pointed out. Adultery may, in some cases, be the cause of marital break-down, but it can also be the result of a prior cessation of cordial marital relationship, or an already broken-down marriage may also result into adultery. But the law shall not differentiate between cases where there is a pre-existing severance of relationship so as to make adultery the result of a prior breakdown in the marital space and cases where adultery is the cause of marital discord.
Justice Indu Malhotra expounded on the antiquity of the Doctrine of Coverture. In England, adultery was not an offense, and Church presided over the decisions in marital issues. Females converted from being single (feme sole) to being married (feme covert), and, so, their existence as a separate legal entity would subside in their husbands. The personhood of the wife merged with that of her husband, a biblical notion of man and his wife being one in flesh and blood, legally translated into the wife not being able to “own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.” Husbands lorded over their wives, and the idea of a man’s connivance or consent for the negation of adultery harps back to these obsolete notions of women being the property of men.
Dignity of the woman and the right to privacy as inhering in Article 21 was emphasized especially in the context of the KS Puttaswamyjudgement. Sexual autonomy and the right to privacy were again shown as intertwined. ‘Sexual Agency’ is becoming the watchword when it comes to physical intimacy—you can consent to or decline a sexual activity, you can choose your gender, you can choose birth control, and sexual agency also includes “your right to change your mind in the middle of any sexual encounter or act”—this free will of association, of choosing to be sexually intimate with somebody or not, the whole spectrum of nuances and situations wherein you have the absolute right to control your own body is your ‘sexual autonomy’. While sexual autonomy may simply be the right to do with your body whatever you may please, this sexual autonomy becomes ‘sexual agency’ only when you are allowed to practice and effectively exercise this control over your body, when this right over your body is not controlled by society or even your husband. Justice DY Chandrachud has rightly said, “sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right…Section 497 lacks an adequately determining principle to criminalize consensual sexual activity...”
Concurrent to the idea of human dignity is the idea of Transformative Constitutionalism that “promotes and engenders societal change”. In the Common Cause v. Union of India, [(2018)5 SCC 1] case, Justice Sikri, reproducing Prof. Upendra Baxi’s lecture, posits dignity as a ‘metaethical’ concept which includes respect and also giving individual freedom to make informed choices. Dignity is about an overall societal empowerment that enables expression of free choice based on a societal system enabling flow of information and resources and also adapting changes for the enabling of personal choices. In this context, we have the trinity of dignity, substantive equality, and Transformative Constitutionalism, which gives legal fillip to society to change as per times and maintain dignity and equality.
The Supreme Court talked of ‘transnational jurisprudence’ as it relied on the decriminalization of adultery in many other countries. The example of Uganda was taken, wherein, Section 154 of their Penal Code weighed a heavier punishment against women who committed adultery. Men who committed adultery with married women had a lesser sentence as compared to women, while men got off Scot-free if that adultery had been committed with an unmarried woman. In its 2007 decision, Uganda scrapped adultery as a crime. Similarly, by 2015 in both South Africa and South Korea, adultery was decriminalized. The South Korean Constitutional Court noted that family values and social consensus on criminalizing adultery had changed, the society now driven by greater liberty was putting much stock in the value of sexual self-determination. Though the ideal of preserving marriages is still relevant, in the face of the present times, criminalizing consensual sexual relationships is an anachronism, a relic of antediluvian ideas of sexual fidelity in the marriage, these expectations of chastity being especially skewed to rein in a woman’s sexuality and ensure a pure bloodline. Adultery in England was briefly criminalized only during Puritanical Cromwell’s reign, but it was again decriminalized with the Restoration of Charles II in the 1660s. Heart Balm actions, for alienation of spousal affection, or criminal conversation charge against the seducer of the wife was disabled of its criminal aspect in England in 1857, and this could attract monetary damages but not penal ‘action for enticement’of the wife.
Martin Siegel’s article, “For Better or For Worse: Adultery, Crime and the Constitution”, talks elaborately about adultery being a marital choice, albeit an ‘unpopular’ marital choice which is entitled to privacy, the article further says that in the changing times when concept of ‘open marriage’ is nascent, the American population practicing such open relationship was estimated to be about 900,000 married couples. For an evolving society where sex is not seen as the “cement of marriage”, to impose sexual monogamy, and in so doing, the State intruding into the sexual privacy is unconstitutional. Even Justice Indu Malhotra while justifying decriminalization of adultery, advocated for the minimalistapproach of the State, where if imprisonment is the punishment, then the State would need to justify how the act affects society as a whole, and “Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.”
This judgement has come in a time when society balances on the precipice of change, the change in societal values that has pervaded the modern world must now necessarily be accommodated by the law. Indeed, if now Indian Courts had refused to decriminalize adultery, it would have been a retrograde step and a disservice to society.
Substantive Equality which is “directed at eliminating individual, institutional, and systemic discrimination, against disadvantaged groups” was disregarded in Sowmithri Vishnu and V Revathi, where formal equality of Section 497 of the IPC in disabling both spouses from prosecuting each other was expounded, but this view of formal equality has now been overruled in the present case. In effect, both Section 497 of the IPC and Section 198(2) of the CrPC are struck down.
 Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
 Section 497, Indian Penal Code, 1860, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46284§ionno=497&orderno=560.
 Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321, at Para 5.
 Sowmithri Vishnu v. Union of India, 1985 SCC (CRI) 325.
 Id Para 6.
 Id Para 9.
 Joseph Shine v. Union of India, (2019) 3 SCC 39, at Para 19.
 Note 4 (Sowmithri Vishnu), at Para 12.
 Joseph Shine v. Union of India, (2019) 3 SCC 39, at Para 266, p.184.
 V Revathi v. Union of India, (1988) 2 SCC 72.
 Id (V Revathi), at Para5.
 W. Kalyani v. State Through Inspector of Police, (2012) 1 SCC 358.
 Joseph Shine v. Union of India, (2019) 3 SCC 39, Para 82.
 Per quod servitium amisit, LEGALCRYSTAL.com, https://www.legalcrystal.com/dictionary/definition/102572/per-quod-servitium-amisit#:~:text=Per%20quod%20servitium%20amisit%2C%20words,servant%20by%20a%20wrongful%20act.
 Joseph Shine v. Union of India, Para83.
 Id Para 242.
 Joseph Shine v. Union of India,Para122.
 Id Para 243.
 Id Para 164.
 Joseph Shine v. Union of India,Para 166 & Para 168.
 Id Para 65.
 Id Para 224.
 Id Para 44.
 Pamela Madsen, On Being Female and Sexual Agency, PSYCHOLOGY TODAY.com, https://www.psychologytoday.com/us/blog/shameless-woman/201406/being-female-and-sexual-agency.
 Joseph Shine v. Union of India,Para 218 & Para 220.1.
 Id Para 213.
 Id Para 47.
 Id Para 144.
 Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48, at Para 13.
 Working Paper No.5—1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse, Chapter 2—The Law in Other European Legal Systems, LAWREFORM.ie, <https://www.lawreform.ie/_fileupload/consultation%20papers/wpHarbouringOfaSpouse.htm#:~:text=EUROPEAN%20LEGAL%20SYSTEMS-,(a)%20England,committed%20adultery%20with%20his%20wife.>
 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, 30 J. FAM. L. 45 (1991), at Pg 56.
 Id (Martin Siegel), Pg 57.
 Joseph Shine v. Union of India, Para 281.4.
 Id Para 171.