Holding

Section 497 of the Indian Penal Code and Section 198 of the Code of Criminal Procedure are unconstitutional as they violate Articles 14, 15, and 21 of the Constitution of India.

Summary

The petitioner challenged the constitutional validity of Section 497 of the Indian Penal Code (IPC), which criminalized adultery, and Section 198 of the Code of Criminal Procedure (CrPC), which restricted the right to prosecute for adultery to the husband. A five-judge Constitution Bench of the Supreme Court held that these provisions are unconstitutional as they violate Articles 14, 15, and 21 of the Constitution. The Court found that Section 497 treats women as the property of their husbands, is based on gender stereotypes, and invades the privacy and dignity of women. The provision was deemed manifestly arbitrary and discriminatory, and the Court overruled earlier decisions in Sowmithri Vishnu and V. Revathi. The writ petition was allowed, and adultery is no longer a criminal offence in India.

Issues considered

Whether Section 497 IPC violates Article 14 (equality before law), Article 15 (non-discrimination on grounds of sex), and Article 21 (right to life and personal liberty) of the Constitution?
Whether Section 198 CrPC, which restricts the right to prosecute for adultery to the husband, is also unconstitutional?
Whether the offence of adultery should be decriminalized?
Whether Article 15(3) saves Section 497 as a special provision for women?

Legislation cited

Code of Criminal Procedure, 1973s. 198
Constitution of Indias. 14, s. 15, s. 15(3), s. 19, s. 21, s. 366(10), s. 372(1)
Indian Penal Code, 1860s. 304B, s. 306, s. 376, s. 494, s. 497, s. 498, s. 498A

Subjects

adulteryconstitutional validitygender discriminationright to equalityright to privacydignitymanifest arbitrarinesssubstantive equalitydecriminalizationArticle 14Article 15Article 21Indian Penal CodeCode of Criminal Procedure

Judgment

[2018] 11 S.C.R. 765 765

JOSEPH SHINE A
v.
UNION OF INDIA
(Writ Petition (Criminal) No. 194 of 2017)
SEPTEMBER 27, 2018 B
[DIPAK MISRA, CJI, R.F. NARIMAN,
A.M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]

C
Penal Code, 1860: s.497 – s. 198 of Cr.P.C – Offence of
Adultery – Whether unconstitutional, being violative of Articles 14,
15 and 21 – Held: (Per Court): s. 497 IPC and s. 198 Cr.P.C. being
violative of Articles 14, 15 and 21 of the Constitution, are
unconstitutional – (Per Dipak Misra, CJI): s. 497 treats women,
subordinate to men – The rationale of the provision suffers from D
absence of logicality of approach and therefore suffers from vice
of Art. 14 being manifestly arbitrary – Section 497 also creates
invidious distinctions based on gender stereotypes which creates a
dent in the individual dignity of women and hence offends Art. 21 –
Offence of adultery u/s. 497 IPC does not fit into the concept of
E
crime – If it is treated as a crime, there would be immense intrusion
into the extreme privacy of the matrimonial sphere – Section 198
Cr.P.C. deals with procedure for filing complaint in relation to
offence u/s. 497 IPC, and hence it is also unconstitutional – (Per
R.F. Nariman, J.): What is punished as ‘adultery’ is not ‘adultery’
per se, but the proprietary interest of a married man in his wife – F
The archaic law u/s. 497 has long outlived its purpose and does not
square with today’s constitutional morality – It has become utterly
irrational, manifestly arbitrary and discriminatory and hence
violative of Art. 14 and 15(1) – Dignity of individual is a facet of
Art. 21 – A statutory provision which degrades the status of women,
G
falls foul of modern constitutional doctrine and must be struck down
being violative of Art. 21 – Section 198 Cr.P.C. also being
discriminatory provision, is held constitutionally infirm – (Per
Chandrachud, J:): Right to sexual autonomy and privacy has been
granted the stature of a constitutional right – Section 497, in its
H
765
766 SUPREME COURT REPORTS [2018] 11 S.C.R.

A effort to protect the sanctity of marriage, has adopted a notion of
marriage which does not regard the man and the woman as equal
partners – Section 497 thus subordinates the woman to a position
of inferiority – Constitutional morality requires the court to enforce
constitutional guarantees of equality before law, non-discrimination
on account of sex and dignity, all of which are affected by operation
B
of s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based on
gender stereotypes about the role of women and violates the non-
discrimination principle embodied in Art. 15 – It is also a denial of
the constitutional guarantees of dignity, liberty, privacy and sexual
autonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC is
C unconstitutional – (Per Indu Malhotra, J.): Section 497 IPC fails
to consider both men and women as equally autonomous individuals
in society – The anomalies and inconsistencies in s. 497 IPC would
render the provision liable to be struck down on the ground of being
arbitrary and discriminatory – Any legislation which treats similarly
situated persons unequally or discriminates between persons on
D
the basis of sex alone is liable to be struck down as being violative
of Articles 14 and 15 – Right to privacy u/Art. 21 would include the
right of two adults to enter into a sexual relationship outside
marriage – An invasion of privacy u/Art. 21, by the State must meet
a three-fold requirement i.e. (i) legality, (ii) need and (iii)
E proportionality – Section 497 IPC as it stands today fails to meet
the three fold requirement and therefore violative of Art. 21 – Section
198(2) of Cr.P.C. which contains the procedure for prosecution
under Chapter XX of IPC shall be unconstitutional only to the extent
that it is applicable to the offence of adultery u/s. 497 IPC –
Constitution of India – Arts. 14, 15 and 21.
F
Constitution of India:
Art. 15(3) – Protective discrimination – Applicability of – To
s.497 IPC – Held ( Per: R.F. Nariman, J.): Art. 15(3) is applicable
only to the law made by the State after coming into force of the
G Constitution and not to “existing law” – s. 497 is, in constitutional
language, an “existing law” which continues, by virtue of Art.
372(1), to apply, and could not be said to be law made by the
“State” – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protect
a statutory provision that entrenches patriarchal notions in garb of
protecting women – ‘Protection’ afforded to women u/s. 497
H
JOSEPH SHINE v. UNION OF INDIA 767

highlights the lack of sexual agency that the Section imputes to a A
woman – (Per: Indu Malhotra, J.): – The purpose of Art. 15(3) is
to further socio-economic equality of women – Section 497 cannot
be considered to be beneficial legislation covered by Art. 15(3) –
Penal Code, 1860 – s. 497.
Art. 21 – Right to privacy and personal liberty – Held: (Per B
Indu Malhotra, J.): An invasion of privacy u/Art. 21, by the State
must be justified on the basis of a law that is reasonable and valid –
Such invasion must meet three-fold requirement i.e. (i) legality, (ii)
need and (iii) proportionality – Section 497 of IPC fails to meet the
three-fold requirement – Therefore, right to privacy u/Art.21 would
include the right of two adults to enter into a sexual relationship C
outside marriage – Penal Code, 1860 – s. 497.
Art. 21 – Right to live with dignity – Scope of – Held: (Per:
Indu Malhotra, J.): – Right to live with dignity includes the right
not to be subjected to public censure and punishment by the State
except where absolutely necessary – Penal Code, 1860 – s. 497. D

Criminal Law:
Criminal sanction – When justified – Held:(Per: Indu
Malhotra, J.) – Criminal sanction may be justified where there is a
public element in the wrong – State must follow the minimalist E
approach in the criminalization of offences, keeping in view the
respect for the autonomy of the individual to make his/her personal
choices – Adultery is only a moral wrong qua the spouse and the
family – In order to determine what conduct requires State
interference through criminal sanction, the State must consider
whether civil remedy will serve the purpose – Where civil remedy F
for a wrongful act is sufficient, it may not warrant criminal sanction
by the State – Penal Code, 1860 – s. 497 – Remedy.
Presumption:
Presumption of constitutionality – Held: (Per Indu
G
Malhotra, J.) – There would be no presumption of constitutionality
in a pre-constitutional law – Constitutionalism.
Legislation:
Purpose of legislation – Held (Per Dipak Misra, CJI) – A
legislation should serve and promote good life – It should be fit H
768 SUPREME COURT REPORTS [2018] 11 S.C.R.

A and equitable so that it can have a right to command obedience.
Law:
Constitutionality of procedural law – When substantive
provision is held unconstitutional – Held (Per Dipak Misra, CJI)
When the substantive provision goes, the procedural provision has
B to to pave the same path.
Doctrine/Principle:
Principle of Conventure – Explained.
Maxim:
C
‘Cessante ratione legis, cessat ipsa lex’ – Applicability of.
Words & Phrases:
‘Adultery’ – Meaning of.
‘Crime’ – Meaning of.
D
Allowing the writ petition, the Court
HELD: Per: Dipak Misra, CJI (For himself and
A.M. Khanwilkar, J.)
1.1 The progression in law and the perceptual shift compels
E the present to have a penetrating look to the past. Though there
is necessity of certainty of law, yet with the societal changes and
more so, when the rights are expanded by the Court in respect
of certain aspects having regard to the reflective perception of
the organic and living Constitution, it is not apposite to have an
F inflexible stand on the foundation that the concept of certainty of
law should be allowed to prevail and govern. [Para 2][804-C-D]
1.2 A constitutional court cannot remain entrenched in a
precedent, for the controversy relates to the lives of human beings
who transcendentally grow. It can be announced with certitude
that transformative constitutionalism asserts itself every moment
G
and asserts itself to have its space. It is abhorrent to any kind of
regressive approach. The whole thing can be viewed from another
perspective. What might be acceptable at one point of time may
melt into total insignificance at another point of time. However,
the change perceived should not be in a sphere of fancy or
H individual fascination, but should be founded on the solid
JOSEPH SHINE v. UNION OF INDIA 769

bedrock of change that the society has perceived, the A
spheres in which the legislature has responded and the
rights that have been accentuated by the constitutional courts.
[Para 3][804-G-H; 805-A-B]
1.3 Despite conferring many a right on women within the
parameters of progressive jurisprudence and expansive B
constitutional vision, the Court cannot conceive of women still
being treated as a property of men, and secondly, where the
delicate relationship between a husband and wife does not remain
so, it is seemingly implausible to allow a criminal offence to enter
and make a third party culpable. [Para 3][805-B-C]
C
On the subjection of women by John Stuart Mill, 1869
Chapter 1 - referred to.
2.1 The husband of the woman has been treated to be a
person aggrieved for the offences punishable under Sections 497
and 498 of the IPC. The rest of the proviso carves out an exception D
as to who is entitled to file a complaint when the husband is absent.
The offence is non-cognizable. [Para 11][811-D-E]
2.2 On a reading of s. 497 IPC it is demonstrable that
women are treated as subordinate to men inasmuch as it lays
down that when there is connivance or consent of the man, there E
is no offence. This treats the woman as a chattel. It treats her as
the property of man and totally subservient to the will of the
master. It is a reflection of the social dominance that was prevalent
when the penal provision was drafted. [Para 22][818-F-G]
2.3 Section 497 IPC does not bring within its purview an F
extra marital relationship with an unmarried woman or a widow.
The dictionary meaning of “adultery” is that a married person
commits adultery if he has sex with a woman with whom he has
not entered into wedlock. ‘Adultery’ is the voluntary sexual
intercourse of a married person with a person other than the
offender’s husband or wife. However, the provision has made it a G
restricted one as a consequence of which a man, in certain
situations, becomes criminally liable for having committed
adultery while, in other situations, he cannot be branded as a
person who has committed adultery so as to invite the culpability
of Section 497 IPC. [Para 23][818-G-H; 819-A-B]
H
770 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 2.4 Section 198 CrPC deals with a “person aggrieved”. Sub-
section (2) of Section 198 treats the husband of the woman as
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 the time when such offence
was committed with the leave of the court. It does not consider
B
the wife of the adulterer as an aggrieved person. The offence
and the deeming definition of an aggrieved person, is absolutely
and manifestly arbitrary as it does not even appear to be rational
and it can be stated with emphasis that it confers a licence on the
husband to deal with the wife as he likes which is extremely
C excessive and disproportionate. It does not treat a woman as an
abettor but protects a woman and simultaneously, it does not
enable the wife to file any criminal prosecution against the
husband. Indubitably, she can take civil action but the husband
is also entitled to take civil action. However, that does not save
the provision as being manifestly arbitrary. Thus, on the one
D
hand, it protects a woman and on the other, it does not protect
the other woman. The rationale 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 manifestly arbitrary.
[Para 23][819-B-F]
E Shayara Bano v. Union of India and others (2017) 9
SCC 1: [ 2017] 7 SCR 797 – followed.
State of Mysore v. S.R. Jayaram (1968) 1 SCR 349;
Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC
1: [1976] SCR 347; E.P. Royappa v. State of Tamil
F Nadu (1974) 4 SCC 3: [1974] 2 SCR 348; Maneka
Gandhi v. Union of India (1978) 1 SCC 248: [1978] 2
SCR 621; A.L. Kalra v. Project and Equipment
Corporation of India Ltd. (1984) 3 SCC 316 : [1984]
3 SCR 646; Ajay Hasia v. Khalid Mujib Sehravardi
(1981) 1 SCC 722 :[1981] 2 SCR 79; K.R. Lakshmanan
G v. State of T. N. (1996) 2 SCC 7 226 : [1996] 1 SCR
395; Mithu v. State of Punjab (1983) 2 SCC 277:[1983]
2 SCR 690; Sunil Batra v. Delhi Administration (1978)
4 SCC 494 : [1979] 1 SCR 392;Charu Khurana and
others v. Union of India and others (2015) 1 SCC 192:
[2014] 12 SCR 259 – referred to.
H Black’s Law Dictionary – referred to.
JOSEPH SHINE v. UNION OF INDIA 771

3. There cannot be a patriarchal monarchy over the daughter A
or, for that matter, husband’s monarchy over the wife. That apart,
there cannot be a community exposition of masculine dominance.
The Court, with the passage of time, has recognized the
conceptual equality of woman and the essential dignity which a
woman is entitled to have. There can be no curtailment of the
B
same. But, Section 497 IPC effectively does the same by creating
invidious distinctions based on gender stereotypes which
creates a dent in the individual dignity of women. Besides,
the emphasis on the element of connivance or consent of the
husband tantamounts to subordination of women.
Therefore, the same offends Article 21 of the Constitution. C
[Paras 36, 41][826-D-E; 831-B-C]
Arun Kumar Agrawal and another v. National Insurance
Company Limited and others (2010) 9 SCC 218: [2010]
9 SCR 303; State of Madhya Pradesh v. Madanlal
(2015) 7 SCC 681: [2015] 7 SCR 998; Pawan Kumar D
v. State of Himachal Pradesh (2017) 7 SCC 780 : [2017]
3 SCR 458; Voluntary Health Association of Punjab v.
Union of India (2013) 4 SCC 1: [2013] 5 SCR 111;
Shakti Vahini v. Union of India and others (2018) 7
SCC 192; K.S. Puttaswamy and another v. Union of
India and others (2017) 10 SCC 1; National Legal E
Services Authority v. Union of India and Others (2014)
5 SCC 438; Common Cause (A Registered Society) v.
Union of India and another (2018) 5 SCC 1:[2008] 8
SCR 1; Shamima Farooqui v. Shahid Khan (2015) 5
SCC 705 – referred to. F
R v. R (1991) 4 ALL ER 481 – referred to.
Lord Denning The Due Process of Law (London,
Butterworths, 1980) – referred to.
4.1"a good legislation should be fit and equitable so that it G
can have a right to command obedience”. These are two
compartments, namely, ‘equity’ and ‘utility’. Thus, laws and
legislations are necessary to serve and promote a good life.
[Para 42][831-H; 832-A]

H
772 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 4.2 Treating adultery an offence, would tantamount to the
State entering into a real private realm. Under the existing
provision, the husband is treated as an aggrieved person and the
wife is ignored as a victim. Presently, the provision is reflective
of a tripartite labyrinth. A situation may be conceived of where
equality of status and the right to file a case may be conferred on
B
the wife. In either situation, the whole scenario is extremely
private. It stands in contradistinction to the demand for dowry,
domestic violence, sending someone to jail for non-grant of
maintenance or filing a complaint for second marriage. Adultery
stands on a different footing from the aforesaid offences.
C [Para 49][835-C-D]
4.3 The Parliament has the law making power. The Court
makes it very clear that it is not making law or legislating but
only stating that a particular act, i.e., adultery does not fit into the
concept of a crime. If it is treated as a crime, there would be
D immense intrusion into the extreme privacy of the matrimonial
sphere. It is better to be left as a ground for divorce. For any
other purpose as the Parliament has perceived or may, at any
time, perceive, to treat it as a criminal offence will offend the two
facets of Article 21 of the Constitution, namely, dignity of husband
and wife, as the case may be, and the privacy attached to a
E relationship between the two. [Para 49][835-E-F]
4.4 In case of adultery, the law expects the parties to remain
loyal and maintain fidelity throughout and also makes the adulterer
the culprit. This expectation by law is a command which gets
into the core of privacy. That apart, it is a discriminatory command
F and also a socio-moral one. Two individuals may part on the said
ground but to attach criminality to the same is inapposite.
[Para 53][837-C-D]
4.5 When the parties to a marriage lose their moral
commitment of the relationship, it creates a dent in the marriage
G and it will depend upon the parties how they deal with the situation.
Some may exonerate and live together and some may seek
divorce. It is absolutely a matter of privacy at its pinnacle. The
theories of punishment, whether deterrent or reformative, would
not save the situation. A punishment is unlikely to establish
H commitment, if punishment is meted out to either of them or a
JOSEPH SHINE v. UNION OF INDIA 773

third party. Adultery, in certain situations, may not be the cause A
of an unhappy marriage. It can be the result. It is difficult to
conceive of such situations in absolute terms. The issue that
requires to be determined is whether the said ‘act’ should be
made a criminal offence especially when on certain occasions, it
can be the cause and in certain situations, it can be the result. If
B
the act is treated as an offence and punishment is provided, it
would tantamount to punishing people who are unhappy in marital
relationships and any law that would make adultery a crime would
have to punish indiscriminately both the persons whose marriages
have been broken down as well as those persons whose marriages
are not. A law punishing adultery as a crime cannot make C
distinction between these two types of marriages. It is bound to
become a law which would fall within the sphere of manifest
arbitrariness. [Para 54][837-E-H; 838-A-B]
4.6 Thinking of adultery from the point of view of criminality
would be a retrograde step. This Court has travelled on the path D
of transformative constitutionalism and, therefore, it is absolutely
inappropriate to sit in a time machine to a different era where the
machine moves on the path of regression. Hence, to treat adultery
as a crime would be unwarranted in law. [Para 55][838-C-D]
Central Inland Water Transport Corporation Limited E
and another v. Brojo Nath Ganguly (1986) 3 SCC 156:
[1986] 2 SCR 278; Common Cause (A Registered
Society) v. Union of India and another (2018) 5 SCC
1:[2008] 8 SCR 1 – relied on.
Pinakin Mahipatray Rawal v. State of Gujarat (2013) F
10 SCC 48 : [2013] 10 SCR 306; Ghusabhai
Raisangbhai Chorasiya v. State of Gujarat (2015) 11
SCC 753:[2015] 2 SCR 594 – referred to.
“Principles of Criminal Liability” Halsbury’s Laws of
England, 4th Edn., Vol. 11 p.11,; Kenny’s Outlines of G
Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner –
referred to.
5. As the court has held that Section 497 IPC is
unconstitutional and adultery should not be treated as an offence,
it is appropriate to declare Section 198 CrPC which deals with
H
774 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the procedure for filing a complaint in relation to the offence of
adultery as unconstitutional. When the substantive provision
goes, the procedural provision has to pave the same path.
[Para 56][838-F]
Sowmithri Vishnu v. Union of India and another (1985)
B Supp SCC 137:[1985] Suppl. SCR 741; V. Revathi v.
Union of India and others (1988) 2 SCC 72 : [1988] 3
SCR 73 – overruled.
Yusuf Abdul Aziz v. State of Bombay 1954 SCR 930;
W. Kalyani v. State through Inspector of Police and
C another (2012) 1 SCC 358; Central Board of Dawoodi
Bohra Community and another v. State of Maharashtra
and another (2005) 2 SCC 673: [2004] 6 Suppl. SCR
1054; W. Kalyani v. State Thro’ Inspector of Police and
another (2012) 1 SCC 358 – referred to.
D Per: R. F. Nariman, J. (Concurring)
1. The crime of adultery punishes only a third-party male
offender as against the crime of bigamy, which punishes the
bigamist, be it a man or a woman. What is therefore punished as
‘adultery’ is not ‘adultery’ per se but the proprietary interest of a
E married man in his wife. [Para 1][839-F-G]
2. Article 15(3) of the Constitution is not applicable in the
present case as Art. 15(3) states that, “nothing in this Article
shall prevent the State from making a special provision for
women”, would refer to the “State” as either Parliament or the
F State Legislatures or the Executive Government of the Centre
or the States, set up under the Constitution after it has come into
force. Section 497 is, in constitutional parlance, an “existing law”
which continues, by virtue of Article 372(1), to apply, and could
not therefore, be said to be a law made by the “State”, meaning
any of the entities referred to above. Article 15(3) refers to the
G State making laws which therefore, obviously cannot include
existing law. Article 15(3) is in this respect similar to Article 16(4).
Article 19(2)-(6) clearly refers to “existing law” as being distinct
from “the State making any law”, indicating that the State making
any law would be laws made after the Constitution comes into
force as opposed to “existing law”, which are pre-constitutional
H
JOSEPH SHINE v. UNION OF INDIA 775

laws enacted before the Constitution came into force, as is clear A
from the definition of “existing law” contained in Article 366(10).
The vital difference in language between Articles 15(3) and 16(4)
on the one hand, and Article 19(2)-(6) on the other, must thus be
given effect. [Paras 12-15][851-B-C; 852-D; 853-D]
Yusuf Abdul Aziz v. State 1954 SCR 930; Dattatraya B
Motiram More v. State of Bombay AIR 1953 Bom 311
– referred to
3.1 In order to constitute the offence of adultery, the
following must be established: Sexual intercourse between a
married woman and a man who is not her husband; the man who C
has sexual intercourse with the married woman must know or
has reason to believe that she is the wife of another man; such
sexual intercourse must take place with her consent, i.e., it must
not amount to rape; sexual intercourse with the married woman
must take place without the consent or connivance of her husband.
[Para 21][857-D-F] D

3.2 What is apparent on a cursory reading of these
ingredients is that a married man, who has sexual intercourse
with an unmarried woman or a widow, does not commit the offence
of adultery. Also, if a man has sexual intercourse with a married
woman with the consent or connivance of her husband, he does E
not commit the offence of adultery. The consent of the woman
committing adultery is material only for showing that the offence
is not another offence, namely, rape. [Para 22][857-G]
3.3 This archaic law has long outlived its purpose and does
not square with today’s constitutional morality, in that the very F
object with which it was made has since become manifestly
arbitrary, having lost its rationale long ago and having become in
today’s day and age, utterly irrational. On this basis alone, the
law deserves to be struck down, for with the passage of time,
Article 14 springs into action and interdicts such law as being G
manifestly arbitrary. A legislation can be struck down on the
ground of manifest arbitrariness. [Para 23][858-F-G]
3.4 It is clear, therefore, that the ostensible object of Section
497, as pleaded by the State, being to protect and preserve the
sanctity of marriage, is not in fact the object of Section 497 at all.
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776 SUPREME COURT REPORTS [2018] 11 S.C.R.

A The sanctity of marriage can be utterly destroyed by a married
man having sexual intercourse with an unmarried woman or a
widow. Also, if the husband consents or connives at such sexual
intercourse, the offence is not committed, thereby showing that
it is not sanctity of marriage which is sought to be protected and
preserved, but a proprietary right of a husband. Secondly, no
B deterrent effect has been shown to exist, or ever to have existed,
which may be a legitimate consideration for a State enacting
criminal law. Also, manifest arbitrariness is writ large even in
cases where the offender happens to be a married woman whose
marriage has broken down, as a result of which she no longer
cohabits with her husband, and may in fact, have obtained a decree
C
for judicial separation against her husband, preparatory to a
divorce being granted. If, during this period, she has sex with
another man, the other man is immediately guilty of the offence.
[Para 24][859-B-E]
3.5 Section 497 of IPC is also discriminatory and therefore,
D violative of Article 14 and Article 15(1). In treating a woman as
chattel for the purposes of this provision, it is clear that
such provision discriminates against women on grounds
of sex only, and must be struck down on this ground as well.
[Para 25][859-E-F]
E Shayara Bano v. Union of India and Ors. (2017) 9 SCC
1 : [2017] 7 SCR 797;Justice K.S. Puttaswamy (Retd.)
and Anr. v. Union of India and Ors. (2017) 10 SCC 1 :
[2017] 10 SCR 569 – relied on.
4. The dignity of the individual, which is spoken of in the
F Preamble to the Constitution of India, is a facet of Article 21 of
the Constitution. A statutory provision belonging to the hoary
past which demeans or degrades the status of a woman obviously
falls foul of modern constitutional doctrine and must be struck
down on this ground also. [Para 26][863-D-E]
5. Section 198, CrPC is also a blatantly discriminatory
G provision, in that it is the husband alone or somebody on his
behalf who can file a complaint against another man for this
offence. Consequently, Section 198 has also to be held
constitutionally infirm. [Para 25][859-F-G]
6. Ancient notions of the man being the seducer and the
H woman being the victim permeate the judgment, which is no
JOSEPH SHINE v. UNION OF INDIA 777

longer the case today. The moving times have not left the law A
behind and so far as engaging the attention of law makers when
reform of penal law is undertaken, that even when the CrPC was
fully replaced in 1973, Section 198 continued to be on the statute
book. Even as of today, Section 497 IPC continues to be on the
statute book. When these sections are wholly outdated and have
B
outlived their purpose, not only does the maxim of Roman law,
“cessante ratione legis, cessat ipsa lex,” apply to interdict such
law, but when such law falls foul of constitutional guarantees, it is
this Court’s solemn duty not to wait for legislation but to strike
down such law. [Para 28][864-B-D]
7. Therefore, Section 497 of IPC and Section 198 of the C
Code of Criminal Procedure, 1973 are violative of Articles 14,
15(1), and 21 of the Constitution of India and are, therefore, struck
down as being invalid. [Para 28][864-F-G]
Sowmithri Vishnu v. Union of India and Anr. (1985) Supp
SCC 137:[1985] Suppl. SCR 741; V. Revathi v. Union D
of India and Ors. (1988) 2 SCC 72 : [1988] 3 SCR 73
– overruled.
Charcles A. Tinker v. Frederick L. Colwell 193 US 473
(1904); Pritchard v. Pritchard and Sims [1966] 3 All
E.R. 601 – referred to. E

The Laws of Manu 150 (Translation by G. Buhler,
Clarendon Press, UK, 1886); Dharmasutras – The Law
Codes of Apastamba, Gautama, Baudhayana, And Vasistha
70-71 (Translation by Patrick Olivelle, Oxford
University Press 1999); The Koran (Al–Qur’an): Arabic- F
English Bilingual Edition with an Introduction by Mohamed
A. ‘Arafa 363 (Maulana Muhammad Ali Translation,
Teller Books, 2018; Linda Fitts Mischler, Personal Morals
Masquerading as Professional Ethics: Regulations Banning
Sex between Domestic Relations Attorneys and Their G
Clients, 23 Harvard Women’s Law Journal 1, 21-22
(2000); A Penal Code prepared by the Indian Law
Commissioners, and published by command of the Governor
General of India in Council 91-93 (G.H. Huttmann, The
Bengal Military Orphan Press, 1837 – referred to.
H
778 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Per Dr. D Y Chandrachud, J. (Concurring)
1. In adjudicating on the rights of women, the Court must
not lose sight of the institutions and values which have forced
women to a shackled existence so far. To fully recognise the role
of law and society in shaping the lives and identities of women, is
B also to ensure that patriarchal social values and legal norms are
not permitted to further obstruct the exercise of constitutional
rights by the women. [Para 3][866-F]
2. The Court has evolved a jurisprudence of rights- granting
primacy to the right to autonomy, dignity and individual choice.
C The right to sexual autonomy and privacy has been granted the
stature of a constitutional right. [Para 4][866-G; 867-A]
3. The history of Section 497 reveals that the law on adultery
was for the benefit of the husband, for him to secure ownership
over the sexuality of his wife. It was aimed at preventing the
D woman from exercising her sexual agency. Thus, Section 497 was
never conceived to benefit women. In fact, the provision is
steeped in stereotypes about women and their subordinate role
in marriage. The patriarchal underpinnings of the law on adultery
become evident when the provision is considered as a whole.
[Para 7][869-C-D]
E
4. Section 497, in its effort to protect the sanctity of
marriage, has adopted a notion of marriage which does not regard
the man and the woman as equal partners. It proceeds on the
subjection of the woman to the will of her husband. In doing so,
Section 497 subordinates the woman to a position of inferiority
F thereby offending her dignity, which is the core of Article 21.
[Para 11][872-G-H; 873-A-B]
5. Section 497 of the Penal Code, 1860 makes adultery a
punishable offence against “whoever has sexual intercourse with
a person who is and whom he knows or has reason to believe to
G be the wife of another man, without the consent or connivance of
that man.” It goes on to state that, “in such case the wife shall
not be punishable as an abettor.” The offence applies only to the
man committing adultery. A woman committing adultery is not
considered to be an “abettor” to the offence. The power to
H
JOSEPH SHINE v. UNION OF INDIA 779

prosecute for adultery rests only with the husband of the woman. A
[Para 14][875-B-C]
6. The history of adultery throws light upon disparate
attitudes toward male and female infidelity, and reveals the double
standard in law and morality that has been applied to men and
women. [Para 14][875-D] B
7. In its 156th Report, the Law Commission made a
proposal which it believed reflected the “‘transformation’ which
the society has undergone,” by suggesting removing the
exemption from liability for women under Section 497. In 2003,
the Justice Malimath Committee recommended that Section 497 C
be made gender-neutral, by substituting the words of the provision
with “whosoever has sexual intercourse with the spouse of any
other person is guilty of adultery.” The Committee supported
earlier proposals to not repeal the offence, but to equate liability
for the sexes. Neither the recommendations of the Law
Commission nor those of the Malimath Committee have been D
accepted by the Legislature. Though women are exempted from
prosecution under Section 497, the underlying notion upon which
the provision rests, which conceives of women as property, is
extremely harmful. The power to prosecute lies only with the
husband (and not to the wife in cases where her husband commits E
adultery), and whether the crime itself has been committed
depends on whether the husband provides “consent for the
allegedly adulterous act.” [Para 23][882-B-C; F]
8. Women, therefore, occupy a liminal space in the law: they
cannot be prosecuted for committing adultery, nor can they be F
aggrieved by it, by virtue of their status as their husband’s
property. Section 497 is also premised upon sexual stereotypes
that view women as being passive and devoid of sexual agency.
Effectively, Indian jurisprudence has interpreted the constitutional
guarantee of sex equality as a justification for differential
treatment: to treat men and women differently is, ultimately, to G
act in women’s interests. The status of Section 497 as a “special
provision” operating for the benefit of women, therefore,
constitutes a paradigmatic example of benevolent patriarchy.
[Para 24][882-F-G; 883-A-B]
H
780 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 9. A woman’s ‘purity’ and a man’s marital ‘entitlement’ to
her exclusive sexual possession may be reflective of the
antiquated social and sexual mores of the nineteenth century,
but they cannot be recognized as being so today. It is not the
“common morality” of the State at any time in history, but rather
constitutional morality, which must guide the law. In any
B
democracy, constitutional morality requires the assurance of
certain rights that are indispensable for the free, equal, and
dignified existence of all members of society. A commitment to
constitutional morality requires the Court to enforce the
constitutional guarantees of equality before law, non-
C discrimination on account of sex, and dignity, all of which are
affected by the operation of Section 497. [Para 25][883-C-D]
10. Numerous countries around the world have taken
measures to decriminalize the offence of adultery due to the
gender discriminatory nature of adultery laws as well as on the
D ground that they violate the right to privacy. However,
progressive action has primarily been taken on the ground that
provisions penalising adultery are discriminatory against women
either patently on the face of the law or in their implementation.
Reform towards achieving a more egalitarian society in practice
has also been driven by active measures taken by the United
E Nations and other international human rights organizations,
where it has been emphasized that even seemingly
gender-neutral provisions criminalising adultery cast an
unequal burden on women. The abolishing of adultery has been
brought about in equal measure by legislatures and courts.
F [Para 26][883-E-F; 884-A-C]
11. The act which constitutes the offence under Section 497
of the Penal Code is a man engaging in sexual intercourse with a
woman who is the “wife of another man”. For the offence to arise,
the man who engages in sexual intercourse must either know or
G have reason to believe that the woman is married. Though a man
has engaged in sexual intercourse with a woman who is married,
the offence of adultery does not come into being where he did so
with the consent or connivance of her husband. These ingredients
of Section 497 lay bare several features which bear on the
challenge to its validity under Article 14. The fact that the sexual
H relationship between a man and a woman is consensual is of no
JOSEPH SHINE v. UNION OF INDIA 781

significance to the offence, if the ingredients of the offence are A
established. What the legislature has constituted as a criminal
offence is the act of sexual intercourse between a man and a woman
who is “the wife of another man”. [Para 30][893-D-F]
12. No offence exists where a man who has a subsisting
marital relationship engages in sexual intercourse with a single B
woman. Though adultery is considered to be an offence relating
to marriage, the legislature did not penalise sexual intercourse
between a married man and a single woman. Even though the
man in such a case has a spouse, this is considered to be of no
legal relevance to defining the scope of the offence. That is
because the provision proceeds on the notion that the woman is C
but a chattel; the property of her husband. The fact that he is
engaging in a sexual relationship outside marriage is of no
consequence to the law. The woman with whom he is in marriage
has no voice of her own, no agency to complain. If the woman
who is involved in the sexual act is not married, the law treats it D
with unconcern. The premise of the law is that if a woman is not
the property of a married man, her act would not be deemed to
be ‘adulterous’, by definition. [Para 30][893-G; 894-A-B]
13. Section 497 is destructive of and deprives a woman of
her agency, autonomy and dignity. If the ostensible object of the E
law is to protect the ‘institution of marriage’, it provides no
justification for not recognising the agency of a woman whose
spouse is engaged in a sexual relationship outside of marriage.
She can neither complain nor is the fact that she is in a marital
relationship with a man of any significance to the ingredients of
the offence. The law also deprives the married woman who has F
engaged in a sexual act with another man, of her agency. She is
treated as the property of her husband. That is why no offence of
adultery would be made out if her husband were to consent to
her sexual relationship outside marriage. Worse still, if the spouse
of the woman were to connive with the person with whom she G
has engaged in sexual intercourse, the law would blink. Section
497 is thus founded on the notion that a woman by entering upon
marriage loses, so to speak, her voice, autonomy and agency.
Manifest arbitrariness is writ large on the provision.
[Para 32][894-D-G]
H
782 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 14. The hypothesis which forms the basis of the law on
adultery is the subsistence of a patriarchal order. Section 497 is
based on a notion of morality which fails to accord with the values
on which the Constitution is founded. The freedoms which the
Constitution guarantees inhere in men and women alike. In
enacting Section 497, the legislature made an ostensible effort
B
to protect the institution of marriage. Marriage in a constitutional
regime is founded on the equality of and between spouses. Each
of them is entitled to the same liberty which Part III guarantees.
Each of them is entitled to take decisions in accordance with his
and her conscience and each must have the ability to pursue the
C human desire for fulfilment. 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 recognising,
accepting and 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
D
the Constitution is founded – liberty, dignity and equality – cannot
allow such a view of marriage. Section 497 suffers from manifest
arbitrariness. [Para 35][897-A-D]
15. While engrafting the provision into Chapter XX of the
Penal Code – “of offences relating to marriage” – the legislature
E has based the offence on an implicit assumption about marriage.
The notion which the law propounds and to which it imposes the
sanctions of penal law is that the marital tie subordinates the role
and position of the woman. In that view of marriage, the woman
is bereft of the ability to decide, to make choices and give free
F expression to her personality. Human sexuality is an essential
aspect of identity. Choices in matters of sexuality are reflective
of the human desire for expression. Autonomy in matters of
sexuality is thus intrinsic to a dignified human existence. Human
dignity both recognises and protects the autonomy of the
individual in making sexual choices. The sexual choices of an
G individual cannot obviously be imposed on others in society and
are premised on a voluntary acceptance by consenting parties.
[Para 36][897-E-F; 898-A]
16. Section 497 denudes the woman of the ability to make
these fundamental choices, in postulating that it is only the man
H in a marital relationship who can consent to his spouse having
JOSEPH SHINE v. UNION OF INDIA 783

sexual intercourse with another. Section 497 disregards the sexual A
autonomy which every woman possesses as a necessary condition
of her existence. Far from being an equal partner in an equal
relationship, she is subjugated entirely to the will of her spouse.
The provision is proffered by the legislature as an effort to protect
the institution of marriage. But it proceeds on a notion of marriage
B
which is one sided and which denies agency to the woman in a
marital tie. The ability to make choices within marriage and on
every aspect concerning it is a facet of human liberty and dignity
which the Constitution protects. In depriving the woman of that
ability and recognising it in the man alone, Section 497 fails to
meet the essence of substantive equality in its application to C
marriage. Equality of rights and entitlements between parties to
a marriage is crucial to preserve the values of the Constitution.
Section 497 offends that substantive sense of equality and is
violative of Article 14. [Para 36][898-A-D]
17. The procedural law which has been enacted in Section D
198 of the Code of Criminal Procedure 1973 re-enforces the
stereotypes implicit in Section 497. Cognizance of an offence
under Chapter XX of the Penal Code can be taken by a Court
only upon a complaint of a person aggrieved. In the case of an
offence punishable under Section 497, only the husband of the
woman is deemed to be aggrieved by the offence. In any event, E
once the provisions of Section 497 IPC are held to offend the
fundamental rights, the procedure engrafted in Section 198 Cr.P.C.
will cease to have any practical relevance. [Para 37][898-E]
18. Section 497 IPC amounts to a denial of substantive
equality. The decisions in *Sowmithri and **Revathi Cases F
espoused a formal notion of equality, which is contrary to the
constitutional vision of a just social order. Justness postulates
equality. In consonance with constitutional morality, substantive
equality is “directed at eliminating individual, institutional and
systemic discrimination against disadvantaged groups which G
effectively undermines their full and equal social, economic,
political and cultural participation in society.” To move away from
a formalistic notion of equality which disregards social realities,
the Court must take into account the impact of the rule or
provision in the lives of citizens. [Para 38][898-F-H]
H
784 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 19. The primary enquiry to be undertaken by the Court
towards the realisation of substantive equality is to determine
whether the provision contributes to the subordination of a
disadvantaged group of individuals. The disadvantage must be
addressed not by treating a woman as ‘weak’ but by construing
her entitlement to an equal citizenship. The former legitimizes
B
patronising attitudes towards women. The latter links true equality
to the realisation of dignity. The focus of such an approach is not
simply on equal treatment under the law, but rather on the real
impact of the legislation. Thus, Section 497 has to be
examined in the light of existing social structures which enforce
C the position of a woman as an unequal participant in a marriage.
[Para 38][899-A-C]
20. From a joint reading of Section 497 of the Indian Penal
Code and Section 198(2) of the Code of Criminal Procedure, the
following propositions emerge: Sexual relations by a married
D woman with another man outside her marriage without the consent
of her husband is criminalized; In an ‘adulterous relationship’,
the man is punished for adultery, while the woman is not (even as
an abettor); Sexual relations by a married man with an unmarried
woman are not criminalized; Section 497 accords primacy to the
consent of the husband to determine whether criminality is
E attached to the man who has consensual sexual relations with
the spouse of the former. Consent or willingness of the woman is
irrelevant to the offence; a man who has sexual relations with the
spouse of another man is relieved of the offence only if her spouse
has consented or, even connived; and Section 497, IPC, read
F with Section 198, Cr.PC, gives the man the sole right to lodge a
complaint and precludes a woman from initiating criminal
proceedings. [Para 40][900-B-F]
21. The operation of Section 497, by definition, is confined
to the sexual relations of a woman outside her marriage. A man
G who has sexual intercourse with a married woman without the
consent or connivance of her husband, is liable to be prosecuted
under the Section. However, a married man may engage in sexual
relations outside marriage with a single woman without any
repercussion in criminal law. Though granted immunity from
prosecution, a woman is forced to consider the prospect of the
H penal action that will attach upon the individual with whom she
JOSEPH SHINE v. UNION OF INDIA 785

engages in a sexual act. To ensure the fidelity of his spouse, the A
man is given the power to invoke the criminal sanction of the
State. In effect, her spouse is empowered to curtail her sexual
agency. The consent of the husband serves as the key to the
exercise of the sexual agency of his spouse. That the married
woman is in a consensual relationship, is of no consequence to
B
the possible prosecution. [Para 41][900-G-H; 901-A]
22. The effect of Section 497 is to allow the sexual agency
of a married woman to be wholly dependent on the consent or
connivance of her husband. Though Section 497 does not punish
a woman engaging in adultery as an abettor, a married man and a
married woman are placed on different pedestals in respect to C
their actions. The effect of Section 497 IPC, despite granting
immunity from prosecution to the married woman, is to attach a
notion of wrongdoing to the exercise of her sexual agency. Despite
exempting her from prosecution, the exercise of her sexual agency
is contingent on the consent or connivance of the husband. A D
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. Viewed from this angle, Section
497 IPC discriminates between a married man and a married
woman to her detriment on the ground of sex. This kind of
discrimination is prohibited by the non-discrimination guarantee E
in Article 15 of the Constitution. Section 497 IPC also
places a woman within marriage and the man with whom she
shares a sexual relationship outside marriage on a different footing.
[Para 41][902-D-E]
23. Underlying Section 497 IPC is a gender stereotype that F
the infidelity of men is normal, but that of a woman is
impermissible. In condemning the sexual agency of the woman,
only the husband, as the ‘aggrieved’ party is given the right to
initiate prosecution. The proceedings once initiated, would be
geared against the person who committed an act of ‘theft’ or
‘trespass’ upon his spouse. Sexual relations by a man with another G
man’s wife is therefore considered as theft of the husband’s
property. Ensuring a man’s control over the sexuality of his wife
was the true purpose of Section 497 IPC. [Para 44][902-D-E]
24. That a woman, by marriage, consents in advance to
sexual relations with her husband or to refrain from sexual H
786 SUPREME COURT REPORTS [2018] 11 S.C.R.

A relations outside marriage without the permission of her husband
is offensive to the values of liberty and dignity. Such a notion has
no place in the constitutional order. Sexual autonomy constitutes
an inviolable core of the dignity of every individual. At the heart
of the constitutional rights guaranteed to every individual is a
primacy of choice and the freedom to determine one’s actions.
B
Curtailing the sexual autonomy of a woman or presuming the
lack of consent once she enters a marriage is antithetical to
constitutional values. [Para 44][902-F-G; 903-A]
25. A provision of law must not be viewed as operating in
isolation from the social, political, historical and cultural contexts
C in which it operates. In its operation, law “permeates and is
inseparable from everyday living and knowing, and it plays an
important role in shaping (legal) consciousness.” A contextual
reading of the law shows that it influences social practices, and
makes “asymmetries of power seem, if not invisible, natural and
D benign”. Section 497 IPC has a significant social impact on the
sexual agency of women. It builds on existing gender stereotypes
and bias and further perpetuates them. Cultural stereotypes are
more forgiving of a man engaging in sexual relations than a
woman. Women then are expected to be chaste before and faithful
during marriage. In restricting the sexual agency of women,
E Section 497 gives legal recognition to socially discriminatory and
gender-based norms. Sexual relations for a woman were legally
and socially permissible when it was within her marriage. Women
who committed adultery or non-marital sex were labeled immoral,
shameful, and were criminally condemned. [Para 45][903-B-D]
F 26. Article 15(3) encapsulates the notion of ‘protective
discrimination’. The constitutional guarantee in Article 15(3)
cannot be employed in a manner that entrenches paternalistic
notions of ‘protection’. This latter view of protection only serves
to place women in a cage. Article 15(3) does not exist in isolation.
G Articles 14 to 18, being constituents of a single code on equality,
supplement each other and incorporate a non-discrimination
principle. Neither Article 15(1), nor Article 15(3) allow
discrimination against women. Discrimination which is grounded
in paternalistic and patriarchal notions cannot claim the protection
of Article 15(3). In exempting women from criminal prosecution,
H Section 497 implies that a woman has no sexual agency and that
JOSEPH SHINE v. UNION OF INDIA 787

she was ‘seduced’ into a sexual relationship. The ‘protection’ A
afforded to women under Section 497 highlights the lack of sexual
agency that the section imputes to a woman. Article 15(3) when
read with the other Articles in Part III, serves as a powerful
remedy to remedy the discrimination and prejudice faced by
women for centuries. Article 15(3) as an enabling provision is
intended to bring out substantive equality in the fullest sense. B
Dignity and autonomy are crucial to substantive equality. Hence,
Article 15(3) does not protect a statutory provision that
entrenches patriarchal notions in the garb of protecting women.
[Para 48][905-A-G; 906-A-C]
27. The right to privacy depends on the exercise of C
autonomy and agency by individuals. In situations where citizens
are disabled from exercising these essential attributes, courts
must step in to ensure that dignity is realised in the fullest sense.
Familial structures cannot be regarded as private spaces where
constitutional rights are violated. To grant immunity in situations
when rights of individuals are in siege, is to obstruct the unfolding D
vision of the Constitution. [Para 50][907-D-E]
28. Constitutional protections and freedoms permeate every
aspect of a citizen’s life - the delineation of private or public
spheres become irrelevant as far as the enforcement of
constitutional rights is concerned. Therefore, even the intimate E
personal sphere of marital relations is not exempt from
constitutional scrutiny. The enforcement of forced female fidelity
by curtailing sexual autonomy is an affront to th
fundamental right to dignity and equality. In remedying
injustices, the Court cannot shy away from delving into the
‘personal’, and as a consequence, the ‘public’. It F
becomes imperative for the Court to intervene when
structures of injustice and persecution deeply entrenched in
patriarchy are destructive of constitutional freedom. But,
in adjudicating on the rights of women, the Court is not
taking on a paternalistic role and “granting” rights. The Court is
merely interpreting the text of the Constitution to G
re-state what is already set in ink-women are equal
citizens of this nation, entitled to the protections of the
Constitution. Any legislation which results
in the denial of these Constitutional guarantees to
women, cannot pass the test of constitutionality.
[Paras 52 and 66][908-D-F; 918-B] H
788 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 29. Section 497 IPC is not simply about protecting the
sanctity of the marital relationship. It is all about protecting a
husband’s interest in his “exclusive access to his wife’s sexuality”.
[Para 52][909-A-B]
30. Marriage as a social institution has undergone changes.
B Propelled by access to education and by economic and social
progress, women have found greater freedom to assert their
choices and preferences. The law must also reflect their status
as equals in a marriage, entitled to the constitutional guarantees
of privacy and dignity. [Para 54][910-E-F]
31. Section 497 seeks the preservation of a construct of
C marriage in which female fidelity is enforced by the letter of the
law and by the coercive authority of the State. Such a conception
goes against the spirit of the rights-based jurisprudence of this
Court, which seeks to protect the dignity of an individual and
her “intimate personal choices”. It cannot be held that these
rights cease to exist once the woman enters into a marriage.
D [Para 55][911-D-E]
32. In so far as two individuals engage in acts based
on consent, the law cannot intervene. Any intrusion in this
private sphere would amount to deprivation of autonomy
and sexual agency, which every individual is imbued with.
E [Para 58][913-F-G]
33. In criminalizing adultery, the legislature has imposed
its imprimatur on the control by a man over the sexuality of his
spouse. In doing that, the statutory provision fails to meet the
touchstone of Article 21. Section 497 deprives a woman of her
autonomy, dignity and privacy. It compounds the encroachment
F on her right to life and personal liberty by adopting a notion of
marriage which subverts true equality. Equality is subverted by
lending the sanctions of the penal law to a gender biased approach
to the relationship of a man and a woman. The statute confounds
paternalism as an instrument for protecting marital stability. It
defines the sanctity of marriage in terms of a hierarchical ordering
G which is skewed against the woman. The law gives unequal voices
to partners in a relationship. [Para 59][914-C-D]
34. Individuals in a relationship, whether within or outside
marriage, have a legitimate expectation that each will provide to
the other the same element of companionship and respect for
H
JOSEPH SHINE v. UNION OF INDIA 789

choices. Respect for sexual autonomy, it must be emphasized is A
founded on the equality between spouses and partners and the
recognition by each of them of the dignity of the other. Control
over sexuality attaches to the human element in each individual.
Marriage – whether it be a sacrament or contract – does not
result in ceding of the autonomy of one spouse to another.
B
[Para 59][914-E-F]
35. There is a fundamental reason which militates against
criminalization of adultery. Its genesis lies in the fact that
criminalizing an act is not a valid constitutional response to a
sexual relationship outside the fold of marriage. Adultery in the
course of a subsisting marital relationship may, and very often C
does question the commitment of the spouse to the relationship.
In many cases, a sexual relationship of one of the spouses outside
of the marriage may lead to the end of the marital relationship.
But in other cases, such a relationship may not be the cause but
the consequence of a pre-existing disruption of the marital tie. D
All too often, spouses who have drifted apart irrevocably may be
compelled for reasons personal to them to continue with the
veneer of a marriage which has ended for all intents and purposes.
The interminably long delay of the law in the resolution of
matrimonial conflicts is an aspect which cannot be ignored. The
realities of human existence are too complex to place them in E
closed categories of right and wrong and to subject all that is
considered wrong with the sanctions of penal law. Just as all
conduct which is not criminal may not necessarily be ethically
just, all conduct which is inappropriate does not justify being
elevated to a criminal wrongdoing. [Para 60][914-G-H; 915-A-C] F
36. The legitimate aims of the State may, it must be
recognized, extend to imposing penal sanctions for certain acts
within the framework of marriage. In criminalizing certain types
of wrongdoing against women, the State intervenes to protect
the fundamental rights of every woman to live with dignity. G
Adultery as an offence does not fit that paradigm. In criminalizing
certain acts, Section 497 has proceeded on a hypothesis which is
deeply offensive to the dignity of women. It is grounded in
paternalism, solicitous of patriarchal values and subjugates the
woman to a position where the law disregards her sexuality. The
H
790 SUPREME COURT REPORTS [2018] 11 S.C.R.

A sexuality of a woman is part of her core. Neither the state nor the
institution of marriage can disparage it. [Para 61][915-E-F; G-H;
916-A-B]
37. To construe Section 497 in a vacuum (as did *Sowmithri
Vishnu case ) or in formalistic terms (as did *Revathi case) is a
B refusal to recognise and address the subjugation that women have
suffered as a consequence of the patriarchal order. Section 497
is a denial of substantive equality in that it re-inforces the notion
that women are unequal participants in a marriage; incapable of
freely consenting to a sexual act in a legal order which regards
them as the sexual property of their spouse. [Para 65][917-E-F]
C
38. Criminal law must be in consonance with constitutional
morality. The law on adultery enforces a construct of marriage
where one partner is to cede her sexual autonomy to the other.
Being antithetical to the constitutional guarantees of liberty,
dignity and equality, Section 497 does not pass constitutional
D muster. [Para 67][918-C-D]
39. Section 497 lacks an adequately determining principle
to criminalize consensual sexual activity and is manifestly
arbitrary. Section 497 is a denial of substantive equality as it
perpetuates the subordinate status ascribed to women in marriage
E and society. Section 497 violates Article 14 of the Constitution;
Section 497 is based on gender stereotypes about the role of
women and violates the non-discrimination principle embodied
in Article 15 of the Constitution; Section 497 is a denial of the
constitutional guarantees of dignity, liberty, privacy and sexual
F autonomy which are intrinsic to Article 21 of the Constitution.
Section 497 is unconstitutional. [Para 67][918-D-F]
Shayara Bano v Union of India (2017) 9 SCC 1 : [2017]
7 SCR 797 – followed.
E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 :
G [1974] 2 SCR 348; Navtej Singh Johar v Union of
India (2018) 1 SCC 791 ;Anuj Garg v Hotel Association
of India (2008) 3 SCC 1 : [2007] 12 SCR 991;
Government of A P v P B Vijayakumar (1995) 4 SCC
520 : [1995] 1 Suppl. SCR 462; Independent Thought
v Union of India (2017) 10 SCC 800; K S Puttaswamy
H
JOSEPH SHINE v. UNION OF INDIA 791

v Union of India (2017) 10 SCC 1 : [2017] 10 SCR A
569 – relied on.
*Sowmithri Vishnu v. Union of India 1985 Supp SCC
137:[1985] Suppl. SCR 741;**V Revathi v Union of
India (1988) 2 SCC 72 : [1988] 3 SCR 73 – overruled.
Yusuf Abdul Aziz v State of Bombay [1954] SCR 930; B
Union of India v Elphinstone Spinning and Weaving
Co. Ltd (2001) 4 SCC 139 : [2001] 1 SCR 221 –
referred to.
R v Mawgridge (1707) Kel. 119; Law Advocacy for
Women in Uganda v. Attorney General of Uganda, (2007) C
UGCC 1 (5 April, 2007); DE v RH, [2015] ZACC 18;
Thornburgh v. American College of Obstetricians and
Gynaecologists, 476 U.S. 747 (1986); DE v RH [2015]
ZACC 18; Cleveland Board of Education v. LaFleur, 414
U.S. 623 (1973); Carey, v. Population Serv. Int’l, 431 D
U.S. 678; Roberts v. United States Jaycees, 468 U.S. 609,
618 (1984); Thornburgh v. American College of
Obstetricians and Gynaecologists, 476 U.S. 747 (1986);
Eisenstadt v. Baird , 405 U.S. 438, 457 (1972) – referred
to.
E
Ratna Kapur and Brenda Cossman, Subversive Sites:
Feminist Engagements with Law in India, Sage
Publications (1996); Patricia Williams, The Alchemy of Race
and Rights, Cambridge: Harvard University Press (1991);
Gayatri Spivak, The Post Colonial Critic: Interviews,
Strategies, Dialogies, Routledge (1990); Nathaniel F
Hawthorne, The Scarlet Letter, Bantam Books (1850), at
page 59; David Turner, Adultery in The Oxford
Encyclopedia of Women in World History (2008); James
A. Brundage, Law, Sex, and Christian Society in
Medieval Europe, at page 10; Faramerz Dabhoiwala, The G
Origins of Sex: A History of the First Sexual Revolution
(2012), at page 5; Vern Bullough, Medieval Concepts of
Adultery, at page 7; The Oxford Encyclopaedia of Women
in World History, (Bonnie G Smith ed.), Oxford; Martin
Siegel, For Better or for Worse: Adultery, Crime & the
H
792 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Constitution, Vol. 30, Journal of Family Law (1991), at
page 46; James A. Brundage, Law, Sex, and Christian
Society in Medieval Europe, at page 27; Jeremy D.
Weinstein, Adultery, Law, and the State: A History, Vol.
38, Hastings Law Journal (1986), at page 202; R. Huebner,
A History of Germanic Private Law (F. Philbrick trans.
B
1918); James R. Mellow, Hawthorne’s Divided Genius, The
Wilson Quarterly (1982); Mary Beth Norton, Founding
Mothers and Fathers: Gendered Power and the Forming
of American Society (1996); Keith Thomas, The Puritans
and Adultery: The Act of 1650 Reconsidered, in Puritans
C and Revolutionaries: Essays in Seventeenth-Century
History Presented to Christopher Hill (Donald
Pennington, Keith Thomas, eds.); Charles E. Torcia,
Wharton’s Criminal Law, Section 218, (1994) at page 528;
J. E. Loftis, Congreve’s Way of the World and Popular
Criminal Literature, Studies in English Literature, 1500
D
– 1900 36(3) (1996), at page 293; Joanne Bailey, Unquiet
Lives: Marriage and Marriage Breakdown in England,
1660–1800 (2009), at page 143; Blackstone’s Commentaries
on the Laws of England, Book IV (1778); William
Blackstone, Commentaries on the Laws of England. Vol.
E I (1765), at pages 442- 445; Vera Bergelson, Rethinking
Rape-By-Fraud in Legal Perspectives on State Power:
Consent and Control (Chris Ashford, Alan Reed and
Nicola Wake, eds.) (2016), at page 161; Abhinav Sekhri,
The Good, The Bad, And The Adulterous: Criminal Law
And Adultery In India, Socio-Legal Review (2016), at
F
page 52; Macaulay’s Draft Penal Code (1837), Note Q;
Second Report on the Indian Penal Code (1847), at pages
134-35, cited from, Law Commission of India, Forty-second
Report: Indian Penal Code, at page 365; A Penal Code
prepared by The Indian Law Commissioners (1838), The
G Second Report on the Indian Penal Code, at page 74;
Law Commission of India, 42nd Report: Indian Penal
Code (1971), at page 326; Report of the Committee on
Reforms of Criminal Justice System (2003), at page 190;
Brenda Cossman and Ratna Kapur, Subversive Sites:
Feminist Engagements with Law in India (1996);
H
JOSEPH SHINE v. UNION OF INDIA 793

Katherine T. Bartlett, Feminist Legal Methods, Harvard A
Law Review (1990); U N Working Group on Women’s
Human Rights: Report (18 October, 201; Reuters:
‘Uganda scraps “sexist” adultery law’, (April 5, 2007);
Martin J. Siegel, For Better or For Worse: Adultery, Crime
& the Constitution, Journal of Family Law, Vol.30, (1991)
B
45; Deborah Rhode, Adultery: Infidelity and the Law,
(Harvard University Press, 2016); Iris Marion Young,
Justice and the Politics of Difference, Princeton
University Press, 1990; Kathy Lahey, Feminist Theories
of (In)equality, in Equality and Judicial Nuetrality
(S.Martin and K.Mahoney (eds.) (1987); Ratna Kapur On C
Woman, Equality and the Constitution: Through the
Looking Glass of Feminism in Gender and Politics in
India (Nivedita Menon ed.) (1993); Maureen Maloney, An
Analysis of Direct Taxes in India: A Feminist Perspective,
Journal of the Indian Law Institute (1988); Catherine A
D
Mackinnon, Sex equality under the Constitution of India:
Problems, prospects, and ‘personal laws’, Oxford
University Press and New York University School of Law
(2006); Phyllis Coleman, Who’s Been Sleeping in My Bed?
You and Me, and the State Makes Three, Vol. 24, Indian
Law Review (1991); Women’s Work, Men’s Property: The E
Origins of Gender and Class (S Coontz and P Henderson
eds.) (1986); Rosemary Coombe, Is There a Cultural Studies
of Law?, A Companion to Cultural Studies, Toby Miller
(ed.), Oxford, (2001); Austin Sarat, Jonathan Simon, Beyond
Legal Realism?: Cultural Analysis, Cultural Studies, and
F
the Situation of Legal Scholarship, Yale Journal of Law
& the Humanities, (2001); Charles Jean Marie Letorneau,
The Evolution of Marriage (2011); Nandita Haksar,
Dominance, Suppression and the Law in Women and
the Law: Contemporary Problems (Lotika Sarkar and B.
Sivaramayya eds.), Vikas Publishing House (1994); Nivedita G
Menon, Seeing like a Feminist, Zubaan Books (2012) at
page 35 – referred to.
Per Indu Malhotra, J. (Concurring)
1.1 Section 497 of Penal Code (IPC) is a pre-constitutional
law which was enacted in 1860. There would be no H
794 SUPREME COURT REPORTS [2018] 11 S.C.R.

A presumption of constitutionality in a pre-constitutional law (like
Section 497) framed by a foreign legislature. The provision would
have to be tested on the anvil of Part III of the Constitution.
[Para 10][942-C-D]
1.2 Section 497 of the IPC it is placed under Chapter XX of
B “Offences Relating to Marriage”. The provision of Section 497 is
replete with anomalies and incongruities, such as: Under Section
497, it is only the male-paramour who is punishable for the offence
of adultery. The woman who is pari delicto with the adulterous
male, is not punishable, even as an ‘abettor’. The adulterous
woman is excluded solely on the basis of gender, and cannot be
C prosecuted for adultery. The Section only gives the right to
prosecute, to the husband of the adulterous wife. On the other
hand, the wife of the adulterous man, has no similar right to
prosecute her husband or his paramour. Section 497 read with
Section 198(2) of Cr.P.C. only empowers the aggrieved husband,
of a married wife who has entered into the adulterous relationship
D to initiate proceedings for the offence of adultery. The act of a
married man engaging in sexual intercourse with an unmarried
or divorced woman, does not constitute ‘adultery’ under Section
497. If the adulterous relationship between a man and a married
woman, takes place with the consent and connivance of her
husband, it would not constitute the offence of adultery.
E
The anomalies and inconsistencies in Section 497 as
stated above, would render the provision liable to be struck
down on the ground of it being arbitrary and discriminatory.
[Para 11][942-D-G; 943-A-B]
Pritchard v. Pritchard and Sims [1966] 3 All E.R. 601;
F Oliverson v. West Valley City 875 F. Supp. 1465; Hobbs
v. Smith No. 15 CVS 5646 (2017) [Superior Court of
North Carolina); Lawrence v. Texas 539 US 558 (2003);
DE v. RH (594/2013) [2014] ZASCA 133 (25
September 2014); Green v. Fitzgerald 1914 AD 88 –
G referred to.
Outhwaite, R.B. (2007). The Rise and Fall of the English
Ecclesiastical Courts, 1500–1860; Cambridge, UK:
Cambridge University Press; Fernandez, Angela “Tapping
Reeve, Nathan Dane, and James Kent: Three Fading
H
JOSEPH SHINE v. UNION OF INDIA 795

Federalists on Marital Unity; Married Women and the A
Law: Coverture in England and the Common Law World,
edited by Tim Stretton and Krista J. Kesselring, McGill-
Queen’s University Press, 2013, pp. 192–216; Blackstone’s
Commentaries on the Laws of England, Books III & IV
(8th Edn.), 1778; Bracton: De Legibus Et Consuetudinibus
B
Angliæ (Bracton on the Laws and Customs of England
attributed to Henry of Bratton, c. 1210-1268) Vol III, pg.
115; “Out of his shadow: The long struggle of wives
under English Law” The High Sheriff of Oxfordshire’s
Annual Law Lecture given by Lord Wilson on 9 October
2012; Uma Chakravarti, Gendering Caste Through a C
Feminist Lens, STREE Publications (2003); ‘A Penal Code
prepared by The Indian Law Commissioners, (1838),
Notes of Lord Thomas Babington Macaulay, Note Q; A
Penal Code prepared by The Indian Law Commissioners,
(1838), The Second Report on the Indian Penal Code;
D
Report of the Committee on Reforms of Criminal Justice
System, Government of India, Ministry of Home Affairs,
chaired by Justice V.S. Malimath, (2003); Illinois Criminal
Code, 720 ILCS 5/11-35, Adultery; Martin Siegel, For Better
or for Worse: Adultery, Crime & the Constitution, 30
Journal Of Family Law 45, 51-52 (1991); H. Meyers, E
“Revision of Criminal Code of Japan” Washington Law
Review & State Bar Journal, Vol. 25, (1950) at pp. 104-
134; Anayasa Mahkemesi, 1996/15, 1996/34 (Sept. 23,
1996); Adultery Case, 27-1 (A) KCCR 20, February 26,
2015; – referred to.
F
2.1 The constitutional validity of section 497 has to be tested
on the anvil of Article 14 of the Constitution. Any legislation
which treats similarly situated persons unequally, or discriminates
between persons on the basis of sex alone, is liable to be struck
down as being violative of Articles 14 and 15 of the Constitution,
G
which form the pillars against the vice of arbitrariness and
discrimination. [Para 12.1][943-C-D]
2.2 Article 14 forbids class legislation; however, it does
not forbid reasonable classification. A reasonable classification is
H
796 SUPREME COURT REPORTS [2018] 11 S.C.R.

A permissible if two conditions are satisfied: i.e. The classification
is made on the basis of an ‘intelligible differentia’ which
distinguishes persons or things that are grouped together, and
separates them from the rest of the group; and the said intelligible
differentia must have a rational nexus with the object sought to
be achieved by the legal provision. [Para 12.2][943-D-F]
B
2.3 The discriminatory provisions in Section 497 have to
be considered with reference to the classification made. The
classification must have some rational basis or a nexus with the
object sought to be achieved. With respect to the offence of
adultery committed by two consenting adults, there ought not to
C be any discrimination on the basis of sex alone since it has
no rational nexus with the object sought to be achieved.
[Para 12.2][943-F-G; 944-A]
E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :
[2004 ] 5 Suppl. SCR 972 – relied on.
D
2.4 Section 497 of IPC makes two classifications: The first
classification is based on who has the right to prosecute: It is
only the husband of the married woman who indulges in adultery,
is considered to be an aggrieved person given the right to
prosecute for the offence of adultery. Conversely, a married
E woman who is the wife of the adulterous man, has no right to
prosecute either her husband, or his paramour.The second
classification is based on who can be prosecuted. It is only the
adulterous man who can be prosecuted for committing adultery,
and not the adulterous woman, even though the relationship is
consensual; the adulterous woman is not even considered to be
F an “abettor” to the offence. The aforesaid classifications were
based on the historical context in 1860 when the IPC was enacted.
At that point of time, women had no rights independent of their
husbands, and were treated as chattel or ‘property’ of their
husbands. Hence, the offence of adultery was treated as an injury
to the husband, since it was considered to be a ‘theft’ of his
G property, for which he could proceed to prosecute the offender.
The said classification is no longer relevant or valid, and cannot
withstand the test of Article 14, and hence is liable to be struck
down on this ground alone. [Para 12.2][944-A-F]
2.5 A law which deprives women of the right to prosecute,
H is not gender-neutral. Under Section 497, the wife of the
JOSEPH SHINE v. UNION OF INDIA 797

adulterous male, cannot prosecute her husband for marital A
infidelity. This provision is therefore ex facie discriminatory
against women, and violative of Article 14. Section 497 as it stands
today, cannot hide in the shadows against the discerning light of
Article 14 which irradiates anything which is unreasonable,
discriminatory, and arbitrary. [Para 12.3][944-G-H]
B
3.1 A law which could have been justified at the time of its
enactment with the passage of time may become out-dated and
discriminatory with the evolution of society and changed
circumstances. What may have once been a perfectly valid
legislation meant to protect women in the historical background
in which it was framed, with the passage of time of over a century C
and a half, may become obsolete and archaic. A provision
previously not held to be unconstitutional, can be rendered so by
later developments in society, including gender equality.
[Para 13][945-A-B]
Motor General Traders v. State of Andhra Pradesh, D
(1984) 1 SCC 222 : [1984] 1 SCR 594; Ratan Arya v.
State of Tamil Nadu, (1986) 3 SCC 385 : [1986] 2 SCR
596; John Vallamattom v. Union of India, (2003) 6 SCC
611 : [2003] 1 Suppl. SCR 638 – relied on.
‘A Penal Code prepared by the Indian Law E
Commissioners, (1838), Notes of Lord Thomas
Babington Macaulay, Note Q – referred to.
3.2 Section 497 of IPC was framed in the historical context
that the infidelity of the wife should not be punished because of
the plight of women in this country during the 1860s. Women F
were married while they were still children, and often neglected
while still young, sharing the attention of a husband with several
rivals. This situation is not true 155 years after the provision
was framed. With the passage of time, education, development
in civil-political rights and socio-economic conditions, the situation G
has undergone a sea change. The historical background in which
Section 497 was framed, is no longer relevant in contemporary
society. [Para 13][945-C-D]
3.3 It would be unrealistic to proceed on the basis that
even in a consensual sexual relationship, a married woman, who
H
798 SUPREME COURT REPORTS [2018] 11 S.C.R.

A knowingly and voluntarily enters into a sexual relationship with
another married man, is a ‘victim’, and the male offender is the
‘seducer’. Section 497 fails to consider both men and women as
equally autonomous individuals in society. [Para 13][945-E]
Anuj Garg v Hotel Association of India (2008) 3 SCC
B 1 : [ 2007] 12 SCR 991 – relied on.
3.4 The time when wives were invisible to the law, and
lived in the shadows of their husbands, has long since gone by. A
legislation that perpetuates such stereo-types in relationships,
and institutionalises discrimination is a clear violation of the
C fundamental rights guaranteed by Part III of the Constitution.
There is therefore, no justification for continuance of Section 497
of the IPC as framed in 1860, to remain on the statute book.
[Para 13][946-E-F]
4. Article 15(3) of the Constitution is an enabling provision
which permits the State to frame beneficial legislation in favour
D of women and children, to protect and uplift this class of citizens.
Section 497 is a penal provision for the offence of adultery, an act
which is committed consensually between two adults who have
strayed out of the marital bond. Such a provision cannot be
considered to be a beneficial legislation covered by Article 15(3)
E of the Constitution. The true purpose of affirmative action is to
uplift women and empower them in socio-economic spheres. A
legislation which takes away the rights of women to prosecute
cannot be termed as ‘beneficial legislation’. The purpose of Article
15(3) is to further socio-economic equality of women. It permits
special legislation for special classes. However, Article 15(3)
F cannot operate as a cover for exemption from an offence
having penal consequences. A Section which perpetuates
oppression of women is unsustainable in law, and
cannot take cover under the guise of protective discrimination.
[Para 14][946-G-H; 947-A, D-E]
Thota Sesharathamma and Anr. v. Thota Manikyamma
G
(Dead) by LRs. and Ors. (1991) 4 SCC 312 – relied on.
5.1 Right to privacy under Article 21 would include the right
of two adults to enter into a sexual relationship outside marriage.
The right to privacy and personal liberty is, however, not an
absolute one; it is subject to reasonable restrictions when
H legitimate public interest is involved. [Para 15][947-F]
JOSEPH SHINE v. UNION OF INDIA 799

5.2 An invasion of privacy u/Art. 21, by the State must be A
justified on the basis of a law that is reasonable and valid. Such an
invasion must meet a three-fold requirement: (i) legality, which
postulates the existence of law; (ii) need, defined in terms of a
legitimate State interest, and (iii) proportionality, which ensures
a rational nexus between the object and the means
B
adopted. Section 497 as it stands today, fails to meet the
three-fold requirement, and must therefore be struck down.
[Para 15][948-A-B]
K S Puttaswamy v Union of India (2017) 10 SCC 1 :
[2017] 10 SCR 569 – relied on.
6.1 Criminal sanction may be justified where there is a public C
element in the wrong, such as offences against State security,
and the like. These are public wrongs where the victim is not the
individual, but the community as a whole. Adultery undoubtedly
is a moral wrong qua the spouse and the family. The element of
public censure, visiting the delinquent with penal consequences, D
and overriding individual rights, would be justified only when the
society is directly impacted by such conduct. In fact, a much
stronger justification is required where an offence is punishable
with imprisonment. The State must follow the minimalist approach
in the criminalization of offences, keeping in view the respect for
the autonomy of the individual to make his/her personal choices. E
[Para 17][950-A-D]
6.2 The right to live with dignity includes the right not to
be subjected to public censure and punishment by the State
except where absolutely necessary. In order to determine what
conduct requires State interference through criminal sanction, F
the State must consider whether the civil remedy will serve
the purpose. Where a civil remedy for a wrongful act is
sufficient, it may not warrant criminal sanction by the State.
[Para 17][950-D-E]
‘Principles of Criminal Law’ by Andrew Ashworth and G
Jeremy Horder Oxford University Press, (7th Edn.)
May 2013; Mill, John S., Chapter I: Introductory, On
Liberty, Published London: Longman, Roberts, & Green
Co. 1869, 4th Edn.; A P Simester and Andreas von Hirsch,
Crimes, Harms, And Wrongs: On The Principles Of
H
800 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Criminalisation, Oxford: Hart Publishing (2011) –
referred to.
7. Therefore, Section 497 is struck down as
unconstitutional being violative of Articles 14, 15 and 21 of the
Constitution. Section 198(2) of the Cr.P.C. which contains the
B procedure for prosecution under Chapter XX of the IPC shall be
unconstitutional only to the extent that it is applicable to the
offence of Adultery under Section 497 IPC. [Para 18][950-E-F]
Shafin Jahan v. Asokan K.M. & Ors. 2018 SCC Online
SC 343; K.S. Puttaswamy v Union of India (2017) 10
C SCC 1; E.V. Chinnaiah v. State of A.P., (2005) 1 SCC
394 : [2004 ] 5 Suppl. SCR 972; Thota Sesharathamma
and Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors.
(1991) 4 SCC 312 – relied on.
Sowmithri Vishnu v. Union of India & Anr. (1985) Supp
D SCC 137 : [1985] Suppl. SCR 741; V. Revathi v Union
of India (1988) 2 SCC 72 : [1988] 3 SCR 73 ; W.
Kalyani v. State (2012) 1 SCC 358 – overruled.
Yusuf Abdul Aziz v State of Bombay [1954] SCR 930 –
referred to.
E Case Law Reference
In the Judgment of Dipak Misra, CJI:
[1954] SCR 930 referred to Para 4
[1985] Suppl. SCR 741 overruled Para 4
F [1988] 3 SCR 73 overruled Para 4
(2012) 1 SCC 358 referred to Para 4
[2004] 6 Suppl. SCR 1054 referred to Para 8
[1988] 3 SCR 73 overruled Para 16
G
(2012) 1 SCC 358 referred to Para 17
[2017] 7 SCR 797 followed Para 18
(1968) 1 SCR 349 referred to Para 19
[1976] SCR 347 referred to Para 19
H
JOSEPH SHINE v. UNION OF INDIA 801

[1974] 2 SCR 348 referred to Para 19 A
[1978] 2 SCR 621 referred to Para 19
[1984] 3 SCR 646 referred to Para 19
[1981] 2 SCR 79 referred to Para 19
[1996] 1 SCR 395 referred to Para 19 B
[1983] 2 SCR 690 referred to Para 19
[1979] 1 SCR 392 referred to Para 19
[2010] 9 SCR 303 referred to Para 25
C
[2015] 7 SCR 998 referred to Para 27
[2017] 3 SCR 458 referred to Para 28
(2015) 5 SCC 705 referred to Para 31
[2013] 5 SCR 111 referred to Para 32
D
[2014] 12 SCR 259 referred to Para 33
(2018) 7 SCC 192 referred to Para 34
(2017) 10 SCC 1 referred to Para 36
(2014) 5 SCC 438 referred to Para 38
E
[2008] 8 SCR 1 relied on Para 39
[1986] 2 SCR 278 relied on Para 47
[2013] 10 SCR 306 referred to Para 50
[2015] 2 SCR 594 referred to Para 51 F
In the Judgment of R.F. Nariman, J.:
1952 ILR Bom 449 referred to Para 12
1954 SCR 930 referred to Para 12
AIR 1953 Bom 311 referred to Para 13 G
[1985] Suppl. SCR 741 overruled Para 17
[1988] 3 SCR 73 overruled Para 18
[2017] 7 SCR 797 relied on Para 23
(2017) 10 SCC 1 relied on Para 26 H
802 SUPREME COURT REPORTS [2018] 11 S.C.R.

A In the Judgment of Dr. D.Y. Chandrachud, J.:
[1954] SCR 930 referred to Para 6
[2001] 1 SCR 221 referred to Para 7
[1985] Suppl. SCR 741 overruled Para 8
B [1988] 3 SCR 73 overruled Para 12
[1974] 2 SCR 348 relied on Para 33
[2017] 7 SCR 797 followed Para 33
(2018) 1 SCC 791 relied on Para 34
C
[2007] 12 SCR 991 relied on Para 45
[1995] 1 Suppl. SCR 462 relied on Para 47
(2017) 10 SCC 800 relied on Para 47
(2017) 10 SCC 1 relied on Para 50
D

In the Judgment of Indu Malhotra, J.:
[1954] SCR 930 referred to Para 8.1
(2017) 10 SCC 1 relied on Para 9.1
E
[2004 ] 5 Suppl. SCR 972 relied on Para 12.2
[1984] 1 SCR 594 relied on Para 13
[1986] 2 SCR 596 relied on Para 13

F [2003] 1 Suppl. SCR 638 relied on Para 13
[2007] 12 SCR 991 relied on Para 13
(1991) 4 SCC 312 relied on Para 14
[1985] Suppl. SCR 741 overruled Para 18
G [1988] 3 SCR 73 overruled Para 18
(2012) 1 SCC 358 overruled Para 18

H
JOSEPH SHINE v. UNION OF INDIA 803

CRIMINAL ORIGINAL JURISDICTION : Writ Petition A
(Criminal) No. 194 OF 2017
Under Article 32 of the Constitution of India.
Pinky Anand, ASG, Ms. Meenakshi Arora, Sr. Adv., Kaleeswaram
Raj, Ms. Thulasi K. Raj, Ms. Maitreyi Hegde, Suvidutt M. S., Balendu
Shekhar, Ms. Madhavi Diwan, Ms. Saudamini Sharma, Ms. Snidha B
Mehra, Sumit Teterwal, Hemant Arya, Ms. Kirti Dua, R. Balasubramnian,
Sachin Sharma, Aarti Sharma, B. V. Balaram Das, Rahul Narayan,
Ms. Liz Mathew, Bhabna Das, Navneet R., Nishant Jethra, Abhishek
Aanand Rai (For Dr. Sushil Balwada), Sunil Fernandes, Ms. Tripti Tandon,
Ms. Nupur Kumar, Ms. Anju Thomas, Ms. Priyansha Sharma,
Ms. Aanchal Singh, Suraj Sanap, Ms. Priyam Lizmary, Mrs. Abha Singh, C
Munawar Naseem, Ms. Palak Mishra, Ms. Prabjot Hora, Dhiraj A. Philip,
K. Parmeshwar, Ms. Jayena Kuthari, Ms. Anindita Pujari, Ms. Kavita
Bhardwaj, Ms. Aarti Kumar, Advs. for the appearing parties.
The Judgments of the Court were delivered by
D
DIPAK MISRA, CJI (For himself and A.M. Khanwilkar, J.)
1. The beauty of the Indian Constitution is that it includes ‘I’ ‘you’
and ‘we’. Such a magnificent, compassionate and monumental document
embodies emphatic inclusiveness which has been further nurtured by
judicial sensitivity when it has developed the concept of golden triangle
of fundamental rights. If we have to apply the parameters of a E
fundamental right, it is an expression of judicial sensibility which further
enhances the beauty of the Constitution as conceived of. In such a
situation, the essentiality of the rights of women gets the real requisite
space in the living room of individual dignity rather than the space in an
annexe to the main building. That is the manifestation of concerned
sensitivity. Individual dignity has a sanctified realm in a civilized society. F
The civility of a civilization earns warmth and respect when it respects
more the individuality of a woman. The said concept gets a further accent
when a woman is treated with the real spirit of equality with a man. Any
system treating a woman with indignity, inequity and inequality or
discrimination invites the wrath of the Constitution. Any provision that G
might have, few decades back, got the stamp of serene approval may
have to meet its epitaph with the efflux of time and growing constitutional
precepts and progressive perception. A woman cannot be asked to think
as a man or as how the society desires. Such a thought is abominable,
for it slaughters her core identity. And, it is time to say that a husband is
not the master. Equality is the governing parameter. All historical H
804 SUPREME COURT REPORTS [2018] 11 S.C.R.

A perceptions should evaporate and their obituaries be written. It is advisable
to remember what John Stuart Mill had observed:-
“The legal subordination of one sex to another – is wrong in
itself, and now one of the chief hindrances to human
improvement; and that it ought to be replaced by a system of
B perfect equality, admitting no power and privilege on the one
side, nor disability on the other.”1
We are commencing with the aforesaid prefatory note as we are
adverting to the constitutional validity of Section 497 of the Indian Penal
Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).
C 2. At this juncture, it is necessary to state that though there is
necessity of certainty of law, yet with the societal changes and more so,
when the rights are expanded by the Court in respect of certain aspects
having regard to the reflective perception of the organic and living
Constitution, it is not apposite to have an inflexible stand on the foundation
D that the concept of certainty of law should be allowed to prevail and
govern. The progression in law and the perceptual shift compels the
present to have a penetrating look to the past.
3. When we say so, we may not be understood that precedents
are not to be treated as such adn that in the excuse of perceptual shift,
E the binding nature of precedent should not be allowed to retain its status
or allowed to be diluted. When a constitutional court faces such a
challenge, namely, to be detained by a precedent or to grow out of the
same because of the normative changes that have occurred in the other
arenas of law and the obtaining precedent does not cohesively fit into
the same, the concept of cohesive adjustment has to be in accord with
F the growing legal interpretation and the analysis has to be different, more
so, where the emerging concept recognises a particular right to be planted
in the compartment of a fundamental right, such as Articles 14 and 21 of
the Constitution. In such a backdrop, when the constitutionality of a
provision is assailed, the Court is compelled to have a keen scrutiny of
G the provision in the context of developed and progressive interpretation.
A constitutional court cannot remain entrenched in a precedent, for the
controversy relates to the lives of human beings who transcendentally
grow. It can be announced with certitude that transformative
constitutionalism asserts itself every moment and asserts itself to have
1
H On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)
JOSEPH SHINE v. UNION OF INDIA 805
[DIPAK MISRA, CJI]

its space. It is abhorrent to any kind of regressive approach. The whole A
thing can be viewed from another perspective. What might be acceptable
at one point of time may melt into total insignificance at another point of
time. However, it is worthy to note that the change perceived should not
be in a sphere of fancy or individual fascination, but should be founded
on the solid bedrock of change that the society has perceived, the spheres
B
in which the legislature has responded and the rights that have been
accentuated by the constitutional courts. To explicate, despite conferring
many a right on women within the parameters of progressive
jurisprudence and expansive constitutional vision, the Court cannot
conceive of women still being treated as a property of men, and secondly,
where the delicate relationship between a husband and wife does not C
remain so, it is seemingly implausible to allow a criminal offence to enter
and make a third party culpable.
4. We may presently state the nature of the lis.
5. The instant writ petition has been filed under Article 32 of the
Constitution of India challenging the validity of Section 497 IPC. A three- D
Judge Bench, on the first occasion, taking note of the authorities in Yusuf
Abdul Aziz v. State of Bombay2, Sowmithri Vishnu v. Union of India
and another3, V. Revathi v. Union of India and others4 and W.
Kalyani v. State through Inspector of Police and another5 and
appreciating the submissions advanced by the learned counsel for the E
petitioner, felt the necessity to have a re-look at the constitutionality of
the provision. At that juncture, the Court noted that:-
“Prima facie, on a perusal of Section 497 of the Indian Penal
Code, we find that it grants relief to the wife by treating her as a
victim. It is also worthy to note that when an offence is committed F
by both of them, one is liable for the criminal offence but the
other is absolved. It seems to be based on a societal presumption.
Ordinarily, the criminal law proceeds on gender neutrality but in
this provision, as we perceive, the said concept is absent. That
apart, it is to be seen when there is conferment of any affirmative
right on women, can it go to the extent of treating them as the G
victim, in all circumstances, to the peril of the husband. Quite
2
1954 SCR 930 : AIR 1954 SC 321
3
(1985)Supp SCC 137 : AIR 1985 SC 1618
4
(1988)2 SCC 72
5
(2012) 1 SCC 358 H
806 SUPREME COURT REPORTS [2018] 11 S.C.R.

A apart from that, it is perceivable from the language employed in
the Section that the fulcrum of the offence is destroyed once the
consent or the connivance of the husband is established. Viewed
from the said scenario, the provision really creates a dent on the
individual independent identity of a woman when the emphasis
is laid on the connivance or the consent of the husband. This
B
tantamounts to subordination of a woman where the Constitution
confers equal status. A time has come when the society must
realise that a woman is equal to a man in every field. This
provision, prima facie, appears to be quite archaic. When the
society progresses and the rights are conferred, the new
C generation of thoughts spring, and that is why, we are inclined to
issue notice.”
That is how the matter has been placed before us.
6. At this stage, one aspect needs to be noted. At the time of
initial hearing before the three-Judge Bench, the decision in Yusuf Abdul
D Aziz (supra) was cited and the cited Law Report reflected that the
judgment was delivered by four learned Judges and later on, it was
noticed, as is reflectible from the Supreme Court Reports, that the decision
was rendered by a Constitution Bench comprising of five Judges of this
Court.
E 7. The said factual discovery will not detain us any further. In
Yusuf Abdul Aziz (supra), the Court was dealing with the controversy
that had travelled to this Court while dealing with a different fact situation.
In the said case, the question arose whether Section 497 contravened
Articles 14 and 15 of the Constitution of India. In the said case, the
F appellant was being prosecuted for adultery under Section 497 IPC. As
soon as the complaint was filed, the husband applied to the High Court
of Bombay to determine the constitutional question under Article 228 of
the Constitution. The Constitution Bench referring to Section 497 held
thus:-

G “3. Under Section 497 the offence of adultery can only be
committed by a man but in the absence of any provision to the
contrary the woman would be punishable as an abettor. The last
sentence in Section 497 prohibits this. It runs—
“In such case the wife shall not be punishable as an abettor.” It
is said that this offends Articles 14 and 15.
H
JOSEPH SHINE v. UNION OF INDIA 807
[DIPAK MISRA, CJI]

The portion of Article 15 on which the appellant relies is this: A
“The State shall not discriminate against any citizen on grounds
only of ... sex.”
But what he overlooks is that that is subject to clause (3) which
runs—
B
“Nothing in this article shall prevent the State from making any
special provision for women ....”
The provision complained of is a special provision and it is made
for women, therefore it is saved by clause (3).
4. It was argued that clause (3) should be confined to provisions C
which are beneficial to women and cannot be used to give them
a licence to commit and abet crimes. 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 licence
to commit the offence of which punishment has been prohibited. D
5. Article 14 is general and must be read with the other provisions
which set out the ambit of fundamental rights. Sex is a sound
classification and although there can be no discrimination in
general on that ground, the Constitution itself provides for special
provisions in the case of women and children. The two articles
E
read together validate the impugned clause in Section 497 of the
Indian Penal Code.
6. The appellant is not a citizen of India. It was argued that he
could not invoke Articles 14 and 15 for that reason. The High
Court held otherwise. It is not necessary for us to decide this
F
question in view of our decision on the other issue.”
On a reading of the aforesaid passages, it is manifest that the
Court treated the provision to be a special provision made for women
and, therefore, saved by clause (3) of Article 15. Thus, the Court
proceeded on the foundation of affirmative action.
G
8. In this context, we may refer to the observation made by the
Constitution Bench in Central Board of Dawoodi Bohra Community
and another v. State of Maharashtra and another6 while making a
reference to a larger Bench. The said order reads thus:-
6
(2005) 2 SCC 673 H
808 SUPREME COURT REPORTS [2018] 11 S.C.R.

A “12. Having carefully considered the submissions made by the
learned Senior Counsel for the parties and having examined the
law laid down by the Constitution Benches in the above said
decisions, we would like to sum up the legal position in the
following terms:
B (1) The law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of
lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from
the view of the law taken by a Bench of larger quorum. In case
C of doubt all that the Bench of lesser quorum can do is to invite
the attention of the Chief Justice and request for the matter being
placed for hearing before a Bench of larger quorum than the
Bench whose decision has come up for consideration. It will be
open only for a Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the earlier Bench
D of coequal strength, whereupon the matter may be placed for
hearing before a Bench consisting of a quorum larger than the
one which pronounced the decision laying down the law the
correctness of which is doubted.
(3)The above rules are subject to two exceptions: (i) the
E abovesaid rules do not bind the discretion of the Chief Justice in
whom vests the power of framing the roster and who can direct
any particular matter to be placed for hearing before any particular
Bench of any strength; and (ii) in spite of the rules laid down
hereinabove, if the matter has already come up for hearing before
F a Bench of larger quorum and that Bench itself feels that the
view of the law taken by a Bench of lesser quorum, which view
is in doubt, needs correction or reconsideration then by way of
exception (and not as a rule) and for reasons given by it, it may
proceed to hear the case and examine the correctness of the
previous decision in question dispensing with the need of a specific
G reference or the order of the Chief Justice constituting the Bench
and such listing. Such was the situation in Raghubir Singh7 and
Hansoli Devi 8.”

7
Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754
8
H Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273
JOSEPH SHINE v. UNION OF INDIA 809
[DIPAK MISRA, CJI]

In the light of the aforesaid order, it was necessary to list the A
matter before a Constitution Bench consisting of five Judges. As noted
earlier, considering the manner in which we intend to deal with the matter,
it is not necessary to refer to a larger Bench.
9. Sections 497 and 498 of IPC read thus:-
“Section 497 : Adultery B

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 C
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.
Section 498 : Enticing or taking away or detaining with
criminal intent a married woman D
Whoever takes or entices away any woman who is and whom
he knows or has reason to believe to be the wife of any other
man, from that man, or from any person having the care of her
on behalf of that man, with intent that she may have illicit
intercourse with any person, or conceals or detains with that E
intent any such woman, shall be punished with imprisonment of
either description for a term which may extend to two years, or
with fine, or with both.”
10. Section 198 of CrPC provides for prosecution for offences
against marriage. Section 198 is reproduced below:- F
“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- G
(a) Where such person is under the age of eighteen years or is
an idiot or a lunatic, or is from sickness or infirmity unable to
make a complaint, or is a woman who, according to the local
customs and manners, ought not to be compelled to appear in
H
810 SUPREME COURT REPORTS [2018] 11 S.C.R.

A public, some other person may, with the leave of the Court, make
a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of
the Armed Forces of the Union under conditions which are
certified by his Commanding Officer as precluding him from
B obtaining leave of absence to enable him to make a complaint in
person, some other person authorised by the husband in
accordance with the provisions of sub- section (4) may make a
complaint on his behalf;
(c) where the person aggrieved by an offence punishable
C under section 494 or section 495 of the Indian Penal Code (45 of
1860 ) is the wife, complaint may be made on her behalf by her
father, mother, brother, sister, son or daughter or by her father’ s
or mother’ s brother or sister 2, or, with the leave of the Court,
by any other person related to her by blood, marriage or adoption.
D (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 com- mitted may, with the leave of the Court, make
E a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to
sub-section (1), the complaint is sought to be made on behalf of
a person under the age of eighteen years or of a lunatic by a
person who has not been appointed or declared by a competent
F authority to be the guardian of the person of the minor or lunatic,
and the Court is satisfied that there is a guardian so appointed or
declared, the Court shall, before granting the application for leave,
cause notice to be given to such guardian and give him a
reasonable opportunity of being heard.
G (4) The authorisation referred to in clause (b) of the proviso to
sub-section (1), shall be in writing, shall be signed or otherwise
attested by the husband, shall contain a statement to the effect
that he has been informed of the allegations upon which the
complaint is to be founded, shall be countersigned by his
Commanding Officer, and shall be accompanied by a certificate
H
JOSEPH SHINE v. UNION OF INDIA 811
[DIPAK MISRA, CJI]

signed by that Officer to the effect that leave of absence for the A
purpose of making a complaint in person cannot for the time
being be granted to the husband.
(5) Any document purporting to be such an authorisation and
complying with the provisions of sub-section (4), and any
document purporting to be a certificate required by that sub- B
section shall, unless the contrary is proved, be presumed to be
genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section
376 of the Indian Penal Code (45 of 1860), where such offence
consists of sexual intercourse by a man with his own wife, the C
wife being under 3 [eighteen years of age], if more than one
year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or
attempt to commit, an offence as they apply to the offence.”
11. On a perusal of the aforesaid provision, it is clear that the D
husband of the woman has been treated to be a person aggrieved for the
offences punishable under Sections 497 and 498 of the IPC. The rest of
the proviso carves out an exception as to who is entitled to file a complaint
when the husband is absent. It may be noted that the offence is non-
cognizable. E
12. The three-Judge Bench, while referring the matter, had briefly
dwelled upon the impact of the provision. To appreciate the constitutional
validity, first, we shall deal with the earlier pronouncements and the
principles enunciated therein and how we can have a different perspective
of such provisions. We have already referred to what has been stated in F
Yusuf Abdul Aziz (supra).
13. In Sowmithri Vishnu (supra), a petition preferred under Article
32 of the Constitution challenged the validity of Section 497 IPC. We do
not intend to advert to the factual matrix. It was contended before the
three-Judge Bench that Section 497 confers upon the husband the right
G
to prosecute the adulterer but it does not confer any right upon the wife
to prosecute the woman with whom her husband has committed adultery;
that Section 497 does not confer any right on the wife to prosecute the
husband who has committed adultery with another woman; and that
Section 497 does not take in cases where the husband has sexual relations
with an unmarried woman with the result that husbands have a free H
812 SUPREME COURT REPORTS [2018] 11 S.C.R.

A licence under the law to have extramarital relationships with unmarried
women. That apart, the submission was advanced that Section 497 is a
flagrant instance of ‘gender discrimination’, ‘legislative despotism’ and
‘male chauvinism’. At first blush, it may appear as if it is a beneficial
legislation intended to serve the interests of women but, on closer
examination, it would be found that the provision contained in the section
B
is a kind of “romantic paternalism” which stems from the assumption
that women, like chattels, are the property of men.
14. The Court referred to the submissions and held thus:-
“…..The argument really comes to this that the definition should
C be recast by extending the ambit of the offence of adultery so
that, both the man and the woman should be punishable for the
offence of adultery. Were such an argument permissible, several
provisions of the penal law may have to be struck down on the
ground that, either in their definition or in their prescription of
punishment, they do not go far enough. For example, an argument
D could be advanced as to why the offence of robbery should be
punishable with imprisonment for ten years under Section 392 of
the Penal Code but the offence of adultery should be punishable
with a sentence of five years only: “Breaking a matrimonial home
is no less serious a crime than breaking open a house.” Such
E arguments go to the policy of the law, not to its constitutionality,
unless, while implementing the policy, any provision of the
Constitution is infringed. We cannot accept that in defining the
offence of adultery so as to restrict the class of offenders to
men, any constitutional provision is infringed. It is commonly
accepted that it is the man who is the seducer and not the woman.
F This position may have undergone some change over the years
but it is for the Legislature to consider whether Section 497 should
be amended appropriately so as to take note of the
“transformation” which the society has undergone….”
Proceeding further, the three-Judge Bench held that the offence
G of adultery as defined in that Section can only be committed by a man,
not by a woman. Indeed, the Section expressly provides that the wife
shall not be punishable even as an abettor. No grievance can then be
made that the Section does not allow the wife to prosecute the husband
for adultery. The contemplation of the law, evidently, is that the wife,
H who is involved in an illicit relationship with another man, is a victim and
JOSEPH SHINE v. UNION OF INDIA 813
[DIPAK MISRA, CJI]

not the author of the crime. The offence of adultery, as defined in Section A
497, is considered by the Legislature as an offence against the sanctity
of the matrimonial home, an act which is committed by a man, as it
generally is. Therefore, those men who defile that sanctity are brought
within the net of the law. In a sense, the same point is reverted to; who
can prosecute whom for which offence depends, firstly, on the definition
B
of the offence and, secondly, upon the restrictions placed by the law of
procedure on the right to prosecute.
15.The Court further held:-
“…..Since Section 497 does not contain a provision that she must
be impleaded as a necessary party to the prosecution or that she C
would be entitled to be heard, the section is said to be bad. Counsel
is right that Section 497 does not contain a provision for hearing
the married woman with whom the accused is alleged to have
committed adultery. But, that does not justify the proposition that
she is not entitled to be heard at the trial. We have no doubt that
if the wife makes an application in the trial court that she should D
be heard before a finding is recorded on the question of adultery,
the application would receive due consideration from the court.
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, directly and immediately, E
by the decision of the court. In fact, instances are not unknown
in criminal law where, though the prosecution is in the charge of
the Public Prosecutor, the private complainant is given permission
to oversee the proceedings. One step more, and the wife could
be allowed a hearing before an adverse finding is recorded that,
as alleged by her husband, the accused had committed adultery F
with her. The right of hearing is a concomitant of the principles
of natural justice, though not in all situations. That right can be
read into the law in appropriate cases. Therefore, the fact that a
provision for hearing the wife is not contained in Section 497
cannot render that section unconstitutional as violating Article 21.” G
After so stating, the Court placed reliance on Yusuf Abdul Aziz
(supra) and held that the same does not offend Articles 14 and 15 of the
Constitution and opined that the stability of marriages is not an ideal to
be scorned. Being of this view, the Court dismissed the petition.
H
814 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 16. In V. Revathi v. Union of India and others9, the Court
analysed the design of the provision and ruled:-
“…..Thus the law permits neither the husband of the offending
wife to prosecute his wife nor does the law permit the wife to
prosecute the offending husband for being disloyal to her. Thus
B both the husband and the wife are disabled from striking each
other with the weapon of criminal law. The petitioner wife
contends that whether or not the law permits a husband to
prosecute his disloyal wife, the wife cannot be lawfully disabled
from prosecuting her disloyal husband…..”
C It placed heavy reliance on the three-Judge Bench in Sowmithri
Vishnu (supra) and proceeded to state that the community punishes the
‘outsider’ who breaks into the matrimonial home and occasions the
violation of sanctity of the matrimonial tie by developing an illicit
relationship with one of the spouses subject to the rider that the erring
‘man’ alone can be punished and not the erring woman. It further went
D on to say that it does not arm the two spouses to hit each other with the
weapon of criminal law. That is why, neither the husband can prosecute
the wife and send her to jail nor can the wife prosecute the husband and
send him to jail. There is no discrimination based on sex. While the
outsider who violates the sanctity of the matrimonial home is punished, a
E rider has been added that if the outsider is a woman, she is not punished.
There is, thus, reverse discrimination in “favour” of the woman rather
than “against” her. The law does not envisage the punishment of any of
the spouses at the instance of each other. Thus, there is no discrimination
against the woman insofar as she is not permitted to prosecute her
husband. A husband is not permitted because the wife is not treated as
F an offender in the eye of law. The wife is not permitted as Section
198(1) read with Section 198(2) does not permit her to do so. In the
ultimate analysis, the 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. Thus, no discrimination has been practised in
G circumscribing the scope of Section 198(2) CrPC and fashioning it in
such a manner that the right to prosecute the adulterer is restricted to
the husband of the adulteress but has not been extended to the wife of
the adulterer. Expressing this view, the Court held that the provision is
not vulnerable to the charge of hostile discrimination.
9
H (1988) 2 SCC 72
JOSEPH SHINE v. UNION OF INDIA 815
[DIPAK MISRA, CJI]

17. In W. Kalyani v. State Thro’ Inspector of Police and A
another10, the Court held:-
“10. The provision is currently under criticism from certain
quarters for showing a strong gender bias for it makes the position
of a married woman almost as a property of her husband. But in
terms of the law as it stands, it is evident from a plain reading of B
the section that only a man can be proceeded against and punished
for the offence of adultery. Indeed, the section provides expressly
that the wife cannot be punished even as an abettor. Thus, the
mere fact that the appellant is a woman makes her completely
immune to the charge of adultery and she cannot be proceeded
against for that offence.” C

Be it noted, the issue of constitutional validity did not arise in the
said case.
18. At this juncture, we think it seemly to state that we are only
going to deal with the constitutional validity of Section 497 IPC and D
Section 198 CrPC. The learned counsel for the petitioner submits that
the provision by its very nature is arbitrary and invites the frown of
Article 14 of the Constitution. In Shayara Bano v. Union of India and
others11, the majority speaking through Nariman, J., ruled thus :-
“60. Hard as we tried, it is difficult to discover any ratio in this E
judgment, as one part of the judgment contradicts another part.
If one particular statutory enactment is already under challenge,
there is no reason why other similar enactments which were
also challenged should not have been disposed of by this Court.
Quite apart from the above, it is a little difficult to appreciate
such declination in the light of Prem Chand Garg (supra). This F
judgment, therefore, to the extent that it is contrary to at least
two Constitution 346 Bench decisions cannot possibly be said to
be good law.
61. It is at this point that it is necessary to see whether a
fundamental right has been violated by the 1937 Act insofar as it G
seeks to enforce Triple Talaq as a rule of law in the Courts in
India.

10
(2012) 1 SCC 358
11
(2017) 9 SCC 1 H
816 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 62. Article 14 of the Constitution of India is a facet of equality of
status and opportunity spoken of in the Preamble to the
Constitution. The Article naturally divides itself into two parts-
(1) equality before the law, and (2) the equal protection of the
law. Judgments of this Court have referred to the fact that the
equality before law concept has been derived from the law in
B
the U.K., and the equal protection of the laws has been borrowed
from the 14th Amendment to the Constitution of the United States
of America. In a revealing judgment, Subba Rao, J., dissenting,
in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34
further went on to state that whereas equality before law is a
C negative concept, the equal protection of the law has positive
content. The early judgments of this Court referred to the
“discrimination” aspect of Article 14, and evolved a rule by which
subjects could be classified. If 347 the classification was
“intelligible” having regard to the object sought to be achieved, it
would pass muster under Article 14’s anti-discrimination aspect.
D
Again, Subba Rao, J., dissenting, in Lachhman Das v. State of
Punjab, (1963) 2 SCR 353 at 395, warned that:
“50......Overemphasis on the doctrine of classification or an
anxious and sustained attempt to discover some basis for
classification may gradually and imperceptibly deprive the
E Article of its glorious content.”
He referred to the doctrine of classification as a “subsidiary rule”
evolved by courts to give practical content to the said Article.
63. In the pre-1974 era, the judgments of this Court did refer to
F the “rule of law” or “positive” aspect of Article 14, the
concomitant of which is that if an action is found to be arbitrary
and, therefore, unreasonable, it would negate the equal protection
of the law contained in Article 14 and would be struck down on
this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR
703, this Court held:
G
“In this context it is important to emphasize that the absence
of arbitrary power is the first essential of the rule of law upon
which our whole constitutional system is based. In a system
governed by rule of law, 348 discretion, when conferred upon
executive authorities, must be confined within clearly defined
H
JOSEPH SHINE v. UNION OF INDIA 817
[DIPAK MISRA, CJI]

limits. The rule of law from this point of view means that A
decisions should be made by the application of known principles
and rules and, in general, such decisions should be predictable
and the citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable and
such a decision is the antithesis of a decision taken in accordance
B
with the rule of law. (See Dicey — “Law of the Constitution”
— 10th Edn., Introduction cx). “Law has reached its finest
moments”, stated Douglas, J. in United States v. Wunderlick
[342 US 98],
“9.....when it has freed man from the unlimited discretion of
some ruler…. Where discretion, is absolute, man has always C
suffered”. It is in this sense that the rule of law may be said to
be the sworn enemy of caprice. Discretion, as Lord Mansfield
stated it in classic terms in the case of John Wilkes [(1770) 4
Burr. 2528 at 2539],
“.....means sound discretion guided by law. It must be D
governed by rule, not by humour : it must not be arbitrary,
vague, and fanciful......”.”
This was in the context of service rules being seniority rules,
which applied to the Income Tax Department, being held to be
violative of Article 14 of the Constitution of India.” E

19. Thereafter, our learned brother referred to the authorities in
State of Mysore v. S.R. Jayaram 12, Indira Nehru Gandhi v. Raj
Narain13, E.P. Royappa v. State of Tamil Nadu14, Maneka Gandhi
v. Union of India15, A.L. Kalra v. Project and Equipment Corporation
of India Ltd. 16, Ajay Hasia v. Khalid Mujib Sehravardi17, K.R. F
Lakshmanan v. State of T.N. 18 and two other Constitution Bench
judgments in Mithu v. State of Punjab19 and Sunil Batra v. Delhi
Administration20 and, eventually, came to hold thus:-
12
(1968) 1 SCR 349
13
(1975) Supp SCC 1 G
14
(1974) 4 SCC 3
15
(1978) 1 SCC 248
16
(1984) 3 SCC 316
17
(1981) 1 SCC 722
18
(1996) 2 SCC 226
19
(1983) 2 SCC 277
20
(1978) 4 SCC 494 H
818 SUPREME COURT REPORTS [2018] 11 S.C.R.

A “It is, therefore, clear from a reading of even the aforesaid two
Constitution Bench judgments that Article 14 has been referred
to in the context of the constitutional invalidity of statutory law to
show that such statutory law will be struck down if it is found to
be “arbitrary”.”
B And again:-
“.....The test of manifest arbitrariness, therefore, as laid down in
the aforesaid judgments would apply to invalidate legislation as
well as subordinate legislation under Article 14. Manifest
arbitrariness, therefore, must be something done by the legislature
C capriciously, irrationally and/or without adequate determining
principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary.
We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to
negate legislation as well under Article 14.”
D
20. We respectfully concur with the said view.
21. In Yusuf Abdul Aziz (supra), the Court understood the
protection of women as not discriminatory but as being an affirmative
provision under clause (3) of Article 15 of the Constitution. We intend to
E take the path of expanded horizon as gender justice has been expanded
by this Court.
22. We may now proceed to test the provision on the touchstone
of the aforesaid principles. On a reading of the provision, it is demonstrable
that women are treated as subordinate to men inasmuch as it lays down
F that when there is connivance or consent of the man, there is no offence.
This treats the woman as a chattel. It treats her as the property of man
and totally subservient to the will of the master. It is a reflection of the
social dominance that was prevalent when the penal provision was
drafted.
23. As we notice, the provision treats a married woman as a
G
property of the husband. It is interesting to note that Section 497 IPC
does not bring within its purview an extra marital relationship with an
unmarried woman or a widow. The dictionary meaning of “adultery” is
that a married person commits adultery if he has sex with a woman with
whom he has not entered into wedlock. As per Black’s Law Dictionary,
H
JOSEPH SHINE v. UNION OF INDIA 819
[DIPAK MISRA, CJI]

‘adultery’ is the voluntary sexual intercourse of a married person with a A
person other than the offender’s husband or wife. However, the provision
has made it a restricted one as a consequence of which a man, in certain
situations, becomes criminally liable for having committed adultery while,
in other situations, he cannot be branded as a person who has committed
adultery so as to invite the culpability of Section 497 IPC. Section 198
B
CrPC deals with a “person aggrieved”. Sub-section (2) of Section 198
treats the husband of the woman as 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 the time when
such offence was committed with the leave of the court. It does not
consider the wife of the adulterer as an aggrieved person. The offence C
and the deeming definition of an aggrieved person, as we find, is absolutely
and manifestly arbitrary as it does not even appear to be rational and it
can be stated with emphasis that it confers a licence on the husband to
deal with the wife as he likes which is extremely excessive and
disproportionate. We are constrained to think so, as it does not treat a
D
woman as an abettor but protects a woman and simultaneously, it does
not enable the wife to file any criminal prosecution against the husband.
Indubitably, she can take civil action but the husband is also entitled to
take civil action. However, that does not save the provision as being
manifestly arbitrary. That is one aspect of the matter. If the entire provision
is scanned being Argus-eyed, we notice that on the one hand, it protects E
a woman and on the other, it does not protect the other woman. The
rationale of the provision suffers from the absence of logicality of
approach and, therefore, we have no hesitation in saying that it suffers
from the vice of Article 14 of the Constitution being manifestly arbitrary.
24. Presently, we shall address the issue against the backdrop of F
Article 21 of the Constitution. For the said purpose, it is necessary to
devote some space with regard to the dignity of women and the concept
of gender equality.
25. In Arun Kumar Agrawal and another v. National Insurance
Company Limited and others21, the issue related to the criteria for G
determination of compensation payable to the dependents of a woman
who died in road accident. She did not have a regular income. Singhvi, J.
rejected the stand relating to determination of compensation by comparing
a house wife to that of a house keeper or a servant or an employee who
21
(2010) 9 SCC 218 H
820 SUPREME COURT REPORTS [2018] 11 S.C.R.

A works for a fixed period. The learned Judge thought it unjust, unfair and
inappropriate. In that context, the learned Judge stated:-
“26. In India the courts have recognised that the contribution
made by the wife to the house is invaluable and cannot be
computed in terms of money. The gratuitous services rendered
B by the wife with true love and affection to the children and her
husband and managing the household affairs cannot be equated
with the services rendered by others. A wife/mother does not
work by the clock. She is in the constant attendance of the family
throughout the day and night unless she is employed and is
required to attend the employer’s work for particular hours. She
C takes care of all the requirements of the husband and children
including cooking of food, washing of clothes, etc. She teaches
small children and provides invaluable guidance to them for their
future life. A housekeeper or maidservant can do the household
work, such as cooking food, washing clothes and utensils, keeping
D the house clean, etc., but she can never be a substitute for a
wife/mother who renders selfless service to her husband and
children.”
26. Ganguly, J., in his concurring opinion, referred to the Australian
Family Property Law and opined that the said law had adopted a very
gender sensitive approach. The learned Judge reproduced:-
E
“the contribution made by a party to the marriage to the welfare
of the family constituted by the parties to the marriage and any
children of the marriage, including any contribution made in the
capacity of a homemaker or parent.”
27. In State of Madhya Pradesh v. Madanlal22, the Court held:-
F
“Dignity of a woman is a part of her non-perishable and immortal self
and no one should ever think of painting it in clay. There cannot be a
compromise or settlement as it would be against her honour which matters
the most. It is sacrosanct. Sometimes solace is given that the perpetrator
of the crime has acceded to enter into wedlock with her which is nothing
G but putting pressure in an adroit manner; and we say with emphasis that
the Courts are to remain absolutely away from this subterfuge to adopt
a soft approach to the case, for any kind of liberal approach has to be
put in the compartment of spectacular error. Or to put it differently, it
would be in the realm of a sanctuary of error.”
22
H (2015) 7 SCC 681
JOSEPH SHINE v. UNION OF INDIA 821
[DIPAK MISRA, CJI]

28. In Pawan Kumar v. State of Himachal Pradesh23, the Court, A
dealing with the concept of equality and dignity of a woman, observed:-
“47 …in a civilized society eve-teasing is causing harassment to
women in educational institutions, public places, parks, railways
stations and other public places which only go to show that
requisite sense of respect for women has not been socially B
cultivated. A woman has her own space as a man has. She enjoys
as much equality under Article 14 of the Constitution as a man
does. The right to live with dignity as guaranteed under Article
21 of the Constitution cannot be violated by indulging in obnoxious
act of eve-teasing. It affects the fundamental concept of gender
sensitivity and justice and the rights of a woman under Article C
14 of the Constitution. That apart it creates an incurable dent in
the right of a woman which she has under Article 15 of the
Constitution. One is compelled to think and constrained to
deliberate why the women in this country cannot be allowed to
live in peace and lead a life that is empowered with a dignity and D
freedom. It has to be kept in mind that she has a right to life and
entitled to love according to her choice. She has an individual
choice which has been legally recognized. It has to be socially
respected. No one can compel a woman to love. She has the
absolute right to reject.
E
48. In a civilized society male chauvinism has no room. The
Constitution of India confers the affirmative rights on women
and the said rights are perceptible from Article 15 of the
Constitution. When the right is conferred under the Constitution,
it has to be understood that there is no condescendation. A man
should not put his ego or, for that matter, masculinity on a pedestal F
and abandon the concept of civility. Egoism must succumb to
law. Equality has to be regarded as the summum bonum of the
constitutional principle in this context.”
29. Lord Keith in R v. R24 declared:-
“marriage is in modern times regarded as a partnership of equals, G
and no longer one in which the wife must be the subservient
chattel of the husband.”

23
(2017) 7 SCC 780
24
[1991] 4 All ER 481 at p. 484 H
822 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 30. Lord Denning25 states:-
“A wife is no longer her husband’s chattel. She is beginning to
be regarded by the laws as a partner in all affairs which are their
common concern.”
31. In Shamima Farooqui v. Shahid Khan26, the Court ruled:-
B
“Chivalry, a perverse sense of human egotism, and clutching of
feudal megalomaniac ideas or for that matter, any kind of
condescending attitude have no room. They are bound to be
sent to the ancient woods, and in the new horizon people should
proclaim their own ideas and authority.”
C And again:-
“Any other idea floated or any song sung in the invocation of
male chauvinism is the proposition of an alien, a total stranger -
an outsider. That is the truth in essentiality.”

D 32. In Voluntary Health Association of Punjab v. Union of
India27, one of us (Dipak Misra, J.), in his concurring opinion, stated
that women have to be regarded as equal partners in the lives of men
and it has to be borne in mind that they have equal role in the society,
that is, in thinking, participating and leadership. The issue related to
female foeticide and it was stated thus:-
E
“21. When a female foeticide takes place, every woman who
mothers the child must remember that she is killing her own
child despite being a mother. That is what abortion would mean
in social terms. Abortion of a female child in its conceptual
eventuality leads to killing of a woman. Law prohibits it; scriptures
F forbid it; philosophy condemns it; ethics deprecate it, morality
decries it and social science abhors it. Henrik Ibsen emphasised
on the individualism of woman. John Milton treated her to be the
best of all God’s work. In this context, it will be appropriate to
quote a few lines from Democracy in America by Alexis de
Tocqueville:
G
“If I were asked … to what the singular prosperity and growing
strength of that people [Americans] ought mainly to be attributed,
I should reply: To the superiority of their women.”
25
The Due Process of Law (London, Butterworths, 1980, at page 212)
26
(2015) 5 SCC 705
H 27
(2013) 4 SCC 1
JOSEPH SHINE v. UNION OF INDIA 823
[DIPAK MISRA, CJI]

22. At this stage, I may with profit reproduce two paragraphs A
from Ajit Savant Majagvai v. State of Karnataka28: (SCC pp.
113-14, paras 3 & 4)
“3. Social thinkers, philosophers, dramatists, poets and writers
have eulogised the female species of the human race and have
always used beautiful epithets to describe her temperament and B
personality and have not deviated from that path even while
speaking of her odd behaviour, at times. Even in sarcasm, they
have not crossed the literary limit and have adhered to a particular
standard of nobility of language. Even when a member of her
own species, Madame De Stael, remarked ‘I am glad that I am
not a man; for then I should have to marry a woman’, there was C
wit in it. When Shakespeare wrote, ‘Age cannot wither her; nor
custom stale, her infinite variety’, there again was wit.
Notwithstanding that these writers have cried hoarse for respect
for ‘woman’, notwithstanding that Schiller said ‘Honour women!
They entwine and weave heavenly roses in our earthly life’ and D
notwithstanding that the Mahabharata mentioned her as the
source of salvation, crime against ‘woman’ continues to rise and
has, today undoubtedly, risen to alarming proportions.
4. It is unfortunate that in an age where people are described
as civilised, crime against ‘female’ is committed even when
the child is in the womb as the ‘female’ foetus is often E
destroyed to prevent the birth of a female child. If that child
comes into existence, she starts her life as a daughter, then
becomes a wife and in due course, a mother. She rocks the
cradle to rear up her infant, bestows all her love on the
child and as the child grows in age, she gives to the child all F
that she has in her own personality. She shapes the destiny
and character of the child. To be cruel to such a creature is
unthinkable. To torment a wife can only be described as the
most hated and derisive act of a human being.”
[Emphasis supplied]
G
And again:-
“23. In Madhu Kishwar v. State of Bihar29 this Court had stated
that Indian women have suffered and are suffering discrimination
in silence.
28
(1997) 7 SCC 110
29
(1996) 5 SCC 125 H
824 SUPREME COURT REPORTS [2018] 11 S.C.R.

A “28. … Self-sacrifice and self-denial are their nobility and
fortitude and yet they have been subjected to all inequities,
indignities, inequality and discrimination.” (SCC p. 148, para 28)
24. The way women had suffered has been aptly reflected by
an author who has spoken with quite a speck of sensibility:
B “Dowry is an intractable disease for women, a bed of arrows
for annihilating self-respect, but without the boon of wishful
death.”
25. Long back, Charles Fourier had stated:

C “The extension of women’s rights is the basic principle of all
social progress.”
26. Recapitulating from the past, I may refer to certain sayings
in the Smritis which put women in an elevated position. This
Court in Nikku Ram case4 had already reproduced the first line
D of the shloka. The second line of the same which is also
significant is as follows:

Yatra tastu na pujyante sarvastatraphalah kriyah
A free translation of the aforesaid is reproduced below:
E
“All the actions become unproductive in a place, where they are
not treated with proper respect and dignity.”
27. Another wise man of the past had his own way of putting it:

F

Bhartr bhratr pitrijnati swasruswasuradevaraih
Bandhubhisca striyah pujyah bhusnachhadanasnaih

G A free translation of the aforesaid is as follows:
“The women are to be respected equally on a par with husbands,
brothers, fathers, relatives, in-laws and other kith and kin and
while respecting, the women gifts like ornaments, garments, etc.
should be given as token of honour.”
H
JOSEPH SHINE v. UNION OF INDIA 825
[DIPAK MISRA, CJI]

28. Yet again, the sagacity got reflected in following lines: A

Atulam yatra tattejah sarvadevasarirajam
Ekastham tadabhunnari vyaptalokatrayam tvisa B
A free translation of the aforesaid is reproduced below:
“The incomparable valour (effulgence) born from the physical
frames of all the gods, spreading the three worlds by its radiance
and combining together took the form of a woman.”
29. From the past, I travel to the present and respectfully notice C
what Lord Denning had to say about the equality of women and
their role in the society:
“A woman feels as keenly, thinks as clearly, as a man. She in her
sphere does work as useful as man does in his. She has as much
right to her freedom — to develop her personality to the full as a D
man. When she marries, she does not become the husband’s
servant but his equal partner. If his work is more important in life
of the community, her’s is more important of the family. Neither
can do without the other. Neither is above the other or under the
other. They are equals.” E
33. In Charu Khurana and others v. Union of India and
others30, speaking about the dignity of women, the Court held:-
“33. … Be it stated, dignity is the quintessential quality of a
personality and a human frame always desires to live in the
mansion of dignity, for it is a highly cherished value. Clause (j) F
has to be understood in the backdrop that India is a welfare
State and, therefore, it is the duty of the State to promote justice,
to provide equal opportunity to all citizens and see that they are
not deprived of by reasons of economic disparity. It is also the
duty of the State to frame policies so that men and women have
G
the right to adequate means of livelihood. It is also the duty of
the citizen to strive towards excellence in all spheres of individual
and collective activity so that the nation constantly rises to higher
levels of endeavour and achievement.”
30
(2015) 1 SCC 192 H
826 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 34. In Shakti Vahini v. Union of India and others31, the lis was
in a different context. The Court reproduced a passage from Joseph J.
Ellis which is also relevant for the present purpose. It reads:-
“We don’t live in a world in which there exists a single definition
of honour anymore, and it’s a fool that hangs onto the traditional
B standards and hopes that the world will come around him.”
35. In the said case, a contention was advanced that the existence
of a woman is entirely dependent on the male view of the reputation of
the family, the community and the milieu. The Court, in that context,
observed:-
C “5. …The collective behaves like a patriarchal monarch which
treats the wives, sisters and daughters subordinate, even servile
or self-sacrificing, persons moving in physical frame having no
individual autonomy, desire and identity. The concept of status is
accentuated by the male members of the community and a sense
D of masculine dominance becomes the sole governing factor of
perceptive honour.”
36. We have referred to the aforesaid as we are of the view that
there cannot be a patriarchal monarchy over the daughter or, for that
matter, husband’s monarchy over the wife. That apart, there cannot be
E a community exposition of masculine dominance.
37. Having stated about the dignity of a woman, in the context of
autonomy, desire, choice and identity, it is obligatory to refer to the recent
larger Bench decision in K.S. Puttaswamy and another v. Union of
India and others32 which, while laying down that privacy is a facet of
F Article 21 of the Constitution, lays immense stress on the dignity of an
individual. In the said judgment, it has been held:-
“108. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection
of life and liberty with dignity. Dignity as a constitutional value
finds expression in the Preamble. The constitutional vision seeks
G
the realisation of justice (social, economic and political); liberty
(of thought, expression, belief, faith and worship); equality (as a
guarantee against arbitrary treatment of individuals) and fraternity

31
(2018) 7 SCC 192
32
H (2017) 10 SCC 1
JOSEPH SHINE v. UNION OF INDIA 827
[DIPAK MISRA, CJI]

(which assures a life of dignity to every individual). These A
constitutional precepts exist in unity to facilitate a humane and
compassionate society. The individual is the focal point of the
Constitution because it is in the realisation of individual rights
that the collective well-being of the community is determined.
Human dignity is an integral part of the Constitution. Reflections
B
of dignity are found in the guarantee against arbitrariness (Article
14), the lamps of freedom (Article 19) and in the right to life and
personal liberty (Article 21).
xxx xxxx xxx
119. To live is to live with dignity. The draftsmen of the Constitution C
defined their vision of the society in which constitutional values
would be attained by emphasising, among other freedoms, liberty
and dignity. So fundamental is dignity that it permeates the core
of the rights guaranteed to the individual by Part III. Dignity is
the core which unites the fundamental rights because the
fundamental rights seek to achieve for each individual the dignity D
of existence...”
xxx xxx xxx
“298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an intrinsic E
value, human dignity is an entitlement or a constitutionally
protected interest in itself. In its instrumental facet, dignity and
freedom are inseparably inter-twined, each being a facilitative
tool to achieve the other. The ability of the individual to protect a
zone of privacy enables the realization of the full value of life
and liberty. Liberty has a broader meaning of which privacy is a F
subset. All liberties may not be exercised in privacy. Yet others
can be fulfilled only within a private space. Privacy enables the
individual to retain the autonomy of the body and mind. The
autonomy of the individual is the ability to make decisions on
vital matters of concern to life. Privacy has not been couched as G
an independent fundamental right. But that does not detract from
the constitutional protection afforded to it, once the true nature
of privacy and its relationship with those fundamental rights which
are expressly protected is understood. Privacy lies across the
spectrum of protected freedoms. The guarantee of equality is a
H
828 SUPREME COURT REPORTS [2018] 11 S.C.R.

A guarantee against arbitrary state action. It prevents the state
from discriminating between individuals. The destruction by the
state of a sanctified personal space whether of the body or of
the mind is violative of the guarantee against arbitrary state action.
Privacy of the body entitles an individual to the integrity of the
physical aspects of personhood. The intersection between one’s
B
mental integrity and privacy entitles the individual to freedom of
thought, the freedom to believe in what is right, and the freedom
of self-determination.”
xxx xxx xxx
C “525. But most important of all is the cardinal value of fraternity
which assures the dignity of the individual.359 The dignity of the
individual encompasses the right of the individual to develop to
the full extent of his potential. And this development can only be
if an individual has autonomy over fundamental personal choices
and control over dissemination of personal information which
D may be infringed through an unauthorized use of such information.
It is clear that Article 21, more than any of the other Articles in
the fundamental rights chapter, reflects each of these
constitutional values in full, and is to be read in consonance with
these values and with the international covenants that we have
E referred to. In the ultimate analysis, the fundamental right of
privacy, which has so many developing facets, can only be
developed on a case to case basis. Depending upon the particular
facet that is relied upon, either Article 21 by itself or in conjunction
with other fundamental rights would get attracted.”

F 38. In this context, we may profitably refer to National Legal
Services Authority v. Union of India and others33 wherein A.K. Sikri, J.,
in his concurring opinion, emphasizing on the concept of dignity, has
opined:-
“The basic principle of the dignity and freedom of the individual
G is common to all nations, particularly those having democratic
set up. Democracy requires us to respect and develop the free
spirit of human being which is responsible for all progress in
human history. Democracy is also a method by which we attempt
to raise the living standard of the people and to give opportunities
33
H (2014) 5 SCC 438
JOSEPH SHINE v. UNION OF INDIA 829
[DIPAK MISRA, CJI]

to every person to develop his/her personality. It is founded on A
peaceful co-existence and cooperative living. If democracy is
based on the recognition of the individuality and dignity of man,
as a fortiori we have to recognize the right of a human being to
choose his sex/gender identity which is integral his/her personality
and is one of the most basic aspect of self-determination dignity
B
and freedom. In fact, there is a growing recognition that the true
measure of development of a nation is not economic growth; it is
human dignity.”
39. Very recently, in Common Cause (A Registered Society) v.
Union of India and another34, one of us has stated:-
C
“... Human dignity is beyond definition. It may at times defy
description. To some, it may seem to be in the world of abstraction
and some may even perversely treat it as an attribute of egotism
or accentuated eccentricity. This feeling may come from the
roots of absolute cynicism. But what really matters is that life
without dignity is like a sound that is not heard. Dignity speaks, D
it has its sound, it is natural and human. It is a combination of
thought and feeling, and, as stated earlier, it deserves respect
even when the person is dead and described as a “body”.....”
And again:-
E
“The concept and value of dignity requires further elaboration
since we are treating it as an inextricable facet of right to life
that respects all human rights that a person enjoys. Life is
basically self-assertion. In the life of a person, conflict and
dilemma are expected to be normal phenomena. Oliver Wendell
Holmes, in one of his addresses, quoted a line from a Latin poet F
who had uttered the message, - Death plucks my ear and says,
Live- I am coming . That is the significance of living. But when
a patient really does not know if he/she is living till death visits
him/her and there is constant suffering without any hope of living,
should one be allowed to wait? Should she/he be cursed to die as G
life gradually ebbs out from her/his being? Should she/he live
because of innovative medical technology or, for that matter,
should he/she continue to live with the support system as people
around him/her think that science in its progressive invention
34
(2018) 5 SCC 1 H
830 SUPREME COURT REPORTS [2018] 11 S.C.R.

A may bring about an innovative method of cure? To put it differently,
should he/she be ¯guinea pig for some kind of experiment? The
answer has to be an emphatic ¯Not because such futile waiting
mars the pristine concept of life, corrodes 139 the essence of
dignity and erodes the fact of eventual choice which is pivotal to
privacy.”
B
In Mehmood Nayyar Azam v. State of Chhattisgarh and others,
a two-Judge Bench held thus:-
“1...... Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, “the reverence of
C life offers me my fundamental principle on morality”. The
aforesaid expression may appear to be an individualistic
expression of a great personality, but, when it is understood in
the complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the fundamental
perception of a thinker about the respect that life commands.
D The reverence of life is insegragably associated with the dignity
of a human being who is basically divine, not servile. A human
personality is endowed with potential infinity and it blossoms
when dignity is sustained. The sustenance of such dignity has
to be the superlative concern of every sensitive soul. The
E essence of dignity can never be treated as a momentary spark
of light or, for that matter, ‘a brief candle’, or ‘a hollow bubble’.
The spark of life gets more resplendent when man is treated
with dignity sans humiliation, for every man is expected to lead
an honourable life which is a splendid gift of “creative
intelligence”
F
40. In the said judgment, A.K. Sikri, J. reproduced a passage from
Professor Upendra Baxi’s lecture in First Justice H.R. Khanna Memorial
Lecture which reads as follows:-
“I still need to say that the idea of dignity is a metaethical one,
G that is it marks and maps a difficult terrain of what it may mean
to say being ‘human’ and remaining ‘human’, or put another
way the relationship between ‘self’, ‘others’, and ‘society’. In
this formulation the word ‘respect’ is the keyword: dignity is
respect for an individual person based on the principle of freedom
and capacity to make choices and a good or just social order is
H
JOSEPH SHINE v. UNION OF INDIA 831
[DIPAK MISRA, CJI]

one which respects dignity via assuring ‘contexts’ and ‘conditions’ A
as the ‘source of free and informed choice’. Respect for dignity
thus conceived is empowering overall and not just because it,
even if importantly, sets constraints state, law, and regulations.”
41. From the aforesaid analysis, it is discernible that the Court,
with the passage of time, has recognized the conceptual equality of woman B
and the essential dignity which a woman is entitled to have. There can
be no curtailment of the same. But, Section 497 IPC effectively does
the same by creating invidious distinctions based on gender stereotypes
which creates a dent in the individual dignity of women. Besides, the
emphasis on the element of connivance or consent of the husband
tantamounts to subordination of women. Therefore, we have no hesitation C
in holding that the same offends Article 21 of the Constitution.
42. Another aspect needs to be addressed. The question we intend
to pose is whether adultery should be treated as a criminal offence.
Even assuming that the new definition of adultery encapsules within its
scope sexual intercourse with an unmarried woman or a widow, adultery D
is basically associated with the institution of marriage. There is no denial
of the fact that marriage is treated as a social institution and regard
being had to various aspects that social history has witnessed in this
country, the Parliament has always made efforts to maintain the rights
of women. For instance, Section 498-A IPC deals with husband or E
relative of husband of a woman subjecting her to cruelty. The Parliament
has also brought in the Protection of Women from Domestic Violence
Act, 2005. This enactment protects women. It also enters into the
matrimonial sphere. The offences under the provisions of the said
enactment are different from the provision that has been conceived of
under Section 497 IPC or, for that matter, concerning bringing of adultery F
within the net of a criminal offence. There can be no shadow of doubt
that adultery can be a ground for any kind of civil wrong including
dissolution of marriage. But the pivotal question is whether it should be
treated as a criminal offence. When we say so, it is not to be understood
that there can be any kind of social licence that destroys the matrimonial G
home. It is an ideal condition when the wife and husband maintain their
loyalty. We are not commenting on any kind of ideal situation but, in
fact, focusing on whether the act of adultery should be treated as a
criminal offence. In this context, we are reminded of what Edmund
Burke, a famous thinker, had said, “a good legislation should be fit and
H
832 SUPREME COURT REPORTS [2018] 11 S.C.R.

A equitable so that it can have a right to command obedience”. Burke
would like to put it in two compartments, namely, ‘equity’ and ‘utility’. If
the principle of Burke is properly understood, it conveys that laws and
legislations are necessary to serve and promote a good life.
43. Dealing with the concept of crime, it has been stated in
B “Principles of Criminal Liability”35 thus :-
“1. Definition of crime.—There is no satisfactory definition of
crime which will embrace the many acts and omissions which
are criminal, and which will at the same time exclude all those
acts and omissions which are not. Ordinarily a crime is a wrong
C which affects the security or well-being of the public generally
so that the public has an interest in its suppression. A crime is
frequently a moral wrong in that it amounts to conduct which is
inimical to the general moral sense of the community. It is,
however, possible to instance many crimes which exhibit neither
of the foregoing characteristics. An act may be made criminal
D by Parliament simply because it is criminal process, rather than
civil, which offers the more effective means of controlling the
conduct in question.”
44. In Kenny’s Outlines of Criminal Law, 19th Edn., 1966 by
J.W. Cecil Turner, it has been stated that:-
E
“There is indeed no fundamental or inherent difference between
a crime and a tort. Any conduct which harms an individual to
some extent harms society, since society is made up of individuals;
and therefore although it is true to say of crime that is an offence
against society, this does not distinguish crime from tort. The
F difference is one of degree only, and the early history of the
common law shows how words which now suggest a real
distinction began rather as symbols of emotion than as terms of
scientific classification.”
And again:-
G “So long as crimes continue (as would seem inevitable) to be
created by government policy the nature of crime will elude true
definition. Nevertheless it is a broadly accurate description to
say that nearly every instance of crime presents all of the three
following characteristics: (1) that it is a harm, brought about by
H 35
Halsbury’s Laws of England, 4th Edn., Vol. 11 p.11,
JOSEPH SHINE v. UNION OF INDIA 833
[DIPAK MISRA, CJI]

human conduct, which the sovereign power in the State desires A
to prevent; (2) that among the measures of prevention selected
is the threat of punishment; (3) that legal proceedings of a special
kind are employed to decide whether the person accused did in
fact cause the harm, and is, according to law, to be held legally
punishable for doing so.”
B
45. Stephen defines a “crime” thus:-
“A crime is an unlawful act or default which is an offence against
the public, rendering the person guilty of such act or default liable
to legal punishment. The process by which such person is
punished for the unlawful act or default is carried on in the name C
of the Crown; although any private person, in the absence of
statutory provision to the contrary, may commence a criminal
prosecution. Criminal proceedings were formerly called pleas of
the Crown, because the King, in whom centres the majesty of
the whole community, is supposed by the law to be the person
injured by every infraction of the public rights belonging to that D
community. Wherefore he is, in all cases, the proper prosecutor
for every public offence.”
46. Blackstone, while discussing the general nature of crime, has
defined crime thus:-
E
“A crime, or misdemeanour, is an act committed or omitted, in
violation of a public law, either forbidding or commanding it. This
general definition comprehends both crimes and misdemeanours;
which, properly speaking, are mere synonym terms: though, in
common usage, the word “crimes” is made to denote such
offences as are of a deeper and more atrocious dye; while smaller F
faults, and omissions of less consequence, are comprised under
the gentler name of “misdemeanours” only.”
47. In this regard, we may reproduce a couple of paragraphs from
Central Inland Water Transport Corporation Limited and another
v. Brojo Nath Ganguly36. They read as under:- G
“25. The story of mankind is punctuated by progress and
retrogression. Empires have risen and crashed into the dust of
history. Civilizations have nourished, reached their peak and
36
(1986) 3 SCC 156 H
834 SUPREME COURT REPORTS [2018] 11 S.C.R.

A passed away. In the year 1625, Carew, C.J., while delivering the
opinion of the House of Lords in Re the Earldom of Oxford in a
dispute relating to the descent of that Earldom, said:
“... and yet time hath his revolution, there must be a period and
an end of all temporal things, finis rerum, an end of names and
B dignities, and whatsoever is terrene....”
The cycle of change and experiment, rise and fall, growth and
decay, and of progress and retrogression recurs endlessly in the
history of man and the history of civilization. T.S. Eliot in the
First Chorus from “The Rock” said:
C O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.”
26. The law exists to serve the needs of the society which is
D governed by it. If the law is to play its allotted role of serving the
needs of the society, it must reflect the ideas and ideologies of
that society. It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As the society
changes, the law cannot remain immutable. The early nineteenth
E century essayist and wit, Sydney Smith, said: “When I hear any
man talk of an unalterable law, I am convinced that he is an
unalterable fool.” The law must, therefore, in a changing
society march in tune with the changed ideas and ideologies.”
48. Reproducing the same, the Court in Common Cause (A
F Registered Society) (supra), has observed :-
“160. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in
consonance with the developing concepts. The need of the
present has to be served with the interpretative process of law.
However, it is to be seen how much strength and sanction can
G
be drawn from the Constitution to consummate the changing
ideology and convert it into a reality. The immediate needs are
required to be addressed through the process of interpretation
by the Court unless the same totally falls outside the constitutional
framework or the constitutional interpretation fails to recognize
H such dynamism.”
JOSEPH SHINE v. UNION OF INDIA 835
[DIPAK MISRA, CJI]

49. We have referred to the aforesaid theories and authorities to A
understand whether adultery that enters into the matrimonial realm should
be treated as a criminal offence. There can be many a situation and we
do not intend to get into the same. Suffice it to say, it is different from an
offence committed under Section 498-A or any violation of the Protection
of Women from Domestic Violence Act, 2005 or, for that matter, the
B
protection conceived of under Section 125 of the Code of Criminal
Procedure or Sections 306 or 304B or 494 IPC. These offences are
meant to sub-serve various other purposes relating to a matrimonial
relationship and extinction of life of a married woman during subsistence
of marriage. Treating adultery an offence, we are disposed to think,
would tantamount to the State entering into a real private realm. Under C
the existing provision, the husband is treated as an aggrieved person and
the wife is ignored as a victim. Presently, the provision is reflective of a
tripartite labyrinth. A situation may be conceived of where equality of
status and the right to file a case may be conferred on the wife. In
either situation, the whole scenario is extremely private. It stands in
D
contradistinction to the demand for dowry, domestic violence, sending
someone to jail for non-grant of maintenance or filing a complaint for
second marriage. Adultery stands on a different footing from the aforesaid
offences. We are absolutely conscious that the Parliament has the law
making power. We make it very clear that we are not making law or
legislating but only stating that a particular act, i.e., adultery does not fit E
into the concept of a crime. We may repeat at the cost of repetition that
if it is treated as a crime, there would be immense intrusion into the
extreme privacy of the matrimonial sphere. It is better to be left as a
ground for divorce. For any other purpose as the Parliament has perceived
or may, at any time, perceive, to treat it as a criminal offence will offend
F
the two facets of Article 21 of the Constitution, namely, dignity of husband
and wife, as the case may be, and the privacy attached to a relationship
between the two. Let it be clearly stated, by no stretch of imagination,
one can say, that Section 498-A or any other provision, as mentioned
hereinbefore, also enters into the private realm of matrimonial relationship.
In case of the said offences, there is no third party involved. It is the G
husband and his relatives. There has been correct imposition by law not
to demand dowry or to treat women with cruelty so as to compel her to
commit suicide. The said activities deserve to be punished and the law
has rightly provided so.
H
836 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 50. In this regard, we may also note how the extramarital
relationship cannot be treated as an act for commission of an offence
under Section 306 IPC. In Pinakin Mahipatray Rawal v. State of
Gujarat37, the Court has held :-
“27. Section 306 refers to abetment of suicide which says that
B if any person commits suicide, whoever abets the commission of
such suicide, shall be punished with imprisonment for a term
which may extend to 10 years and shall also be liable to fine.
The action for committing suicide is also on account of mental
disturbance caused by mental and physical cruelty. To constitute
an offence under Section 306, the prosecution has to establish
C that a person has committed suicide and the suicide was abetted
by the accused. The prosecution has to establish beyond
reasonable doubt that the deceased committed suicide and
the accused abetted the commission of suicide. But for the
alleged extra-marital relationship, which if proved, could
D be illegal and immoral, nothing has been brought out by the
prosecution to show that the accused had provoked, incited
or induced the wife to commit suicide.”
[Emphasis added]
51. In the context of Section 498-A, the Court, in Ghusabhai
E Raisangbhai Chorasiya v. State of Gujarat38, has opined that even if
the illicit relationship is proven, unless some other acceptable evidence
is brought on record to establish such high degree of mental cruelty, the
Explanation (a) to Section 498-A IPC, which includes cruelty to drive
the woman to commit suicide, would not be attracted. The relevant
F passage from the said authority is extracted below :-
“21. …True it is, there is some evidence about the illicit
relationship and even if the same is proven, we are of the
considered opinion that cruelty, as envisaged under the first limb
of Section 498-A IPC would not get attracted. It would be difficult
G to hold that the mental cruelty was of such a degree that it would
drive the wife to commit suicide. Mere extra-marital relationship,
even if proved, would be illegal and immoral, as has been said in
Pinakin Mahipatray Rawal, but it would take a different
character if the prosecution brings some evidence on record to
37
(2013) 10 SCC 48
H 38
(2015) 11 SCC 753
JOSEPH SHINE v. UNION OF INDIA 837
[DIPAK MISRA, CJI]

show that the accused had conducted in such a manner to drive A
the wife to commit suicide. In the instant case, the accused may
have been involved in an illicit relationship with Appellant 4, but
in the absence of some other acceptable evidence on record
that can establish such high degree of mental cruelty, the
Explanation to Section 498-A IPC which includes cruelty to drive
B
a woman to commit suicide, would not be attracted.”
[Emphasis added]
52. The purpose of referring to the aforesaid authorities is to
highlight how adultery has not been granted separate exclusive space in
the context of Sections 306 and 498-A IPC. C
53. In case of adultery, the law expects the parties to remain loyal
and maintain fidelity throughout and also makes the adulterer the culprit.
This expectation by law is a command which gets into the core of privacy.
That apart, it is a discriminatory command and also a socio-moral one.
Two individuals may part on the said ground but to attach criminality to D
the same is inapposite.
54. We may also usefully note here that adultery as a crime is no
more prevalent in People’s Republic of China, Japan, Australia, Brazil
and many western European countries. The diversity of culture in those
countries can be judicially taken note of. Non-criminalisation of adultery, E
apart from what we have stated hereinabove, can be proved from certain
other facets. When the parties to a marriage lose their moral commitment
of the relationship, it creates a dent in the marriage and it will depend
upon the parties how they deal with the situation. Some may exonerate
and live together and some may seek divorce. It is absolutely a matter
of privacy at its pinnacle. The theories of punishment, whether deterrent F
or reformative, would not save the situation. A punishment is unlikely to
establish commitment, if punishment is meted out to either of them or a
third party. Adultery, in certain situations, may not be the cause of an
unhappy marriage. It can be the result. It is difficult to conceive of such
situations in absolute terms. The issue that requires to be determined is G
whether the said ‘act’ should be made a criminal offence especially
when on certain occasions, it can be the cause and in certain situations,
it can be the result. If the act is treated as an offence and punishment is
provided, it would tantamount to punishing people who are unhappy in
marital relationships and any law that would make adultery a crime would
H
838 SUPREME COURT REPORTS [2018] 11 S.C.R.

A have to punish indiscriminately both the persons whose marriages have
been broken down as well as those persons whose marriages are not.
A law punishing adultery as a crime cannot make distinction between
these two types of marriages. It is bound to become a law which would
fall within the sphere of manifest arbitrariness.
B 55. In this regard, another aspect deserves to be noted. The
jurisprudence in England, which to a large extent, is adopted by this
country has never regarded adultery as a crime except for a period of
ten years in the reign of Puritanical Oliver Cromwell. As we see the
international perspective, most of the countries have abolished adultery
as a crime. We have already ascribed when such an act is treated as a
C crime and how it faces the frown of Articles 14 and 21 of the Constitution.
Thinking of adultery from the point of view of criminality would be a
retrograde step. This Court has travelled on the path of transformative
constitutionalism and, therefore, it is absolutely inappropriate to sit in a
time machine to a different era where the machine moves on the path of
D regression. Hence, to treat adultery as a crime would be unwarranted in
law.
56. As we have held that Section 497 IPC is unconstitutional and
adultery should not be treated as an offence, it is appropriate to declare
Section 198 CrPC which deals with the procedure for filing a complaint
E in relation to the offence of adultery as unconstitutional. When the
substantive provision goes, the procedural provision has to pave the same
path.
57. In view of the foregoing analysis, the decisions in Sowmithri
Vishnu (supra) and V. Revathi (supra) stand overruled and any other
F judgment following precedents also stands overruled.
58. Consequently, the writ petition is allowed to the extent indicated
hereinbefore.
R. F. NARIMAN, J. (Concurring) 1. What is before us in this
writ petition is the constitutional validity of an archaic provision of the
G Indian Penal Code (“IPC”), namely, Section 497, which makes adultery
a crime. Section 497 appears in Chapter XX of the IPC, which deals
with offences relating to marriage. Section 497 reads as follows:-
“497. Adultery.—Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the
H wife of another man, without the consent or connivance of that
JOSEPH SHINE v. UNION OF INDIA 839
[R. F. NARIMAN, J.]

man, such sexual intercourse not amounting to the offence of A
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 offence of bigamy, which is contained in Section 494 in the same B
Chapter, is punishable with a longer jail term which may extend to 7
years, but in this case, the husband or the wife, as the case may be, is
liable to be prosecuted and convicted. Section 494 reads as follows:
“494. Marrying again during lifetime of husband or wife.—
Whoever, having a husband or wife living, marries in any case in C
which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
Exception.—This section does not extend to any person whose D
marriage with such husband or wife has been declared void by a
Court of competent jurisdiction,
nor to any person who contracts a marriage during the life of a
former husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continually absent from E
such person for the space of seven years, and shall not have
been heard of by such person as being alive within that time
provided the person contracting such subsequent marriage shall,
before such marriage takes place, inform the person with whom
such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.” F
It will be noticed that the crime of adultery punishes only a third-party
male offender as against the crime of bigamy, which punishes the bigamist,
be it a man or a woman. What is therefore punished as ‘adultery’ is not
‘adultery’ per se but the proprietary interest of a married man in his
wife. G
Almost all ancient religions/civilizations punished the sin of adultery. In
one of the oldest, namely, in Hammurabi’s Code, death by drowning was
prescribed for the sin of adultery, be it either by the husband or the wife.
In Roman law, it was not a crime against the wife for a husband to have
sex with a slave or an unmarried woman. The Roman lex Iulia de H
840 SUPREME COURT REPORTS [2018] 11 S.C.R.

A adulteriis coercendis of 17 B.C., properly so named after Emperor
Augustus’ daughter, Julia, punished Julia for adultery with banishment.
Consequently, in the case of adulterers generally, both guilty parties were
sent to be punished on different islands, and part of their property was
confiscated.
B 2. In Judaism, which again is an ancient religion, the Ten
Commandments delivered by the Lord to Moses on Mount Sinai contains
the Seventh Commandment – “Thou shalt not commit adultery” – set
out in the book of Exodus in the Old Testament.1 Equally, since the
wages of sin is death, the book of Leviticus in the Old Testament
prescribes the death penalty for the adulterer as well as the adulteress. 2
C
3. In Christianity, we find adultery being condemned as immoral
and a sin for both men and women, as is evidenced by St. Paul’s letter to
the Corinthians.3 Jesus himself stated that a man incurs sin the moment
he looks at a woman with lustful intent.4 However, when it came to
punishing a woman for adultery, by stoning to death in accordance with
D the ancient Jewish law, Jesus uttered the famous words, “let him who
has not sinned, cast the first stone.”5
4. In this country as well, in the Manusmriti, Chapters 4.134 6 and
8.3527 prescribes punishment for those who are addicted to intercourse
with wives of other men by punishments which cause terror, followed
E by banishment. The Dharmasutras speak with different voices. In the
Apastamba Dharmasutra, adultery is punishable as a crime, the
punishment depending upon the class or caste of the man and the woman.8
However, in the Gautama Dharmasutra, if a man commits adultery, he
should observe a life of chastity for two years; and if he does so with the
F wife of a vedic scholar, for three years.9
5. In Islam, in An-Nur, namely, Chapter 24 of the Qur’an, Verses
2 and 6 to 9 read as follows:
1
Exodus 20:14 (King James Version).
2
Leviticus 20:10 (King James Version).
G 3
1 Corinthians 6:9-10 (King James Version).
4
Matthew 5:27-28 (King James Version).
5
John, 8:7 (English Standard Version).
6
THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).
7
Id., 315.
8
DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA
70-71 (Translation by Patrick Olivelle, Oxford University Press 1999).
H 9
Id., 116-117.
JOSEPH SHINE v. UNION OF INDIA 841
[R. F. NARIMAN, J.]

“2. The adulteress and the adulterer, flog each of them (with) a A
hundred stripes, and let not pity for them detain you from
obedience to Allah, if you believe in Allah and the Last Day, and
let a party of believers witness their chastisement.”10
xxx xxx xxx
“6. And those who accuse their wives and have no witnesses B
except themselves, let one of them testify four times, bearing
Allah to witness, that he is of those who speak the truth.
7. And the fifth (time) that the curse of Allah be on him, if he
is of those who lie.
8. And it shall avert the chastisement from her, if she testify C
four times, bearing Allah to witness, that he is of those who lie.
9. And the fifth (time) that the wrath of Allah to be on her, if
he is of those who speak the truth.”11
What is interesting to note is that if there are no witnesses other than the
husband or the wife, and the husband testifies four times that his wife D
has committed adultery, which is met by the wife testifying four times
that she has not, then earthly punishment is averted. The wrath of Allah
alone will be on the head of he or she who has given false testimony –
which wrath will be felt only in life after death in the next world.
6. In sixth-century Anglo-Saxon England, the law created E
“elaborate tables of composition” which the offended husband could
accept in lieu of blood vengeance. These tables were schemes for
payment of compensation depending upon the degree of harm caused to
the cuckolded husband. However, as Christianity spread in England,
adultery became morally wrong and therefore, a sin, as well as a wrong
against the husband. Post 1066, the Normans who took over, viewed F
adultery not as a crime against the State, but rather as an ecclesiastical
offence dealt with by the Church. The common law of England prescribed
an action in tort for loss of consortium based on the property interest a
husband had in his wife. Thus, the action for conversation, which is
compensation or damages, usually represented a first step in obtaining G
divorce in medieval England. In fact, adultery was the only ground for
divorce in seventeenth-century England, which had to be granted only
10
THE KORAN (AL–QUR’AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION
BY MOHAMED A. ‘ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks,
2018).
11
Id. H
842 SUPREME COURT REPORTS [2018] 11 S.C.R.

A by Parliament. Interestingly enough, it was only after King Charles I
was beheaded in 1649, that adultery became a capital offence in
Cromwell’s Puritanical England in the year 1650, which was nullified as
soon as King Charles II came back in what was known as the ‘restoration
of the monarchy’. It will be seen therefore, that in England, except for
an eleven-year period when England was ruled by the Puritans, adultery
B
was never considered to be a criminal offence. Adultery was only a tort
for which damages were payable to the husband, given his proprietary
interest in his wife.12 This tort is adverted to by a 1904 judgment of the
Supreme Court of the United States in Charles A. Tinker v. Frederick
L. Colwell, 193 US 473 (1904), as follows:
C “…… We think the authorities show the husband had certain
personal and exclusive rights with regard to the person of his
wife which are interfered with and invaded by criminal
conversation with her; that such an act on the part of another
man constitutes an assault even when, as is almost universally
D the case as proved, the wife in fact consents to the act, because
the wife is in law incapable of giving any consent to affect the
husband’s rights as against the wrongdoer, and that an assault of
this nature may properly be described as an injury to the personal
rights and property of the husband, which is both malicious and
willful……
E
The assault vi et armis is a fiction of law, assumed at first, in
early times, to give jurisdiction of the cause of action as a trespass,
to the courts, which then proceeded to permit the recovery of
damages by the husband for his wounded feelings and honour,
the defilement of the marriage bed, and for the doubt thrown
F upon the legitimacy of children.”13
“We think that it is made clear by these references to a few of
the many cases on this subject that the cause of action by the
husband is based upon the idea that the act of the defendant is a
violation of the marital rights of the husband in the person of his
G wife, and so the act of the defendant is an injury to the person
and also to the property rights of the husband.”14
12
Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics:
Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23
HARVARD WOMEN’S LAW JOURNAL 1, 21-22 (2000) [“Linda Fitts Mischler”].
13
Tinker v. Colwell, 193 U.S. 473, 481 (1904).
H 14
Id., 485.
JOSEPH SHINE v. UNION OF INDIA 843
[R. F. NARIMAN, J.]

To similar effect is the judgment in Pritchard v. Pritchard and Sims, A
[1966] 3 All E.R. 601, which reconfirmed the origins of adultery or
criminal conversation as under:
“In 1857, when marriage in England was still a union for life
which could be broken only by private Act of Parliament, there
existed side by side under the common law three distinct causes B
of action available to a husband whose rights in his wife were
violated by a third party, who enticed her away, or who harboured
her or who committed adultery with her. …… In the action for
adultery known as criminal conversation, which dates from before
the time of BRACTON, and consequently lay originally in
trespass, the act of adultery itself was the cause of action and C
the damages punitive at large. It lay whether the adultery resulted
in the husband’s losing his wife’s society and services or not.
All three causes of action were based on the recognition accorded
by the common law to the husband’s propriety interest in the
person of his wife, her services and earnings, and in the property D
which would have been hers had she been feme sole.”15
7. In England, Section LIX of the Divorce and Matrimonial Causes
Act, 1857 abolished the common law action for criminal conversation
while retaining, by Section XXXIII of the same Act, the power to award
the husband damages for adultery committed by the wife. This position E
continued right till 1923, when the Matrimonial Causes Act, 1923 made
adultery a ground for divorce available to both spouses instead of only
the husband. The right of a husband to claim damages for adultery was
abolished very recently by the Law Reforms (Miscellaneous Provisions)
Act, 1970.16
F
8. In the United States, however, Puritans who went to make a
living in the American colonies, carried with them Cromwell’s criminal
law, thereby making adultery a capital offence. Strangely enough, this
still continues in some of the States in the United States. The American
Law Institute, however, has dropped the crime of adultery from its Model
Penal Code as adultery statutes are in general vague, archaic, and sexist. G
None of the old reasons in support of such statutes, namely, the controlling
of disease, the preventing of illegitimacy, and preserving the traditional
family continue to exist as of today. It was also found that criminal adultery
15
[1966] 3 All E.R. 601, 607.
16
Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970. H
844 SUPREME COURT REPORTS [2018] 11 S.C.R.

A statutes were rarely enforced in the United States and were, therefore,
referred to as “dead letter statutes”. This, plus the potential abuses from
such statutes continuing on the statute book, such as extortion, blackmail,
coercion etc. were stated to be reasons for removing adultery as a crime
in the Model Penal Code.17
B 9. When we come to India, Lord Macaulay, in his draft Penal
Code, which was submitted to the Law Commissioners, refused to make
adultery a penal offence. He reasoned as follows:
“The following positions we consider as fully established: first,
that the existing laws for the punishment of adultery are altogether
C inefficacious for the purpose of preventing injured husbands of
the higher classes from taking the law into their own hands;
secondly, that scarcely any native of the higher classes ever has
recourse to the Courts of law in a case of adultery for redress
against either his wife, or her gallant; thirdly, that the husbands
who have recourse in cases of adultery to the Courts of law are
D generally poor men whose wives have run away, that these
husbands seldom have any delicate feelings about the intrigue,
but think themselves injured by the elopement, that they consider
their wives as useful members of their small household, that they
generally complain not of the wound given to their affections,
E not of the stain on their honor, but of the loss of a menial whom
they cannot easily replace, and that generally their principal object
is that the woman may be sent back. The fiction by which
seduction is made the subject of an action in the English Courts
is, it seems, the real gist of most proceedings for adultery in the
Mofussil. The essence of the injury is considered by the sufferer
F as lying in the “per quod servitium amisit.” Where the complainant
does not ask to have his wife again, he generally demands to be
reimbursed for the expenses of his marriage.
These things being established it seems to us that no advantage
is to be expected from providing a punishment for adultery. The
G population seems to be divided into two classes- those whom
neither the existing punishment nor any punishment which we
should feel ourselves justified in proposing will satisfy, and those
who consider the injury produced by adultery as one for which a
pecuniary compensation will sufficiently atone. Those whose
H 17
Linda Fitts Mischler, supra n. 12, 23-25.
JOSEPH SHINE v. UNION OF INDIA 845
[R. F. NARIMAN, J.]

feelings of honor are painfully affected by the infidelity of their A
wives will not apply to the tribunals at all. Those whose feelings
are less delicate will be satisfied by a payment of money. Under
such circumstances we think it best to treat adultery merely as a
civil injury.”
xxx xxx xxx B
“These arguments have not satisfied us that adultery ought to be
made punishable by law. We cannot admit that a Penal code is
by any means to be considered as a body of ethics, that the
legislature ought to punish acts merely because those acts are
immoral, or that because an act is not punished at all it follows C
that the legislature considers that act as innocent. Many things
which are not punishable are morally worse than many things
which are punishable. The man who treats a generous benefactor
with gross in gratitude and insolence, deserves more severe
reprehension than the man who aims a blow in a passion, or
breaks a window in a frolic. Yet we have punishments for assault D
and mischief, and none for ingratitude. The rich man who refuses
a mouthful of rice to save a fellow creature from death may be
a far worse man than the starving wretch who snatches and
devours the rice. Yet we punish the latter for theft, and we do
not punish the former for hard-heartedness.” E
xxx xxx xxx
“There is yet another consideration which we cannot wholly leave
out of sight. Though we well know that the dearest interests of
the human race are closely connected with the chastity of women,
and the sacredness of the nuptial contract, we cannot but feel F
that there are some peculiarities in the state of society in this
country which may well lead a humane man to pause before he
determines to punish the infidelity of wives. The condition of the
women of this country is unhappily very different from that of
the women of England and France. They are married while still G
children. They are often neglected for other wives while still
young. They share the attentions of a husband with several rivals.
To make laws for punishing the inconstancy of the wife while
the law admits the privilege of the husband to fill his zenana with
women, is a course which we are most reluctant to adopt. We
are not so visionary as to think of attacking by law an evil so H
846 SUPREME COURT REPORTS [2018] 11 S.C.R.

A deeply rooted in the manners of the people of this country as
polygamy. We leave it to the slow, but we trust the certain
operation of education and of time. But while it exists, while it
continues to produce its never failing effects on the happiness
and respectability of women, we are not inclined to throw into a
scale already too much depressed the additional weight of the
B
penal law. We have given the reasons which lead us to believe
that any enactment on this subject would be nugatory. And we
are inclined to think that if not nugatory it would be oppressive.
It would strengthen hands already too strong. It would weaken a
class already too weak. It will be time enough to guard the
C matrimonial contract by penal sanctions when that contract
becomes just, reasonable, and mutually beneficial.”18
10. However, when the Court Commissioners reviewed the Penal
Code, they felt that it was important that adultery be made an offence.
The reasons for so doing are set out as follows:
D “353. Having given mature consideration to the subject, we have,
after some hesitation, come to the conclusion that it is not
advisable to exclude this offence from the Code. We think the
reasons for continuing to treat it as a subject for the cognizance
of the criminal courts preponderate. We conceive that Colonel
E Sleeman is probably right in regarding the difficulty of proving
the offence according to the requirement of the Mohammedan
law of evidence, which demands an amount of positive proof
that is scarcely ever to be had in such a case, as having some
effect in deterring the Natives from prosecuting adulterers in
our courts, although the Regulations allow of a conviction upon
F strong presumption arising from circumstantial evidence. This
difficulty, if it has had the effect supposed, will be removed, should
the Code be adopted. Colonel Sleeman’s representation of the
actual consequences of the present system, which, while it
recognizes the offence, renders it, in the opinion of the Natives,
G almost impossible to bring an offender to justice, it will be observed,
coincides with and confirms practically Mr. Livingstone’s view
of the result to be expected when the law refuses to punish this
18
A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND
OF THE GOVERNOR GENERAL OF I NDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal
Military Orphan Press, 1837).
H
JOSEPH SHINE v. UNION OF INDIA 847
[R. F. NARIMAN, J.]

offence. The injured party will do it for himself; great crimes, A
assassinations, poisonings, will be the consequence. The law here
does not refuse, but it fails to punish the offence, says Colonel
Sleeman, and poisonings are the consequence.
354. Colonel Sleeman thinks that the Commissioners have
wrongly assumed that it is the lenity of the existing law that it is B
complained of by the Natives, and believes that they would be
satisfied with a less punishment for the offence than the present
law allows; viz. imprisonment for seven years, if it were certain
to follow the offender. He proposes that the punishment of a
man “convicted of seducing the wife of another” shall be
imprisonment which may extend to seven years, or a fine payable C
to the husband or both imprisonment and fine. The punishment
of a married woman “convicted of adultery” he would limit to
imprisonment for two years. We are not aware whether or not
he intends the difference in the terms used to be significant of a
difference in the nature of the proof against the man and the D
woman respectively.
355. While we think that the offence of adultery ought not to be
omitted from the Code, we would limit its cognizance to adultery
committed with a married woman, and considering that there is
much weight in the last remark in Note Q, regarding the condition E
of a women of this country, in deference to it we would render
the male offender alone liable to punishment. We would, however,
put the parties accused of adultery on trial together, and empower
the Court, in the event of their conviction, to pronounce a decree
of divorce against the guilty woman, if the husband sues for it, at
the same time that her paramour is sentenced to punishment by F
imprisonment or fine. By Mr. Livingstone’s Code, the woman
forfeits her “matrimonial gains”, but is not liable to other
punishment.
356. We would adopt Colonel Sleeman’s suggestion as to the
punishment of the male offender, limiting it to imprisonment not G
exceeding five years, instead of seven years allowed at present,
and sanctioning the imposition of a fine payable to the husband
as an alternative, or in addition.
357. The punishment prescribed by the Code of Louisiana is
imprisonment not more than six months, or fine not exceeding H
848 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 2,000 dollars, or both. By the French Code, the maximum term
of imprisonment is two years, with fine in addition, which may
amount to 2,000 francs.
358. If the offence of adultery is admitted into the Penal Code,
there should be a provision in the Code of Procedure to restrict
B the right of prosecuting to the injured husband, agreeably to
Section 2, Act II of 1845.”19
(emphasis supplied)
These are some of the reasons that led to the enactment of Section 497,
IPC.
C 11. At this stage, it is important to note that by Section 199 of the
Code of Criminal Procedure, 1898, it was only the husband who was to
be deemed to be aggrieved by an offence punishable under Section 497,
IPC. Thus, Section 199 stated:
“199. Prosecution for adultery or enticing a married
D woman.— No Court shall take cognizance of an offence under
section 497 or section 498 of the Indian Penal Code (XLV of
1860), except upon a complaint made by the husband of the
woman, or, in his absence, by some person who had care of
such woman on his behalf at the time when such offence was
committed.”
E
12.Even when this Code was replaced by the Code of Criminal
Procedure (“CrPC”), 1973, Section 198 of the CrPC, 1973 continued
the same provision with a proviso 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
F complaint on his behalf. The said Section reads as follows:
“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:
G
Provided that—
(a) where such person is under the age of eighteen years, or is
an idiot or a lunatic, or is from sickness or infirmity unable to
19
COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill,
H East India House, 1847).
JOSEPH SHINE v. UNION OF INDIA 849
[R. F. NARIMAN, J.]

make a complaint, or is a woman who, according to the local A
customs and manners, ought not to be compelled to appear in
public, some other person may, with the leave of the Court,
make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any
of the Armed Forces of the Union under conditions which are B
certified by his Commanding Officer as precluding him from
obtaining leave of absence to enable him to make a complaint
in person, some other person authorised by the husband in
accordance with the provisions of sub-section (4) may make a
complaint on his behalf;
C
(c) where the person aggrieved by an offence punishable under
Section 494 or Section 495 of the Indian Penal Code (45 of
1860) is the wife, complaint may be made on her behalf by her
father, mother, brother, sister, son or daughter or by her father’s
or mother’s brother or sister, or, with the leave of the Court, by
any other person related to her by blood, marriage or adoption. D

(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:
E
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.
(3) When in any case falling under clause (a) of the proviso to F
sub-section (1), the complaint is sought to be made on behalf of
a person under the age of eighteen years or of a lunatic by a
person who has not been appointed or declared by a competent
authority to be the guardian of the person of the minor or lunatic,
and the Court is satisfied that there is a guardian so appointed or
declared, the Court shall, before granting the application for leave, G
cause notice to be given to such guardian and give him a
reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to
sub-section (1), shall be in writing, shall be signed or otherwise
attested by the husband, shall contain a statement to the effect H
850 SUPREME COURT REPORTS [2018] 11 S.C.R.

A that he has been informed of the allegations upon which the
complaint is to be founded, shall be countersigned by his
Commanding Officer, and shall be accompanied by a certificate
signed by that Officer to the effect that leave of absence for the
purpose of making a complaint in person cannot for the time
being be granted to the husband.
B
(5) Any document purporting to be such an authorisation and
complying with the provisions of sub-section (4), and any
document purporting to be a certificate required by that sub-
section shall, unless the contrary is proved, be presumed to be
genuine and shall be received in evidence.
C (6) No Court shall take cognizance of an offence under Section
376 of the Indian Penal Code (45 of 1860), where such offence
consists of sexual intercourse by a man with his own wife, the
wife being under eighteen years of age, if more than one year
has elapsed from the date of the commission of the offence.
D (7) The provisions of this section apply to the abetment of, or
attempt to commit, an offence as they apply to the offence.”
At this stage, it is important to advert to some of the judgments of the
High Courts and our Court. In Yusuf Abdul Aziz v. State, 1952 ILR
Bom 449, a Division Bench of the Bombay High Court, consisting of
E M.C. Chagla, C.J. and P.B. Gajendragadkar, J. held that Section 497 of
the IPC did not contravene Articles 14 and 15 of the Constitution.
However, in an instructive passage, the learned Chief Justice stated:
“…… Mr. Peerbhoy is right when he says that the underlying
idea of Section 497 is that wives are properties of their husbands.
F The very fact that this offence is only cognizable with the consent
of the husband emphasises that point of view. It may be argued
that Section 497 should not find a place in any modern Code of
law. Days are past, we hope, when women were looked upon as
property by their husbands. But that is an argument more in
favour of doing away with Section 497 altogether.”20
G
An appeal to this Court in Yusuf Abdul Aziz v. State of Bombay, 1954
SCR 930, (“Yusuf Abdul Aziz”), met with the same result.
This Court, through Vivian Bose, J., held that the last part of Section
497, which states that the wife shall not be punishable as an abettor of
20
H 1952 ILR Bombay 449, 454.
JOSEPH SHINE v. UNION OF INDIA 851
[R. F. NARIMAN, J.]

the offence of adultery, does not offend Articles 14 and 15 in view of the A
saving provision contained in Article 15(3), being a special provision made
in favour of women.
This is an instance of Homer nodding. Apart from a limited ratio based
upon a limited argument, the judgment applies a constitutional provision
which is obviously inapplicable as Article 15(3), which states that, “nothing B
in this article shall prevent the State from making a special provision for
women”, would refer to the “State” as either Parliament or the State
Legislatures or the Executive Government of the Centre or the States,
set up under the Constitution after it has come into force. Section 497 is,
in constitutional language, an “existing law” which continues, by virtue
of Article 372(1), to apply, and could not, therefore, be said to be a law C
made by the “State”, meaning any of the entities referred to above.
13. We have noticed a judgment of the Division Bench of the
Bombay High Court in Dattatraya Motiram More v. State of Bombay,
AIR 1953 Bom 311, in which the Division Bench turned down a
submission that Article 15(3) is confined to laws made after the D
Constitution of India comes into force and would also apply to existing
law thus:
“8. An argument was advanced by Mr. Patel that Art. 15(3)
only applies to future legislation and that as far as all laws in
force before the commencement of the Constitution were E
concerned, those laws can only be tested by Art. 15(1) and not
by Art. 15(1) read with Art. 15(3). Mr. Patel contends that Art.
15(3) permits the State in future to make a special provision for
women and children, but to the extent the laws in force are
concerned Art. 15(1) applies, and if the laws in force are F
inconsistent with Art. 15(1), those laws must be held to be void.
Turning to Art. 13(1), it provides:
“All laws in force in the territory of India immediately before
the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent G
of such inconsistency, be void.”
Therefore, before a law in force can be declared to be void it
must be found to be inconsistent with one of the provisions of
Part III which deals with Fundamental Rights, and the
fundamental right which is secured to the citizen under Art. 15 is
H
852 SUPREME COURT REPORTS [2018] 11 S.C.R.

A not the unlimited right under Art. 15(1) but the right under Art.
15(1) qualified by Art. 15(3). It is impossible to argue that the
Constitution did not permit laws to have special provision for
women if the laws were passed before the Constitution came
into force, but permitted the Legislature to pass laws in favour
of women after the Constitution was enacted. If a law
B
discriminating in favour of women is opposed to the fundamental
rights of citizens, there is no reason why such law should continue
to remain on the statute book. The whole scheme of Art. 13 is to
make laws, which are inconsistent with Part III, void, not only if
they were in force before the commencement of the Constitution,
C but also if they were enacted after the Constitution came into
force. Mr. Patel relies on the various provisos to Art. 19 and he
says that in all those provisos special mention is made to existing
laws and also to the State making laws in future. Now, the scheme
of Art. 19 is different from the scheme of Art. 15. Provisos to
Art. 19 in terms deal with law whether existing or to be made in
D
future by the State, whereas Art. 15(3) does not merely deal
with laws but deals generally with any special provision for women
and children, and therefore it was not necessary in Art. 15(3) to
mention both existing laws and laws to be made in future. But
the exception made to Art. 15(1) by Art. 15(3) is an exception
E which applies both to existing laws and to laws which the State
may make in future.”
14. We are of the view that this paragraph does not represent the
law correctly. In fact, Article 19(2)-(6) clearly refers to “existing law”
as being separate from “the State making any law”, indicating that the
F State making any law would be laws made after the Constitution comes
into force as opposed to “existing law”, which are pre-constitutional
laws enacted before the Constitution came into force, as is clear from
the definition of “existing law” contained in Article 366(10), which reads
as under:
G “366. Definitions.—In this Constitution, unless the context
otherwise requires, the following expressions have the meanings
hereby respectively assigned to them, that is to say—
xxx xxx xxx
(10) “existing law” means any law, Ordinance, order, bye-law,
H rule or regulation passed or made before the commencement of
JOSEPH SHINE v. UNION OF INDIA 853
[R. F. NARIMAN, J.]

this Constitution by any Legislature, authority or person having A
power to make such a law, Ordinance, order, bye-law, rule or
regulation;”
15. Article 15(3) refers to the State making laws which therefore,
obviously cannot include existing law. Article 15(3) is in this respect
similar to Article 16(4), which reads as follows: B
“16. Equality of opportunity in matters of public
employment.—
xxx xxx xxx
(4) Nothing in this article shall prevent the State from making C
any provision for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the
State.
The vital difference in language between Articles 15(3) and 16(4) on the D
one hand, and Article 19(2)-(6) on the other, must thus be given effect.
16. Coming back to Yusuf Abdul Aziz (supra), the difference in
language between Article 15(3) and Article 19(2)-(6) was not noticed.
The limited ratio of this judgment merely refers to the last sentence in
Section 497 which it upholds. Its ratio does not extend to upholding the
E
entirety of the provision or referring to any of the arguments made before
us for striking down the provision as a whole.
17. We then come to Sowmithri Vishnu v. Union of India and
Anr., (1985) Supp SCC 137, (“Sowmithri Vishnu”). In this case, an
Article 32 petition challenged the constitutional validity of Section 497 of
F
the Penal Code on three grounds which are set out in paragraph 6 of the
judgment. Significantly, the learned counsel in that case argued that
Section 497 is a flagrant instance of ‘gender discrimination’, ‘legislative
despotism’, and ‘male chauvinism’. This Court repelled these arguments
stating that they had a strong emotive appeal but no valid legal basis to
rest upon. The first argument, namely, an argument of discrimination G
was repelled by stating that the ambit of the offence of adultery should
make the woman punishable as well. This was repelled by saying that
such arguments go to the policy of the law and not its constitutionality.
This was on the basis that it is commonly accepted that it is the man who
is the seducer and not the woman. Even in 1985, the Court accepted
H
854 SUPREME COURT REPORTS [2018] 11 S.C.R.

A that this archaic position may have undergone some change over the
years, but it is for the legislature to consider whether Section 497 be
amended appropriately so as to take note of the transformation that
society has undergone.
The Court then referred to the 42nd Law Commission Report, 1971,
B which recommended the retention of Section 497, with the modification
that, even the wife, who has sexual relations with a person other than
her husband, should be made punishable for adultery. The dissenting
note of Mrs. Anna Chandi was also taken note of, where the dissenter
stated that this is the right time to consider the question whether the
offence of adultery, as envisaged in Section 497, is in tune with our
C present-day notions of women’s status in marriage.
The second ground was repelled stating that a woman is the victim of
the crime, and as the offence of adultery is considered as an offence
against the sanctity of the matrimonial home, only those men who defile
that sanctity are brought within the net of the law. Therefore, it is of no
D moment that Section 497 does not confer any right on the wife to prosecute
the husband who has committed adultery with another woman.
The third ground, namely, that Section 497 is underinclusive inasmuch as
a husband who has sexual relations with an unmarried woman is not
within the net of the law, was repelled stating that an unfaithful husband
E may invite a civil action by the wife for separation, and that the Legislature
is entitled to deal with the evil where it is felt and seen most.
A challenge on the ground of Article 21 was also repelled, stating that
the fact that a provision for hearing the wife is not contained in Section
497 cannot render that Section unconstitutional. This Court then referred
F to the judgment in Yusuf Abdul Aziz (supra) and stated that since it was
a 1954 decision, and 30 years had passed since then, this Court was
examining the position afresh. The Court ended with the sermon, “stability
of marriages is not an ideal to be scorned.”
18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72,
G this Court, after referring to Sowmithri Vishnu (supra), repelled a similar
challenge to Section 198 of the CrPC, 1973. After referring to Sowmithri
Vishnu (supra), since Section 497, IPC and Section 198, CrPC go hand
in hand and constitute a ‘legislative packet’ to deal with the offence of
adultery committed by an outsider, the challenge to the said Section failed.
H
JOSEPH SHINE v. UNION OF INDIA 855
[R. F. NARIMAN, J.]

19. International trends worldwide also indicate that very few A
nations continue to treat adultery as a crime, though most nations retain
adultery for the purposes of divorce laws. Thus, adultery continues to be
a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives,
Nepal, Pakistan, Philippines, United Arab Emirates, some states of the
United States of America, Algeria, Democratic Republic of Congo, Egypt,
B
Morocco, and some parts of Nigeria.
On the other hand, a number of jurisdictions have done away with adultery
as a crime. The People’s Republic of China, Japan, Brazil, New Zealand,
Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria,
the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and
Tobago, Seychelles etc. are some of the jurisdictions in which it has C
been done away with. In South Korea21 and Guatemala,22 provisions
similar to Section 497 have been struck down by the constitutional courts
of those nations.
20. The Supreme Court of Namibia, in an instructive judgment, 23
went into whether the criminal offence of adultery would protect D
marriages and reduce the incidence of adultery. It said:
“[45] But does the action protect marriages from adultery? For
the reasons articulated by both the SCA and the Constitutional
Court, I do not consider that the action can protect marriage as
it does not strengthen a weakening marriage or breathe life into E
one which is in any event disintegrating. [DE v. RH, 2015 (5) SA
83 (CC) (Constitutional Court of South Africa) para 49]. The
reasoning set out by the SCA is salutary and bears repetition:
‘But the question is: if the protection of marriage is one of its
main goals, is the action successful in achieving that goal? The F
question becomes more focused when the spotlight is directed
at the following considerations:
(a) First of all, as was pointed out by the German
Bundesgericht in the passage from the judgment (JZ 1973,
668) from which I have quoted earlier, although marriage is — G

21
2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].
22
Expediente 936-95, (07.03.1996), República de Guatemala Corte de Constitucionalidad
[Constitutional Court of Guatemala].
23
James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016)
[Supreme Court of Namibia]. H
856 SUPREME COURT REPORTS [2018] 11 S.C.R.

A ‘a human institution which is regulated by law and
protected by the Constitution and which, in turn, creates
genuine legal duties. Its essence . . . consists in the
readiness, founded in morals, of the parties to the
marriage to create and to maintain it.’
B If the parties to the marriage have lost that moral
commitment, the marriage will fail, and punishment meted
out to a third party is unlikely to change that.
(b) Grave doubts are expressed by many about the deterrent
effect of the action. In most other countries it was concluded
C that the action (no longer) has any deterrent effect and I
have no reason to think that the position in our society is all
that different. Perhaps one reason is that adultery occurs
in different circumstances. Every so often it happens
without any premeditation, when deterrence hardly plays a
role. At the other end of the scale, the adultery is sometimes
D carefully planned and the participants are confident that it
will not be discovered. Moreover, romantic involvement
between one of the spouses and a third party can be as
devastating to the marital relationship as (or even more so
than) sexual intercourse.
E (c) If deterrence is the main purpose, one would have
thought that this could better be achieved by retaining the
imposition of criminal sanctions or by the grant of an interdict
in favour of the innocent spouse against both the guilty
spouse and the third party to prevent future acts of adultery.
F But, as we know, the crime of adultery had become
abrogated through disuse exactly 100 years ago while an
interdict against adultery has never been granted by our
courts (see, for example, Wassenaar v Jameson, supra at
352H – 353H). Some of the reasons given in Wassenaar
as to why an interdict would not be appropriate are quite
G enlightening and would apply equally to the appropriateness
of a claim for damages. These include, firstly, that an
interdict against the guilty spouse is not possible because
he or she commits no delict. Secondly, that as against a
third party —
H
JOSEPH SHINE v. UNION OF INDIA 857
[R. F. NARIMAN, J.]

‘it interferes with, and restricts the rights and freedom A
that the third party ordinarily has of using and disposing
of his body as he chooses; . . . it also affects the
relationship of the third party with the claimant’s spouse,
who is and cannot be a party to the interdict, and
therefore indirectly interferes with, and restricts her
B
rights and freedom of, using and disposing of her body
as she chooses’. [At 353E.]
(d) In addition the deterrence argument seems to depart
from the assumption that adultery is the cause of the
breakdown of a marriage, while it is now widely recognised
that causes for the breakdown in marriages are far more C
complex. Quite frequently adultery is found to be the result
and not the cause of an unhappy marital relationship.
Conversely stated, a marriage in which the spouses are
living in harmony is hardly likely to be broken up by a third
party.’”24 D
21. Coming back to Section 497, it is clear that 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 E
woman must know or has reason to believe that she is the
wife of another man;
(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 F
without the consent or connivance of her husband.
22. What is apparent on a cursory reading of these ingredients is
that a married man, who has sexual intercourse with an unmarried woman
or a widow, does not commit the offence of adultery. Also, if a man has
sexual intercourse with a married woman with the consent or connivance G
of her husband, he does not commit the offence of adultery. The consent
of the woman committing adultery is material only for showing that the
offence is not another offence, namely, rape.
24
Id., 17-19.
H
858 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 23. The background in which this provision was enacted now needs
to be stated. In 1860, when the Penal Code was enacted, the vast majority
of the population in this country, namely, Hindus, had no law of divorce
as marriage was considered to be a sacrament. Equally, a Hindu man
could marry any number of women until 1955. It is, therefore, not far to
see as to why a married man having sexual intercourse with an unmarried
B
woman was not the subject matter of the offence. Since adultery did not
exist as a ground in divorce law, there being no divorce law, and since a
man could marry any number of wives among Hindus, it was clear that
there was no sense in punishing a married man in having sex with an
unmarried woman as he could easily marry her at a subsequent point in
C time. Two of the fundamental props or bases of this archaic law have
since gone. Post 1955-1956, with the advent of the “Hindu Code”, so to
speak, a Hindu man can marry only one wife; and adultery has been
made a ground for divorce in Hindu Law.
Further, the real heart of this archaic law discloses itself when consent
D or connivance of the married woman’s husband is obtained – the married
or unmarried man who has sexual intercourse with such a woman, does
not then commit the offence of adultery. This can only be on the
paternalistic notion of a woman being likened to chattel, for if one is to
use the chattel or is licensed to use the chattel by the “licensor”, namely,
the husband, no offence is committed. Consequently, the wife who has
E committed adultery is not the subject matter of the offence, and cannot,
for the reason that she is regarded only as chattel, even be punished as
an abettor. This is also for the chauvinistic reason that the third-party
male has ‘seduced’ her, she being his victim. What is clear, therefore, is
that this archaic law has long outlived its purpose and does not square
F with today’s constitutional morality, in that the very object with which it
was made has since become manifestly arbitrary, having lost its rationale
long ago and having become in today’s day and age, utterly irrational.
On this basis alone, the law deserves to be struck down, for with the
passage of time, Article 14 springs into action and interdicts such law as
being manifestly arbitrary. That legislation can be struck down on the
G ground of manifest arbitrariness is no longer open to any doubt, as has
been held by this Court in Shayara Bano v. Union of India and Ors.,
(2017) 9 SCC 1, as follows:
“101. …… Manifest arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally and/or without
H
JOSEPH SHINE v. UNION OF INDIA 859
[R. F. NARIMAN, J.]

adequate determining principle. Also, when something is done A
which is excessive and disproportionate, such legislation would
be manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out by
us above would apply to negate legislation as well under Article 14.”
24. It is clear, therefore, that the ostensible object of Section 497, B
as pleaded by the State, being to protect and preserve the sanctity of
marriage, is not in fact the object of Section 497 at all, as has been seen
hereinabove. The sanctity of marriage can be utterly destroyed by a
married man having sexual intercourse with an unmarried woman or a
widow, as has been seen hereinabove. Also, if the husband consents or
connives at such sexual intercourse, the offence is not committed, thereby C
showing that it is not sanctity of marriage which is sought to be protected
and preserved, but a proprietary right of a husband. Secondly, no deterrent
effect has been shown to exist, or ever to have existed, which may be a
legitimate consideration for a State enacting criminal law. Also, manifest
arbitrariness is writ large even in cases where the offender happens to D
be a married woman whose marriage has broken down, as a result of
which she no longer cohabits with her husband, and may in fact, have
obtained a decree for judicial separation against her husband, preparatory
to a divorce being granted. If, during this period, she has sex with another
man, the other man is immediately guilty of the offence.
E
25. The aforesaid provision is also discriminatory and therefore,
violative of Article 14 and Article 15(1). As has been held by us
hereinabove, in treating a woman as chattel for the purposes of this
provision, it is clear that such provision discriminates against women on
grounds of sex only, and must be struck down on this ground as well.
Section 198, CrPC is also a blatantly discriminatory provision, in that it is F
the husband alone or somebody on his behalf who can file a complaint
against another man for this offence. Consequently, Section 198 has
also to be held constitutionally infirm.
26. We have, in our recent judgment in Justice K.S. Puttaswamy
(Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1, G
(“Puttaswamy”), held:
“108. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection
of life and liberty with dignity. Dignity as a constitutional value
finds expression in the Preamble. The constitutional vision seeks H
860 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the realisation of justice (social, economic and political); liberty
(of thought, expression, belief, faith and worship); equality (as a
guarantee against arbitrary treatment of individuals) and fraternity
(which assures a life of dignity to every individual). These
constitutional precepts exist in unity to facilitate a humane and
compassionate society. The individual is the focal point of the
B
Constitution because it is in the realisation of individual rights
that the collective well-being of the community is determined.
Human dignity is an integral part of the Constitution. Reflections
of dignity are found in the guarantee against arbitrariness (Article
14), the lamps of freedom (Article 19) and in the right to life and
C personal liberty (Article 21).”
xxx xxx xxx
“298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an intrinsic
value, human dignity is an entitlement or a constitutionally
D protected interest in itself. In its instrumental facet, dignity and
freedom are inseparably intertwined, each being a facilitative
tool to achieve the other. The ability of the individual to protect a
zone of privacy enables the realisation of the full value of life
and liberty. Liberty has a broader meaning of which privacy is a
E subset. All liberties may not be exercised in privacy. Yet others
can be fulfilled only within a private space. Privacy enables the
individual to retain the autonomy of the body and mind. The
autonomy of the individual is the ability to make decisions on
vital matters of concern to life. Privacy has not been couched as
an independent fundamental right. But that does not detract from
F the constitutional protection afforded to it, once the true nature
of privacy and its relationship with those fundamental rights which
are expressly protected is understood. Privacy lies across the
spectrum of protected freedoms. The guarantee of equality is a
guarantee against arbitrary State action. It prevents the State
from discriminating between individuals. The destruction by the
G
State of a sanctified personal space whether of the body or of
the mind is violative of the guarantee against arbitrary State action.
Privacy of the body entitles an individual to the integrity of the
physical aspects of personhood. The intersection between one’s
mental integrity and privacy entitles the individual to freedom of
H thought, the freedom to believe in what is right, and the freedom
JOSEPH SHINE v. UNION OF INDIA 861
[R. F. NARIMAN, J.]

of self-determination. When these guarantees intersect with A
gender, they create a private space which protects all those
elements which are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the dignity
of the individual. Above all, the privacy of the individual recognises
an inviolable right to determine how freedom shall be exercised.
B
An individual may perceive that the best form of expression is to
remain silent. Silence postulates a realm of privacy. An artist
finds reflection of the soul in a creative endeavour. A writer
expresses the outcome of a process of thought. A musician
contemplates upon notes which musically lead to silence. The
silence, which lies within, reflects on the ability to choose how to C
convey thoughts and ideas or interact with others. These are
crucial aspects of personhood. The freedoms under Article 19
can be fulfilled where the individual is entitled to decide upon his
or her preferences. Read in conjunction with Article 21, liberty
enables the individual to have a choice of preferences on various
D
facets of life including what and how one will eat, the way one
will dress, the faith one will espouse and a myriad other matters
on which autonomy and self-determination require a choice to
be made within the privacy of the mind. The constitutional right
to the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not E
express those choices to the world. These are some illustrations
of the manner in which privacy facilitates freedom and is intrinsic
to the exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part
F
III with an alpha-suffixed right to privacy: this is not an act of
judicial redrafting. Dignity cannot exist without privacy. Both
reside within the inalienable values of life, liberty and freedom
which the Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a constitutional
value which straddles across the spectrum of fundamental rights G
and protects for the individual a zone of choice and self-
determination.”
xxx xxx xxx
“482. Shri Sundaram has argued that rights have to be traced
directly to those expressly stated in the fundamental rights chapter H
862 SUPREME COURT REPORTS [2018] 11 S.C.R.

A of the Constitution for such rights to receive protection, and
privacy is not one of them. It will be noticed that the dignity of
the individual is a cardinal value, which is expressed in the
Preamble to the Constitution. Such dignity is not expressly stated
as a right in the fundamental rights chapter, but has been read
into the right to life and personal liberty. The right to live with
B
dignity is expressly read into Article 21 by the judgment in Jolly
George Varghese v. Bank of Cochin [Jolly George
Varghese v. Bank of Cochin, (1980) 2 SCC 360], at para 10.
Similarly, the right against bar fetters and handcuffing being
integral to an individual’s dignity was read into Article 21 by the
C judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155], at paras 192,
197-B, 234 and 241 and Prem Shankar Shukla v. Delhi Admn.
[Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 :
1980 SCC (Cri) 815], at paras 21 and 22. It is too late in the day
to canvas that a fundamental right must be traceable to express
D
language in Part III of the Constitution. As will be pointed out
later in this judgment, a Constitution has to be read in such a way
that words deliver up principles that are to be followed and if this
is kept in mind, it is clear that the concept of privacy is contained
not merely in personal liberty, but also in the dignity of the
E individual.”
xxx xxx xxx
“525. But most important of all is the cardinal value of fraternity
which assures the dignity of the individual. [In 1834, Jacques-
Charles DuPont de l’Eure associated the three terms liberty,
F equality and fraternity together in the Revue Républicaine, which
he edited, as follows: “Any man aspires to liberty, to equality, but
he cannot achieve it without the assistance of other men, without
fraternity.” Many of our decisions recognise human dignity as
being an essential part of the fundamental rights chapter. For
G example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3
SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi,
(1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161 at para
10, Maharashtra University of Health Sciences v. Satchikitsa
Prasarak Mandal, (2010) 3 SCC 786 at para
H
JOSEPH SHINE v. UNION OF INDIA 863
[R. F. NARIMAN, J.]

37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras A
12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC
761 at para 37.] The dignity of the individual encompasses the
right of the individual to develop to the full extent of his potential.
And this development can only be if an individual has autonomy
over fundamental personal choices and control over dissemination
B
of personal information which may be infringed through an
unauthorised use of such information. It is clear that Article 21,
more than any of the other articles in the fundamental rights
chapter, reflects each of these constitutional values in full, and is
to be read in consonance with these values and with the
international covenants that we have referred to. In the ultimate C
analysis, the fundamental right to privacy, which has so many
developing facets, can only be developed on a case-to-case basis.
Depending upon the particular facet that is relied upon, either
Article 21 by itself or in conjunction with other fundamental rights
would get attracted.”
D
The dignity of the individual, which is spoken of in the Preamble to the
Constitution of India, is a facet of Article 21 of the Constitution. A
statutory provision belonging to the hoary past which demeans or
degrades the status of a woman obviously falls foul of modern
constitutional doctrine and must be struck down on this ground also.
E
27. When we come to the decision of this Court in Yusuf Abdul
Aziz (supra), it is clear that this judgment also does not, in any manner,
commend itself or keep in tune with modern constitutional doctrine. In
any case, as has been held above, its ratio is an extremely limited one as
it upheld a wife not being punishable as an abettor which is contained in
Section 497, IPC. The focus on whether the provision as a whole would F
be constitutionally infirm was not there in the aforesaid judgment.
At this stage, it is necessary to advert to Chief Justice Chagla’s foresight
in the Bombay High Court judgment which landed up in appeal before
this Court in Yusuf Abdul Aziz’s (supra). Chief Justice Chagla had
stated that since the underlying idea of Section 497 is that wives are G
properties of their husbands, Section 497 should not find a place in any
modern Code of law, and is an argument in favour of doing away with
Section 497 altogether. The day has long since arrived when the Section
does, in fact, need to be done away with altogether, and is being done
away with altogether. H
864 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 28. In Sowmithri Vishnu (supra), this Court upheld Section 497
while repelling three arguments against its continuance, as has been
noticed hereinabove. This judgment also must be said to be swept away
by the tidal wave of recent judgments expanding the scope of the
fundamental rights contained in Articles 14, 15, and 21. Ancient notions
of the man being the seducer and the woman being the victim permeate
B
the judgment, which is no longer the case today. The moving times have
not left the law behind as we have just seen, and so far as engaging the
attention of law makers when reform of penal law is undertaken, we
may only hasten to add that even when the CrPC was fully replaced in
1973, Section 198 continued to be on the statute book. Even as of today,
C Section 497 IPC continues to be on the statute book. When these sections
are wholly outdated and have outlived their purpose, not only does the
maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to
interdict such law, but when such law falls foul of constitutional guarantees,
it is this Court’s solemn duty not to wait for legislation but to strike down
such law. As recently as in Shayara Bano (supra), it is only the minority
D
view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for
the law to change legislatively by way of social reform. The majority
view was the exact opposite, which is why Triple Talaq was found
constitutionally infirm and struck down by the majority. Also, we are of
the view that the statement in this judgment that stability of marriages is
E not an ideal to be scorned, can scarcely be applied to this provision, as
we have seen that marital stability is not the object for which this provision
was enacted. On all these counts, therefore, we overrule the judgment
in Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi
(supra), which upheld the constitutional validity of Section 198 must, for
similar reasons, be held to be no longer good law. We, therefore, declare
F
that Section 497 of the Indian Penal Code, 1860 and Section 198 of the
Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1),
and 21 of the Constitution of India and are, therefore, struck down as
being invalid.

G
DR. D. Y. CHANDRACHUD, J.
INDEX
A Gender: the discursive struggle
B Judicial discourse on adultery
H
JOSEPH SHINE v. UNION OF INDIA 865
[DR. D. Y. CHANDRACHUD, J.]

C Relics of the past A
D Across frontiers
E Confronting patriarchy
F ‘The Good Wife’
F.1 The entrapping cage B
G Denuding identity - women as sexual property
G.1 Exacting fidelity: the intimacies of marriage
H Towards transformative justice
C

A Gender: the discursive struggle
1. Our Constitution is a repository of rights, a celebration of myriad
freedoms and liberties. It envisages the creation of a society where the
ideals of equality, dignity and freedom triumph over entrenched prejudices D
and injustices. The creation of a just, egalitarian society is a process. It
often involves the questioning and obliteration of parochial social mores
which are antithetical to constitutional morality. The case at hand enjoins
this constitutional court to make an enquiry into the insidious permeation
of patriarchal values into the legal order and its role in perpetuating gender
injustices. E

2. Law and society are intrinsically connected and oppressive
social values often find expression in legal structures. The law influences
society as well but societal values are slow to adapt to leads shown by
the law. The law on adultery cannot be construed in isolation. To fully
comprehend its nature and impact, every legislative provision must be F
understood as a ‘discourse’ about social structuring.1 However, the
discourse of law is not homogenous.2 In the context particularly of Section
497, it regards individuals as ‘gendered citizens’.3 In doing so, the law
creates and ascribes gender roles based on existing societal stereotypes.
An understanding of law as a ‘discourse’ would lead to the recognition G
of the role of law in creating ‘gendered identities’.4
1
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with
Law in India, Sage Publications (1996) at page 40
2
Ibid at page 41
3
Ibid
4
Ibid H
866 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 3. Over the years, legal reform has had a significant role in altering
the position of women in societal orderings. This is seen in matters
concerning inheritance and in the protection against domestic violence.
However, in some cases, the law operates to perpetuate an unequal
world for women. Thus, depending on the manner in which it is used,
law can act as an agent of social change as well as social stagnation.
B
Scholar Patricia Williams, who has done considerable work on the critical
race theory, is sanguine about the possibility of law engendering
progressive social transformation:
“It is my deep belief that theoretical legal understanding and
social transformation need not be oxymoronic”5
C
The Constitution, both in text and interpretation, has played a significant
role in the evolution of law from being an instrument of oppression to
becoming one of liberation. Used in a liberal perspective, the law can
enhance democratic values. As an instrument which preserves the status
quo on the other hand, the law preserves stereotypes and legitimises
D unequal relationships based on pre-existing societal discrimination.
Constantly evolving, law operates as an important “site for discursive
struggle”, where ideals compete and new visions are shaped.6 In regarding
law as a “site of discursive struggle”, it becomes imperative to examine
the institutions and structures within which legal discourse operates:7
E “The idea of neutral dialogue is an idea which denies history,
denies structure, denies the positioning of subjects.”8
In adjudicating on the rights of women, the Court must not lose sight of
the institutions and values which have forced women to a shackled
existence so far. To fully recognise the role of law and society in shaping
F the lives and identities of women, is also to ensure that patriarchal social
values and legal norms are not permitted to further obstruct the exercise
of constitutional rights by the women of our country.
4. In the preceding years, the Court has evolved a jurisprudence
of rights- granting primacy to the right to autonomy, dignity and individual
G
5
Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University
Press (1991)
6
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with
Law in India, Sage Publications (1996) at page 41
7
Ibid
8
Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge
H (1990)
JOSEPH SHINE v. UNION OF INDIA 867
[DR. D. Y. CHANDRACHUD, J.]

choice. The right to sexual autonomy and privacy has been granted the A
stature of a Constitutional right. In confronting the sources of gendered
injustice which threaten the rights and freedoms promised in our
Constitution, we set out to examine the validity of Section 497 of the
Indian Penal Code. In doing so, we also test the constitutionality of moral
and societal regulation of women and their intimate lives through the law.
B
B Judicial discourse on adultery
5. This Court, on earlier occasions, has tested the constitutionality
of Section 497 of the Indian Penal Code as well as Section 198(2) of the
Code of Criminal Procedure.
Section 497 reads thus: C

“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 D
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.”
Section 198(2) of the Code of Criminal Procedure reads thus:
E
“(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 com- mitted may, with the leave of the F
Court, make a complaint on his behalf.”
6. The decision of the Constitution Bench in Yusuf Abdul Aziz v
State of Bombay9, arose from a case where the appellant was being
prosecuted for adultery under Section 497. On a complaint being filed,
he moved the High Court to determine the constitutional question about G
the validity of the provision, under Article 228. The High Court decided
against the appellant10, but Chief Justice Chagla made an observation
about the assumption underlying Section 497:
9
1954 SCR 930
10
AIR 1951 Bom 470 H
868 SUPREME COURT REPORTS [2018] 11 S.C.R.

A “Mr Peerbhoy is right when he says that the underlying idea of
Section 497 is that wives are properties of their husbands. The
very fact that the offence is only cognizable with the consent of
the husband emphasises that point of view. It may be argued
that Section 497 should not find a place in any modern Code of
law. Days are past, when women were looked upon as property
B
by their husbands.”
A narrow challenge was addressed before this Court. The judgment of
Justice Vivian Bose records the nature of the challenge:
“3. Under Section 497 the offence of adultery can only be
C committed by a man but in the absence of any provision to the
contrary the woman would be punishable as an abettor.
The last sentence in Section 497 prohibits this. It runs—
“In such case the wife shall not be punishable as an abettor”. It
is said that this offends Articles 14 and 15.”
D
Hence, the challenge was only to the prohibition on treating the wife as
an abettor. It was this challenge which was dealt with and repelled on
the ground that Article 14 must be read with the other provisions of Part
III which prescribe the ambit of the fundamental rights. The prohibition
on treating the wife as an abettor was upheld as a special provision
E which is saved by Article 15(3). The conclusion was that:
“5. Article 14 is general and must be read with the other
provisions which set out the ambit of fundamental rights. Sex is
a sound classification and although there can be no discrimination
in general on that ground, the Constitution itself provides for special
F provisions in the case of women and children. The two articles
read together validate the impugned clause in Section 497 of the
Indian Penal Code.”
7. The challenge was to a limited part of Section 497: that which
prohibited a woman from being prosecuted as an abettor. Broader issues
G such as whether (i) the punishment for adultery violates Article 21; (ii)
the statutory provision suffers from manifest arbitrariness; (iii) the
legislature has, while ostensibly protecting the sanctity of marriage,
invaded the dignity of women; and (iv) Section 497 violates Article 15(1)
by enforcing gender stereotypes were neither addressed before this Court
nor were they dealt with.
H
JOSEPH SHINE v. UNION OF INDIA 869
[DR. D. Y. CHANDRACHUD, J.]

This Court construed the exemption granted to women from criminal A
sanctions as a ‘special provision’ for the benefit of women and thus,
protected under Article 15(3) of the Constitution. In Union of India v
Elphinstone Spinning and Weaving Co. Ltd,11 a Constitution Bench
of this Court held:
“17…When the question arises as to the meaning of a certain B
provision in a statute it is not only legitimate but proper to read
that provision in its context. The context means the statute as a
whole, the previous state of law, other statutes in pari materia,
the general scope of the statute and the mischief that it was
intended to remedy…”12
C
It is of particular relevance to examine the mischief that the provision
intends to remedy. The history of Section 497 reveals that the law on
adultery was for the benefit of the husband, for him to secure ownership
over the sexuality of his wife. It was aimed at preventing the woman
from exercising her sexual agency. Thus, Section 497 was never
conceived to benefit women. In fact, the provision is steeped in D
stereotypes about women and their subordinate role in marriage. The
patriarchal underpinnings of the law on adultery become evident when
the provision is considered as a whole.
8. In the subsequent decision of the three judge Bench in
Sowmithri Vishnu v Union of India13, the court proceeded on the E
basis that the earlier decision in Yusuf Abdul Aziz had upheld Section
497 against a challenge based on Articles 14 and 15 of the Constitution.
This is not a correct reading or interpretation of the judgment.
9. Sowmithri Vishnu did as a matter of fact consider the wider
constitutional challenge on the ground that after the passage of thirty F
years, “particularly in the light of the alleged social transformation in the
behavioural pattern of women in matters of sex”, it had become necessary
that the matter be revisited. Sowmithri Vishnu arose in a situation where
a petition for divorce by the appellant against her husband on the ground
of desertion was dismissed with the finding that it was the appellant who G
had deserted her husband. The appellant’s husband then sued for divorce
on the ground of desertion and adultery. Faced with this petition, the

11
(2001) 4 SCC 139
12
Ibid. at page 164
13
1985 Supp SCC 137 H
870 SUPREME COURT REPORTS [2018] 11 S.C.R.

A appellant urged that a decree for divorce on the ground of desertion may
be passed on the basis of the findings in the earlier petition. She, however,
opposed the effort of the husband to urge the ground of adultery. While
the trial court accepted the plea of the husband to assert the ground of
adultery, the High Court held in revision that a decree of divorce was
liable to be passed on the ground of desertion, making it unnecessary to
B
inquire into adultery. While the petition for divorce was pending against
the appellant, her husband filed a complaint under Section 497 against
the person with whom the appellant was alleged to be in an adulterous
relationship. The appellant then challenged the constitutional validity of
Section 497.
C The judgment of the three judge Bench indicates that three grounds of
challenge were addressed before this Court : first, while Section 497
confers a right on the husband to prosecute the adulterer, it does not
confer upon the wife to prosecute the woman with whom her husband
has committed adultery; second, Section 497 does not confer a right on
D the wife to prosecute her husband who has committed adultery with
another woman; and third, Section 497 does not cover cases where a
man has sexual relations with an unmarried woman. The submission
before this Court was that the classification under Section 497 was
irrational and ‘arbitrary’. Moreover, it was also urged that while facially,
the provision appears to be beneficial to a woman, it is in reality based
E on a notion of paternalism “which stems from the assumption that women,
like chattels, are the property of men.”
10. The decision in Sowmithri Vishnu dealt with the constitutional
challenge by approaching the discourse on the denial of equality in formal,
and rather narrow terms. Chandrachud, CJ speaking for the three judge
F Bench observed that by definition, the offence of adultery can be
committed by a man and not by a woman. The court construed the plea
of the petitioner as amounting to a suggestion that the definition should
be recast in a manner that would make the offence gender neutral. The
court responded by observing that this was a matter of legislative policy
G and that the court could invalidate the provision only if a constitutional
violation is established. The logic of the court, to the effect that extending
the ambit of a statutory definition is a matter which requires legislative
change is unexceptionable. The power to fashion an amendment to the
law lies with the legislature. But this only leads to the conclusion that the
court cannot extend the legislative prescription by making the offence
H
JOSEPH SHINE v. UNION OF INDIA 871
[DR. D. Y. CHANDRACHUD, J.]

gender neutral. It does not answer the fundamental issue as to whether A
punishment for adultery is valid in constitutional terms. The error in
Sowmithri Vishnu lies in holding that there was no constitutional
infringement. The judgment postulates that:
“7…It is commonly accepted that it is the man who is the seducer
and not the woman. This position may have undergone some B
change over the years but it is for the Legislature to consider
whether Section 497 should be amended appropriately so as to
take note of the “transformation” which the society has
undergone. The Law Commission of India in its Forty-second
Report, 1971, recommended the retention of Section 497 in its
present form with the modification that, even the wife, who has C
sexual relations with a person other than her husband, should be
made punishable for adultery. The suggested modification was
not accepted by the Legislature. Mrs Anna Chandi, who was in
the minority, voted for the deletion of Section 497 on the ground
that “it is the right time to consider the question whether the D
offence of adultery as envisaged in Section 497 is in tune with
our present-day notions of woman’s status in marriage”. The
report of the Law Commission shows that there can be two
opinions on the desirability of retaining a provision like the one
contained in Section 497 on the statute book. But, we cannot
strike down that section on the ground that it is desirable to delete E
it.”14
These observations indicate that the constitutional challenge was
addressed purely from the perspective of the argument that Section 497
is not gender neutral, in allowing only the man but not to the woman in a
sexual relationship to be prosecuted. The court proceeded on the F
assumption, which it regards as “commonly accepted that it is the man
who is the seducer and not the woman.” Observing that this position
may have undergone some change, over the years, the decision holds
that these are matters for the legislature to consider and that the
desirability of deleting Section 497 is not a ground for invalidation. G
11. The decision in Sowmithri Vishnu has left unanswered the
fundamental challenge which was urged before the Court. Under Article
14, the challenge was that the statutory provision treats a woman purely
as the property of her husband. That a woman is regarded no more than
14
Ibid. at page 141 H
872 SUPREME COURT REPORTS [2018] 11 S.C.R.

A as a possession of her husband is evidenced in Section 497, in more than
one context. The provision stipulates that a man who has sexual
intercourse with the wife of another will not be guilty of offence if the
husband of the woman were to consent or, (worse still, to connive. In
this, it is evident that the legislature attributes no agency to the woman.
Whether or not a man with whom she has engaged in sexual intercourse
B
is guilty of an offence depends exclusively on whether or not her husband
is a consenting individual. No offence exists if her husband were to
consent. Even if her husband were to connive at the act, no offence
would be made out. The mirror image of this constitutional infirmity is
that the wife of the man who has engaged in the act has no voice or
C agency under the statute. Again, the law does not make it an offence for
a married man to engage in an act of sexual intercourse with a single
woman. His wife is not regarded by the law as a person whose agency
and dignity is affected. The underlying basis of not penalising a sexual
act by a married man with a single woman is that she (unlike a married
woman) is not the property of a man (as the law would treat her to be if
D
she is married). Arbitrariness is writ large on the provision. The problem
with Section 497 is not just a matter of under inclusion. The court in
Sowmithri Vishnu recognised that an under-inclusive definition is not
necessarily discriminatory and that the legislature is entitled to deal with
the evil where it is felt and seen the most. The narrow and formal sense
E in which the provisions of Article 14 have been construed is evident
again from the following observations:
“8…The contemplation of the law, evidently, is that the wife,
who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. The offence of adultery,
F as defined in Section 497, is considered by the Legislature as an
offence against the sanctity of the matrimonial home, an act
which is committed by a man, as it generally is. Therefore, those
men who defile that sanctity are brought within the net of the
law. In a sense, we revert to the same point: Who can prosecute
whom for which offence depends, firstly, on the definition of the
G offence and, secondly, upon the restrictions placed by the law of
procedure on the right to prosecute.”15
The decision of the three judge Bench does not address the central
challenge to the validity of Section 497. Section 497, in its effort to
15
H Ibid. at page 142
JOSEPH SHINE v. UNION OF INDIA 873
[DR. D. Y. CHANDRACHUD, J.]

protect the sanctity of marriage, has adopted a notion of marriage which A
does not regard the man and the woman as equal partners. It proceeds
on the subjection of the woman to the will of her husband. In doing so,
Section 497 subordinates the woman to a position of inferiority thereby
offending her dignity, which is the core of Article 21. Significantly, even
the challenge under Article 21 was addressed on behalf of the petitioner
B
in that case in a rather narrow frame. The argument before this Court
was that at the trial involving an offence alleged to have been committed
under Section 497, the woman with whom the accused is alleged to
have had sexual intercourse would have no right of being heard. It was
this aspect alone which was addressed in Sowmithri Vishnu when the
court held that such a right of being heard can be read in an appropriate C
case. Ultimately, the court held that:
“12…It is better, from the point of view of the interests of the
society, that at least a limited class of adulterous relationships is
punishable by law. Stability of marriages is not an ideal to be
scorned.”16 D
Sowmithri Vishnu has thus proceeded on the logic that in specifying an
offence, it is for the legislature to define what constitutes the offence.
Moreover, who can prosecute and who can be prosecuted, are matters
which fall within the domain of the law. The inarticulate major premise
of the judgment is that prosecution for adultery is an effort to protect the E
stability of marriages and if the legislature has sought to prosecute only
a limited class of ‘adulterous relationships’, its choice could not be
questioned. ‘Sowmithri Vishnu’fails to deal with the substantive aspects
of constitutional jurisprudence which have a bearing on the validity of
Section 497: the guarantee of equality as a real protection against
arbitrariness, the guarantee of life and personal liberty as an essential F
recognition of dignity, autonomy and privacy and above all gender equality
as a cornerstone of a truly equal society. For these reasons, the decision
in Sowmithri Vishnu cannot be regarded as a correct exposition of the
constitutional position. Sowmithri Vishnu is overruled.
12. The decision of a two judge Bench in V Revathi v Union of G
India involved a challenge to Section 497 (read with Section 198(2) of
17

the Code of Criminal Procedure) which disables a wife from prosecuting
her husband for being involved in an adulterous relationship. The court
16
Ibid. at page 144
17
(1988) 2 SCC 72 H
874 SUPREME COURT REPORTS [2018] 11 S.C.R.

A noted that Section 497 permits neither the husband of the offending wife
to prosecute her nor does it permit the wife to prosecute her offending
husband for being disloyal. This formal sense of equality found
acceptance by the court. The challenge was repelled by relying on the
decision in Sowmithri Vishnu. Observing that Section 497 and Section
198(2) constitute a “legislative packet”, the court observed that the
B
provision does not allow either the wife to prosecute an erring husband
or a husband to prosecute the erring wife. In the view of the court, this
indicated that there is no discrimination on the ground of sex. In the view
of the court :
“5…The law does not envisage the punishment of any of the
C spouses at the instance of each other. Thus there is no
discrimination against the woman insofar as she is not permitted
to prosecute her husband. A husband is not permitted because
the wife is not treated as an offender in the eye of law. The wife
is not permitted as Section 198(1) read with Section 198(2) does
D not permit her to do so. In the ultimate analysis the 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. Thus no discrimination has been practised in circumscribing
the scope of Section 198(2) and fashioning it so that the right to
prosecute the adulterer is restricted to the husband of the
E adulteress but has not been extended to the wife of the
adulterer.”18
13. The decision in Revathi is a reiteration of Sowmithri Vishnu.
It applies the doctrine of equality and the prohibition against discrimination
on the ground of sex in a formalistic sense. The logic of the judgment is
F that since neither of the spouses (man or woman) can prosecute the
erring spouse, the provision does not discriminate on the ground of sex.
Apart from reading equality in a narrow confine, the judgment does not
deal with crucial aspects bearing on the constitutionality of the provision.
Revathi, like Sowmithri Vishnu does not lay down the correct legal
G principle.
C Relics of the past
“Our Massachusetts magistracy…have not been bold to put in
force the extremity of our righteous law against her. The penalty
18
H Ibid. at page 76
JOSEPH SHINE v. UNION OF INDIA 875
[DR. D. Y. CHANDRACHUD, J.]

thereof is death. But in their great mercy and tenderness of heart A
they have doomed Mistress Prynne to stand only a space of
three hours on the platform of the pillory, and then and thereafter,
for the remainder of her natural life to wear a mark of shame
upon her bosom.”19
14. Section 497 of the Indian Penal Code, 1860 makes adultery a B
punishable offence against “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.” It goes on
to state that, “in such case the wife shall not be punishable as an abettor.”
The offence applies only to the man committing adultery. A woman
committing adultery is not considered to be an “abettor” to the offence. C
The power to prosecute for adultery rests only with the husband of the
woman.
Understanding the gendered nature of Section 497 needs an inquiry into
the origins of the provision itself as well as the offence of adultery more
broadly. The history of adultery throws light upon disparate attitudes D
toward male and female infidelity, and reveals the double standard in
law and morality that has been applied to men and women.20
15. Throughout history, adultery has been regarded as an offence;
it has been treated as a religious transgression, as a crime deserving
harsh punishment, as a private wrong, or as a combination of these.21 E
The earliest recorded injunctions against adultery are found in the ancient
code of the Babylonian king Hammurabi, dating from circa 1750 B.C.
The code prescribed that a married woman caught in adultery be bound
to her lover and thrown into water so that they drown together. 22 By
contrast, Assyrian law considered adultery to be a private wrong for F
which the husband or father of the woman committing adultery could
seek compensation from her partner.23 English historian Faramerz
Dabhoiwala notes that the primary purpose of these laws was to protect
the property rights of men:

G
19
Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59
20
See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History
(2008)
21
Ibid
22
James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10
23
Ibid, at page 11
H
876 SUPREME COURT REPORTS [2018] 11 S.C.R.

A “Indeed, since the dawn of history every civilisation had prescribed
severe laws against at least some kind of sexual immorality. The
oldest surviving legal codes (c.2100-1700 BCE), drawn up by
the kings of Babylon made adultery punishable by death and
most other near Eastern and classical culture also treated it as a
serious offence…The main concern of such laws was usually to
B
uphold the honour and property rights of fathers, husbands and
higher status groups…”24
16. In Ancient Greco-Roman societies, there existed a sexual
double standard according to which adultery constituted a violation of a
husband’s exclusive sexual access to his wife, for which the law allowed
C for acts of revenge.25 In 17 B.C., Emperor Augustus passed the Lex
Julia de adulteriis coercendis, which stipulated that a father was allowed
to kill his daughter and her partner when caught committing adultery in
his or her husband’s house.26 While in the Judaic belief adultery merited
death by stoning for both the adulteress and her partner,27 Christianity
D viewed adultery more as a moral and spiritual failure than as a public
crime.28 The penalties of the Lex Julia were made more severe by
Christian emperors. Emperor Constantine, for instance, introduced the
death penalty for adultery, which allowed the husband the right to kill his
wife if she committed adultery.29 Under the Lex Julia, adultery was
primarily a female offence, and the law reflected the sentiments of upper-
E class Roman males.30
17. Once monogamy came to be accepted as the norm in Britain
between the fourth and fifth centuries, adultery came to be recognized
as a serious wrong that interfered with a husband’s “rights” over his
wife.31 The imposition of criminal sanctions on adultery was also largely
F 24
Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution
(2012), at page 5
25
David Turner, Adultery in The Oxford Encyclopaedia of Women in World History
(2008), at page 30
26
Vern Bullough, Medieval Concepts of Adultery, at page 7
27
The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.),
G Oxford, at page 27
28
Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30,
Journal of Family Law (1991), at page 46
29
Vern Bullough, Medieval Concepts of Adultery, at page 7
30
James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27
31
Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law
Journal (1986), at page 202; R. Huebner, A History of Germanic Private Law (F.
H Philbrick trans. 1918)
JOSEPH SHINE v. UNION OF INDIA 877
[DR. D. Y. CHANDRACHUD, J.]

based on ideas and beliefs about sexual morality which acquired the A
force of law in Christian Europe during the Middle Ages. 32 The
development of canon law in the twelfth century enshrined the perception
of adultery as a spiritual misdemeanour. In the sixteenth century, following
the Reformation, adultery became a crucial issue because Protestants
placed new emphasis on marriage as a linchpin of the social and moral
B
order.33 Several prominent sixteenth century reformers, including Martin
Luther and John Calvin, argued that a marriage was irreparably damaged
by infidelity, and they advocated divorce in such cases.34
Concerned with the “moral corruption” prevalent in England since the
Reformation, Puritans in the Massachusetts Bay Colony introduced the
death penalty for committing adultery.35 The strict morality of the early C
English colonists is reflected in the famous 1850 novel ‘The Scarlet Letter’
by Nathaniel Hawthorne, in which an unmarried woman who committed
adultery and bore a child out of wedlock was made to wear the letter A
(for adulterer) when she went out in public; her lover was not so tagged,
suggesting that women were punished more severely than men for D
adultery, especially when they had a child as evidence. 36
18. In 1650, England enacted the infamous Act for Suppressing
the Detestable Sins of Incest, Adultery and Fornication, which introduced
the death penalty for sex with a married woman.37 The purpose of the
Act was as follows: E
“For the suppressing of the abominable and crying sins
of…adultery… wherewith this Land is much defiled, and
Almighty God highly displeased; be it enacted...That in case any
married woman shall…be carnally known by any man (other
than her husband)…as well the man as the woman…shall suffer F
death.”
The Act was a culmination of long-standing moral concerns about sexual
transgressions, sustained endeavours to regulate conjugal matters on a
32
James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6
33
David Turner, Adultery in The Oxford Encyclopaedia of Women in World History G
(2008), at page 30
34
Ibid.
35
The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.),
Oxford, at page 30
36
James R. Mellow, Hawthorne’s Divided Genius, The Wilson Quarterly (1982)
37
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming
of American Society (1996). H
878 SUPREME COURT REPORTS [2018] 11 S.C.R.

A secular plain, and a contemporaneous political agenda of socio-moral
reform.38 It was repealed in 1660 during the Restoration. The common
law, however, was still concerned with the effect of adultery by a married
woman on inheritance and property rights. It recognized the “obvious
danger of foisting spurious offspring upon her unsuspecting husband and
bringing an illegitimate heir into his family.”39 Accordingly, secular courts
B
treated adultery as a private injury and a tort for criminal conversation
was introduced in the late 17th century, which allowed the husband to
sue his wife’s lover for financial compensation.40
19. In 19th century Britain, married women were considered to be
chattel of their husbands in law, and female adultery was subjected to
C ostracism far worse than male adultery because of the problem it could
cause for property inheritance through illegitimate children. 41
Consequently, many societies viewed chastity, together with related virtues
such as modesty, as more central components of a woman’s honor and
reputation than of a man’s.42 The object of adultery laws was not to
D protect the bodily integrity of a woman, but to allow her husband to
exercise control over her sexuality, in order to ensure the purity of his
own bloodline. The killing of a man engaged in an adulterous act with
one’s wife was considered to be manslaughter, and not murder.43 In R v
Mawgridge,44 Judge Holt wrote that:
E “…[A] man is taken in adultery with another man’s wife, if the
husband shall stab the adulterer, or knock out his brains, this is
bare manslaughter: for Jealousy is the Rage of a Man and
Adultery is the highest invasion of property.” (Emphasis
supplied)

F 38
Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans
and Revolutionaries: Essays in Seventeenth-Century History Presented to
Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281
39
Charles E. Torcia, Wharton’s Criminal Law, Section 218, (1994) at page 528
40
J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studies
in English Literature, 1500 – 1900 36(3) (1996), at page 293
41
G Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–
1800 (2009), at page 143
42
David Turner, Adultery in The Oxford Encyclopaedia of Women in World History
(2008), at page 28
43
Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-
192
44
(1707) Kel. 119
H
JOSEPH SHINE v. UNION OF INDIA 879
[DR. D. Y. CHANDRACHUD, J.]

20. In his Commentaries on the Laws of England, William A
Blackstone wrote that under the common law, “the very being or legal
existence of the woman [was] suspended during the marriage, or at
least [was] incorporated and consolidated into that of the husband: under
whose wing, protection and cover, she performe[d] everything.”45 In
return for support and protection, the wife owed her husband “consortium”
B
of legal obligations, which included sexual intercourse.46 Since adultery
interfered with the husband’s exclusive entitlements, it was considered
to be the “highest possible invasion of property,” similar to theft. 47 In
fact, civil actions for adultery evolved from actions for enticing away a
servant from a master and thus depriving the master of the quasi-
proprietary interest in his services.48 C
Faramerz Dabhoiwala notes that a man’s wife was considered to be his
property, and that another man’s “unlawful copulation” with her warranted
punishment:
“…[T]he earliest English law codes, which date from this time,
evoke a society where women were bought and sold and lived D
constantly under the guardianship of men. Even in cases of
consensual sex, its system of justice was mainly concerned with
the compensation one man should pay to another for unlawful
copulation with his female chattel.”
21. When the IPC was being drafted, adultery was not a criminal E
offence in common law. It was considered to be an ecclesiastical wrong
“left to the feeble coercion of the Spiritual Court, according to the rules
of Canon Law.”49 Lord Thomas Babington Macaulay, Chairman of the
First Law Commission of India and principal architect of the IPC,
considered the possibility of criminalizing adultery in India, and ultimately F
concluded that it would serve little purpose.50 According to Lord
45
William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages
442- 445
46
Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power:
Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at
page 161 G
47
R v. Mawgridge, (1707) Kel. 119
48
Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power:
Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at
page 161
49
Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-65
50
Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And
Adultery In India, Socio-Legal Review (2016), at page 52 H
880 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Macaulay, the possible benefits from an adultery offence could be better
achieved through pecuniary compensation.51 Section 497 did not find a
place in the first Draft Penal Code prepared by Lord Macaulay. On an
appraisal of the facts and opinions collected from all three Presidencies
about the feasibility criminalizing adultery, he concluded in his Notes to
the IPC that:
B
“…All the existing laws for the punishment of adultery are
altogether inefficacious for the purpose of preventing injured
husbands of the higher classes from taking the law into their
own hands; secondly; that scarcely any native of higher classes
ever has recourse to the courts of law in a case of adultery for
C redress against either his wife, or her gallant; thirdly, that the
husbands who have recourse in case of adultery to the Courts of
law are generally poor men whose wives have run away, that
these husbands seldom have any delicate feelings about the
intrigue, but think themselves injured by the elopement, that they
D consider wives as useful members of their small households,
that they generally complain not of the wound given to their
affections, not of the stain on their honor , but of the loss of a
menial whom they cannot easily replace, and that generally their
principal object is that the women may be sent back.” These
things being established, it seems to us that no advantage
E is to be expected from providing a punishment for adultery.
We think it best to treat adultery merely as a civil injury.”52
(Emphasis supplied)
22. The Law Commissioners, in their Second Report on the Draft
Penal Code, disagreed with Lord Macaulay’s view. Placing heavy
F reliance upon the status of women in India, they concluded that:
“While we think that the offence of adultery ought not to be
omitted from the code, we would limit its cognizance to adultery
committed with a married woman, and considering that there is
much weight in the last remark in note Q, regarding the condition
G of the women, in this country, in deference to it, we would render
the male offender alone liable to punishment. We would, however,
put the parties accused of adultery on trial “together”, and

51
Ibid.
52
Macaulay’s Draft Penal Code (1837), Note Q
H
JOSEPH SHINE v. UNION OF INDIA 881
[DR. D. Y. CHANDRACHUD, J.]

empower the Court in the event of their conviction to pronounce A
a decree of divorce against the guilty woman, if the husband
sues for it, at the same time that her paramour is sentenced to
punishment by imprisonment or fine.”53
The Law Commissioners’ decision to insert Section 497 into the IPC
was rooted in their concern about the possibility of the “natives” resorting B
to illegal measures to avenge the injury in cases of adultery:
“The backwardness of the natives to have recourse to the courts
of redress in cases of adultery, [Colonel Sleeman] asserts, “arises
from the utter hopelessness on their part of ever getting a
conviction in our courts upon any evidence that such cases admit C
of;” that is to say, in courts in which the Mahommedan law is
observed. “The rich man…not only feels the assurance that he
could not get a conviction, but dreads the disgrace of appearing
publicly in one court after another, to prove…his own shame
and his wife’s dishonor. He has recourse to poison secretly, or
with his wife’s consent; and she will generally rather take it than D
be turned out into the streets a degraded outcast. The seducer
escapes with impunity, he suffers nothing, while his poor victim
suffers all that human nature is capable of enduring…The silence
of the Penal Code will give still greater impunity to the seducers,
while their victims will, in three cases out of four, be murdered, E
or driven to commit suicide. Where husbands are in the habit of
poisoning their guilty wives from the want of legal means of
redress, they will sometimes poison those who are suspected
upon insufficient grounds, and the innocent will suffer.”54
Section 497 and Section 198 are seen to treat men and women unequally, F
as women are not subject to prosecution for adultery, and women cannot
prosecute their husbands for adultery. Additionally, if there is “consent
or connivance” of the husband of a woman who has committed adultery,
no offence can be established. In its 42nd Report, the Law Commission
of India considered the legislative history of Section 497 and the purported
benefit of criminal sanctions for adultery. The Committee concluded G

53
Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law
Commission of India, Forty-second Report: Indian Penal Code, at page 365
54
A Penal Code prepared by The Indian Law Commissioners (1838), The Second
Report on the Indian Penal Code, at page 74
H
882 SUPREME COURT REPORTS [2018] 11 S.C.R.

A that, “though some of us were personally inclined to recommend repeal
of the section, we think on the whole that the time has not yet come for
making such a radical change in the existing position.”55 It recommended
that Section 497 be retained, but with a modification to make women
who commit adultery liable as well.
B 23. In its 156th Report, the Law Commission made a proposal
which it believed reflected the “‘transformation’ which the society has
undergone,” by suggesting removing the exemption from liability for
women under Section 497.56 In 2003, the Justice Malimath Committee
recommended that Section 497 be made gender-neutral, by substituting
the words of the provision with “whosoever has sexual intercourse with
C the spouse of any other person is guilty of adultery.”57 The Committee
supported earlier proposals to not repeal the offence, but to equate liability
for the sexes:
“The object of the Section is to preserve the sanctity of marriage.
Society abhors marital infidelity. Therefore, there is no reason
D for not meting out similar treatment to the wife who has sexual
intercourse with a man (other than her husband).”58
Neither the recommendations of the Law Commission nor those of the
Malimath Committee have been accepted by the Legislature. Though
women are exempted from prosecution under Section 497, the underlying
E notion upon which the provision rests, which conceives of women as
property, is extremely harmful. The power to prosecute lies only with
the husband (and not to the wife in cases where her husband commits
adultery), and whether the crime itself has been committed depends on
whether the husband provides “consent for the allegedly adulterous act.”
24. Women, therefore, occupy a liminal space in the law: they
F cannot be prosecuted for committing adultery, nor can they be aggrieved
by it, by virtue of their status as their husband’s property. Section 497 is
also 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 under Section
G 497 has been deeply criticized by feminist scholars, who argue that such
an understanding of the position of women is demeaning and fails to

55
Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326
56
Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172
57
Report of the Committee on Reforms of Criminal Justice System (2003), at page 190
58
H Ibid.
JOSEPH SHINE v. UNION OF INDIA 883
[DR. D. Y. CHANDRACHUD, J.]

recognize them as equally autonomous individuals in society.59 Effectively, A
Indian jurisprudence has interpreted the constitutional guarantee of sex
equality as a justification for differential treatment: to treat men and
women differently is, ultimately, to act in women’s interests.60 The status
of Section 497 as a “special provision”61 operating for the benefit of
women, therefore, constitutes a paradigmatic example of benevolent
B
patriarchy.
25. Throughout history, the law has failed to ask the woman
question.62 It has failed to interrogate the generalizations or stereotypes
about the nature, character and abilities of the sexes on which laws rest,
and how these notions affect women and their interaction with the law.
A woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive C
sexual possession may be reflective of the antiquated social and sexual
mores of the nineteenth century, but they cannot be recognized as being
so today. It is not the “common morality” of the State at any time in
history, but rather constitutional morality, which must guide the law. In
any democracy, constitutional morality requires the assurance of certain D
rights that are indispensable for the free, equal, and dignified existence
of all members of society. A commitment to constitutional morality
requires us to enforce the constitutional guarantees of equality before
law, non-discrimination on account of sex, and dignity, all of which are
affected by the operation of Section 497.
D Across frontiers E
26. The last few decades have been characterized by numerous
countries around the world taking measures to decriminalize the offence
of adultery due to the gender discriminatory nature of adultery laws as
well as on the ground that they violate the right to privacy. However,
progressive action has primarily been taken on the ground that provisions F
penalising adultery are discriminatory against women either patently on
the face of the law or in their implementation. Reform towards achieving
a more egalitarian society in practice has also been driven by active
59
Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And
Adultery In India, Socio-Legal Review (2016), at page 63 G
60
Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with
Law in India (1996)
61
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
62
The ‘Woman Question’ was one of the great issues that occupied the middle of the
nineteenth century, namely the social purpose of women. It is used as a tool to
enquire into the status of women in the law and how they interact with and are
affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law H
Review (1990)
884 SUPREME COURT REPORTS [2018] 11 S.C.R.

A measures taken by the United Nations and other international human
rights organizations, where it has been emphasized that even seemingly
gender-neutral provisions criminalising adultery cast an unequal burden
on women:63
“Given continued discrimination and inequalities faced by women,
B including inferior roles attributed to them by patriarchal and
traditional attitudes, and power imbalances in their relations with
men, the mere fact of maintaining adultery as a criminal offence,
even when it applies to both women and men, means in practice
that women mainly will continue to face extreme vulnerabilities,
and violation of their human rights to dignity, privacy and equality.”
C The abolishing of adultery has been brought about in equal measure by
legislatures and courts. When decisions have been handed down by the
judiciary across the world, it has led to the creation of a rich body of
transnational jurisprudence. This section will focus on a few select
comparative decisions emanating from the courts of those countries
D where the provision criminalizing adultery has been struck down through
judicial action. The decisions of these courts reflect how the treatment
of the law towards adultery has evolved with the passage of time and in
light of changing societal values.
27. In 2015, the South Korean Constitutional Court,64 by a majority
E of 7-2 struck down Article 241 of the Criminal Law; a provision which
criminalized adultery with a term of imprisonment of two years as
unconstitutional.In doing so, South Korea joined a growing list of countries
in Asia and indeed around the world that have taken the measure of
effacing the offence of adultery from the statute books, considering
evolving public values and societal trends. The Constitutional Court had
F deliberated upon the legality of the provision four times previously65, but
chose to strike it down when it came before it in 2015, with the Court’s
judgement acknowledging the shifting public perception of individual rights
in their private lives.
63
U N Working Group on Women’s Human Rights: Report (18 October, 2012), available
G a t : h t t p : / / n e w s a r c h i v e . o h c h r. o r g / E N / N e w s E v e n t s / P a g e s /
DisplayNews.aspx?NewsID=12672&LangID=E
64
Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court
(February 26, 2015), available at http://english.ccourt.go.kr/cckhome/eng/decisions/
majordecisions/majorDetail.do
65
Firstpost, South Korean court abolishes law that made adultery illegal, (February
26, 2015), available at https://www.firstpost.com/world/south-korean-court-
H abolishes-law-saying-adultery-is-illegal-2122935.html
JOSEPH SHINE v. UNION OF INDIA 885
[DR. D. Y. CHANDRACHUD, J.]

The majority opinion of the Court was concurred with by five of the A
seven judges 66 who struck down the provision. The majority
acknowledged that the criminal provision had a legitimate legislative
purpose in intending “to promote the marriage system based on good
sexual culture and practice and monogamy and to preserve marital fidelity
between spouses.” However, the Court sought to strike a balance
B
between the legitimate interest of the legislature in promoting the institution
of marriage and marital fidelity vis-à-vis the fundamental right of an
individual to self-determination, which included sexual-self-determination,
and was guaranteed under Article 10 of their Constitution.67 The Court
held:
“The right to self-determination connotes the right to sexual self- C
determination that is the freedom to choose sexual activities and
partners, implying that the provision at issue restricts the right to
sexual self-determination of individuals. In addition, the provision
at Issue also restricts the right to privacy protected under Article
17 of the Constitution in that it restricts activities arising out of D
sexual life belonging to the intimate private domain.”
The Court used the test of least restrictiveness, and began by
acknowledging that there no longer existed public consensus on the
criminalization of adultery, with the societal structure having changed
from holding traditional family values and a typeset role of family
members to sexual views driven by liberal thought and individualism. E
While recognizing that marital infidelity is immoral and unethical, the
Court stated that love and sexual life were intimate concerns, and they
should not be made subject to criminal law.Commenting on the balance
between an individual’s sexual autonomy vis-à-vis societal morality, the
Court remarked: F
“…the society is changing into one where the private interest of
sexual autonomy is put before the social interest of sexual morality
and families from the perspective of dignity and happiness of
individuals.”68

66
G
Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong,
Justice Seo Ki-Seog and Justice Cho Yong-Ho (Adultery is Unconstitutional)
67
Article 10 of the South Korean Constitution “All citizens are assured of human
worth and dignity and have the right to pursue happiness. It is the duty of the State
to confirm and guarantee the fundamental and inviolable human rights of individuals.”
68
Supra, note 64, Part V- A (3)(1) (‘Change in Public’s Legal Awareness’ under the head
of ‘Appropriateness of Means and Least Restrictiveness’) H
886 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Next, the Court analysed the appropriateness and effectiveness of criminal
punishment in curbing the offence of adultery. Addressing the question
of whether adultery should be regulated, the Court stated that modern
criminal law dictated that the State should not seek to interfere in an act
that is not socially harmful or deleterious to legal interests, simply because
it is repugnant to morality. Moreover, it held that the State had no business
B
in seeking to control an individual’s actions which were within the sphere
of his or her constitutionally protected rights of privacy and self-
determination.
Moving on to the effectiveness of the provision at hand, the Court
remarked that criminalizing adultery did not help save a failing marriage.
C The Court remarked that it was obvious that once a spouse was accused
of adultery, the consequence was generally intensified spousal conflict
as opposed to the possibility of family harmony:
“Existing families face breakdown with the invoking of the right
to file an accusation. Even after cancellation of the accusation,
D it is difficult to hope for emotional recovery between spouses.
Therefore, the adultery crime can no longer contribute to
protecting the marital system or family order. Furthermore, there
is little possibility that a person who was punished for adultery
would remarry the spouse who had made an accusation against
E himself/herself. It is neither possible to protect harmonious family
order because of the intensified conflict between spouses in the
process of criminal punishment of adultery.”69
Addressing the concern that an abolition of a penal consequence would
result in “chaos in sexual morality” or an increase of divorce due to
F adultery, the Court concluded that there was no data at all to support
these claims in countries where adultery is repealed, stating:
“Rather, the degree of social condemnation for adultery has been
reduced due to the social trend to value the right to sexual self-
determination and the changed recognition on sex, despite of the
G punishment of adultery. Accordingly, it is hard to anticipate a
general and special deterrence effect for adultery from the
perspective of criminal policy as it loses the function of regulating
behaviour.”70
69
Supra, note 64, Part V- A (3)(3) (‘Effectiveness of Criminal Punishment’, under the
head of ‘Appropriateness of Means and Least Restrictiveness’)
70
H Ibid.
JOSEPH SHINE v. UNION OF INDIA 887
[DR. D. Y. CHANDRACHUD, J.]

The Court also analysed the argument that adultery provisions protected A
women:
“It is true that the existence of adultery crimes in the past Korean
society served to protect women. Women were socially and
economically underprivileged, and acts of adultery were mainly
committed by men. Therefore, the existence of an adultery crime B
acted as psychological deterrence for men, and, furthermore,
enabled female spouses to receive payment of compensation
for grief or divided assets from the male spouse on the condition
of cancelling the adultery accusation.
However, the changes of our society diluted the justification of C
criminal punishment of adultery. Above all, as women’s earning
power and economic capabilities have improved with more active
social and economic activities, the premise that women are the
economically disadvantaged does not apply to all married
couples.”
D
Finally, the Court concluded its analysis by holding that the interests of
enforcing monogamy, protecting marriage and promoting marital fidelity,
balanced against the interference of the State in the rights to privacy
and sexual autonomy were clearly excessive and therefore failed the
test of least restrictiveness.71
E
28. In 2007, the Ugandan Constitutional Court in Law Advocacy
for Women in Uganda v Attorney General of Uganda72, was called
upon to rule on the constitutionality of Section 154 of the Penal Code, on,
the grounds that it violated various protections granted by the Ugandan
Constitution and meted out discriminatory treatment between women
and men. The law as it stood allowed a married man to have a sexual F
relationship with an unmarried woman. Moreover, only a man could be
guilty of the offence of adultery when he had sexual intercourse with a
married woman. The same provision, however, penalized a married woman
who engaged in a sexual relationship with an unmarried or married man
outside of the marriage. The penalties for the offence also prescribed a
G
much stricter punishment for women as compared to their male
71
Supra, note 64, Part V- A (5) (‘Balance of Interests & Conclusion’)
72
Constitutional Petitions Nos. 13 /05 /& 05 /06 inLaw Advocacy for Women in
Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available
at
https://ulii.org/ug/judgment/constitutional-court/2007/1 H
888 SUPREME COURT REPORTS [2018] 11 S.C.R.

A counterparts.73 The challenge was brought primarily under Article 21 of
the Ugandan Constitution, which guaranteed equality under the law,
Article 24 which mandates respect for human dignity and protection
from inhuman treatment and Article 33(1), which protected the rights of
women under the Constitution. 74
B The Respondent prayed that the Court consider making the provision of
adultery equal in its treatment of men and women, instead of striking it
down completely. However, in its holding, the Court denied this request,
holding it could not prescribe a punishment under penal law to change
the statute. The Court held that Section 154 of the Penal Code was
wholly unconstitutional as being violative of the provisions of the
C Constitution, and remarked:
“...the respondent did not point out to us areas that his Court can
or should modify and adapt to bring them in conformity with the
provisions of the Constitution. The section is a penal one and this
Court in our considered opinion cannot create a sentence that
D the courts can impose on adulterous spouses.
Consequently, it is our finding that the provision of section 154 of
the Penal Code Act is inconsistent with the stated provisions of
the Constitution and it is void.”75
29. In 2015, in DE v RH,76 the Constitutional Court of South Africa
E held that an aggrieved spouse could no longer seek damages against a
third party in cases of adultery. Madlanga J poignantly remarked on the
preservation of marriage:
“…although marriage is ‘a human institution which is regulated
by law and protected by the Constitution and which, in turn,
creates genuine legal duties . . . Its essence . . . consists in the
F
readiness, founded in morals, of the parties to the marriage to
create and to maintain it’. If the parties to the marriage have lost
that moral commitment, the marriage will fail and punishment
meted out to a third party is unlikely to change that.”77
73
Reuters: ‘Uganda scraps “sexist” adultery law’, (April 5, 2007), available at https:/
G /www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-
idUSL0510814320070405
74
Constitutional Petitions Nos. 13 /05 /& 05 /06 inLaw Advocacy for Women in
Uganda v. Attorney General of Uganda, [2007] UGCC 1 (5 April, 2007), available
at https://ulii.org/ug/judgment/constitutional-court/2007/1
75
Ibid.
76
DE v RH, [2015] ZACC 18
H 77
Ibid, at para 34
JOSEPH SHINE v. UNION OF INDIA 889
[DR. D. Y. CHANDRACHUD, J.]

The decisions of the US Supreme Court bearing on the issue of privacy A
have been analysed in an incisive article, titled “For Better or for Worse:
Adultery, Crime and The Constitution”78, by Martin Siegel. He presents
three ways in which adultery implicates the right to privacy. The first is
that adultery must be viewed as a constitutionally protected marital choice.
Second, that certain adulterous relationships are protected by the freedom
B
of association and finally, that adultery constitutes an action which is
protected by sexual privacy.79 A brief study is also undertaken on whether
action penalizing adultery constitutes a legitimate interest of the State.
The first privacy interest in adultery is the right to marital choice. The
U.S. Supreme Court has upheld the values of ‘fundamental liberty’,
‘freedom of choice’ and ‘the ‘right to privacy’ in marriage. With this C
jurisprudence, the author argues, it would be strange if a decision to
commit adultery is not a treated as a matter of marriage and family life
as expressed in Cleveland Board80, ‘an act occurring in marriage’, as
held in Griswold81 or a ‘matter of marriage and family life’ as elucidated
inCarey.82 D
Siegel posits that a decision to commit adultery is a decision ‘relating to
marriage and family relationships’ and therefore, falls within the domain
of protected private choices. He observes that the essence of the offence
is in fact the married status of one of the actors, and the mere fact that
the commission of the act consisted of a mere sexual act or a series of E
them is legally irrelevant. If the argument that adultery, though
unconventional, is an act related to marriage and therefore fundamentally
private is accepted, then it deserves equal protection. Siegel cites
Laurence Tribe, on accepting the ‘unconventional variants’ that also form
a part of privacy:
F
“Ought the “right to marriage,” as elucidated by Griswold, Loving
v. Virginia, Zablocki, Boddie v. Connecticut and Moore, also
include marriage’s “unconventional variants”-in this case the
adulterous union?”83
78
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
G
Journal of Family Law, Vol.30, (1991) 45
79
Ibid, at page 46
80
Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)
81
Griswold, 381 U.S. 1 (1967)
82
Carey, v. Population Serv. Int’l, 431 U.S. 678
83
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
Journal of Family Law, Vol.30, (1991) 70 H
890 SUPREME COURT REPORTS [2018] 11 S.C.R.

A The mere fact that adultery is considered unconventional in society does
not justify depriving it of privacy protection. The freedom of making
choices also encompasses the freedom of making an ‘unpopular’ choice.
This was articulated by Justice Blackmun in his dissent in Hardwick84:
“A necessary corollary of giving individuals freedom to choose
B how to conduct their lives is acceptance of the fact that different
individuals will make different choices.”85
Siegel concludes that the privacy protections afforded to marriage must
extend to all choices made within the marriage:
“The complexity and diversity among marriages make it all the
C more important that the privacy associated with that institution
be construed to include all kinds of marriages, sexually exclusive
as well as open, ‘good’, as well as ‘bad’.”86
Siegel then proceeds to examine the next privacy interest in adultery,
that of the right to association. The right to freedom of association he
states is ‘a close constitutional relative of privacy’87, and they often
D
interact in an intertwined manner. Siegel proceeds to explain that adultery
must not simply be looked at as an act of consensual adult sexual activity,
as sexual activity may simply be one element in a continuum of
interactions between people:
“Sexual activity may be preliminary or incidental to a developing
E association, or it may be its final culmination and solidification.
In either case, it is simply one more element of the relationship.
Two people may have sex upon first meeting. In this case,
associational interests seem less important, although “loveless
encounters are sometimes prerequisites for genuine love
F relationships; to forbid the former is, therefore, to inhibit the
latter.”’88
Next, Siegel examines the plausible protection of adultery through the
lens of the freedom of expression. Since the act of engaging in sexual
activity can be interpreted as being expressive, Siegel claims adultery
might also implicate First Amendment rights. In support he cites a body
G
84
Hardwick, 478 U.S.205
85
Ibid, at page 206
86
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
Journal of Family Law, Vol.30, (1991) 74
87
Ibid, at page 77
88
H Ibid, at, page 78
JOSEPH SHINE v. UNION OF INDIA 891
[DR. D. Y. CHANDRACHUD, J.]

of case law89,where courts have held that First Amendment rights are A
not limited to merely verbal expression but also encompass the right to
‘expressive association’.
In concluding his section on the right to associate, Siegel warns against
the dangers of classifying adultery solely as a sexual activity, as doing so
would be akin to protecting a part of the relationship and criminalizing B
the other. This would be manifestly unjust:
“It is difficult, both theoretically and practically, to single out the
sexual contacts two people may have from the rest of their
relationship- to criminalize the one and constitutionally protect
as fundamental the other”.90
C
Lastly, Siegel discusses the connection between adultery and the right to
sexual privacy. It is accepted that a right to privacy safeguards an
individual’s deeply personal choices which includes a recognition accorded
to the inherently private nature of all consensual adult sexual activity.91
This understanding of sexual privacy found favour with the U.S. Supreme
Court, which in Thornburgh v American College of Obstetricians D
and Gynaecologists92 quoted Charles Fried with approval:
“The concept of privacy embodies the moral fact that a person
belongs to himself and not to others nor to society as a whole.”93
Siegel reiterates the underlying intangible value of adult consensual sexual
activity: E
“The real importance of sexuality to humans, more so in today’s
world of effective birth control than ever, lies in the possibilities
for self-realization and definition inherent in sexual choices. Sexual
experience offers “self-transcendence, expression of private
fantasy, release of inner tensions, and meaningful and acceptable F
expression of regressive desires to be again the free child -
unafraid to lose control, playful, vulnerable, spontaneous, sensually
loved.”94
89
Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)
90
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
Journal of Family Law, Vol.30, (1991) 78 G
91
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
Journal of Family Law, Vol.30, (1991) 82
92
Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747
(1986)
93
Ibid, at Page 777
94
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
Journal of Family Law, Vol.30, (1991) at page 85 H
892 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Reflecting on the relationship between marital privacy and associational
freedom, Spiegel remarks the “heterogeneity of experience”, resulting
in a variety of choices, necessarily include the adulterous union which
must be protected since it is unrealistic to expect all individuals to conform
to society’s idea of sexuality:
B “Because sex is so much a part of our personhood, we should
not expect that people different in so many other ways will be
identical sexually. For some, adultery is a cruel betrayal, while
for others it is just comeuppance for years of spousal neglect. In
some marriages, sex is the epitome of commitment, while in others
spouses jointly and joyfully dispense with sexual monogamy.” 95
C In concluding the author states that the foregoing three-layered analysis
left no room for doubt that adultery was a matter of marriage. It therefore
deserved to be protected like all other affairs occurring in marriage and
implicated routine privacy-based freedoms, and it was imperative to treat
is as such. Spiegel concludes by quoting the U.S. Supreme Court in
D Eisenstadt v Braid, on the importance of protecting the power to make
a ‘bad’ choice in a marriage:
“A marriage’s privacy and autonomy are the best routes to
safeguarding liberty and pluralism. This is no less true when the
power to choose, as it inevitably will, results in bad choices. It is
E a confidence in nothing less than the theory underscoring our
entire political order: Our system of government requires that
we have faith in the ability of the individual to decide wisely, if
only he is fully appraised of the merits of the controversy.”96
While acknowledging the interest that the State has in preserving the
institution of marriage, Siegel precisely points out the inefficacy of
F attaching criminal sanctions to adultery in the following words:
“Even if we accept that a state is trying to foster the interests of
specific deceived spouses by its laws criminalizing adultery, it is
impossible to believe that a criminal penalty imposed on one of
the spouses would somehow benefit a marriage instead of
G representing the final nail in its coffin. And if deterrence of
adultery is the goal, then the state’s failure to arrest and prosecute
offenders has long since removed any fear of legal sanction.”97
95
Ibid, at Page 86
96
Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)
97
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,
H Journal of Family Law, Vol.30, (1991) 89
JOSEPH SHINE v. UNION OF INDIA 893
[DR. D. Y. CHANDRACHUD, J.]

Deborah L Rhode in her book titled “Adultery” argues that “intermittent A
idiosyncratic invocations of adultery prohibitions do little to enforce marital
vows or reinforce confidence in the rule of law. There are better ways
to signal respect for the institution of marriage and better uses of law
enforcement than policing private, consensual sexual activity.” 98
E Confronting patriarchy B
“Norms and ideals arise from the yearning that it is an
expression of freedom: it does not have to be this way, it
could be otherwise.”99
30. The petitioner urged that (i) The full realisation of the ideal of
equality enshrined in Article 14 of the Constitution ought to be the C
endeavour of this Court; (ii) the operation of Section 497 is a denial of
equality to women in marriage; and (iii) the provision is manifestly arbitrary
and amounts to a violation of the constitutional guarantee of substantive
equality.
The act which constitutes the offence under Section 497 of the Penal D
Code is a man engaging in sexual intercourse with a woman who is the
“wife of another man”. For the offence to arise, the man who engages
in sexual intercourse must either know or have reason to believe that the
woman is married. Though a man has engaged in sexual intercourse
with a woman who is married, the offence of adultery does not come E
into being where he did so with the consent or connivance of her husband.
These ingredients of Section 497 lay bare several features which bear
on the challenge to its validity under Article 14. The fact that the sexual
relationship between a man and a woman is consensual is of no
significance to the offence, if the ingredients of the offence are F
established. What the legislature has constituted as a criminal offence
is the act of sexual intercourse between a man and a woman who is “the
wife of another man”. No offence exists where a man who has a
subsisting marital relationship engages in sexual intercourse with a single
woman. Though adultery is considered to be an offence relating to
marriage, the legislature did not penalise sexual intercourse between a G
married man and a single woman. Even though the man in such a case
has a spouse, this is considered to be of no legal relevance to defining
98
Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)
99
Iris Marion Young, Justice and the Politics of Difference, Princeton University
Press, 1990 H
894 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the scope of the offence. That is because the provision proceeds on the
notion that the woman is but a chattel; the property of her husband. The
fact that he is engaging in a sexual relationship outside marriage is of no
consequence to the law. The woman with whom he is in marriage has
no voice of her own, no agency to complain. If the woman who is
involved in the sexual act is not married, the law treats it with unconcern.
B
The premise of the law is that if a woman is not the property of a married
man, her act would not be deemed to be ‘adulterous’, by definition.
31. The essence of the offence is that a man has engaged in an
act of sexual intercourse with the wife of another man. But if the man to
whom she is married were to consent or even to connive at the sexual
C relationship, the offence of adultery would not be established. For, in the
eyes of law, in such a case it is for the man in the marital relationship to
decide whether to agree to his spouse engaging in a sexual act with
another. Indeed, even if the two men (the spouse of the woman and the
man with whom she engages in a sexual act) were to connive, the offence
D of adultery would not be made out.
32. Section 497 is destructive of and deprives a woman of her
agency, autonomy and dignity. If the ostensible object of the law is to
protect the ‘institution of marriage’, it provides no justification for not
recognising the agency of a woman whose spouse is engaged in a sexual
E relationship outside of marriage. She can neither complain nor is the
fact that she is in a marital relationship with a man of any significance to
the ingredients of the offence. The law also deprives the married woman
who has engaged in a sexual act with another man, of her agency. She
is treated as the property of her husband. That is why no offence of
adultery would be made out if her husband were to consent to her sexual
F relationship outside marriage. Worse still, if the spouse of the woman
were to connive with the person with whom she has engaged in sexual
intercourse, the law would blink. Section 497 is thus founded on the
notion that a woman by entering upon marriage loses, so to speak, her
voice, autonomy and agency. Manifest arbitrariness is writ large on the
G provision.
33. The test of manifest arbitrariness is rooted in Indian
jurisprudence. In E P Royappa v State of Tamil Nadu100,Justice
Bhagwati characterised equality as a “dynamic construct” which is
contrary to arbitrariness:
100
H (1974) 4 SCC 3
JOSEPH SHINE v. UNION OF INDIA 895
[DR. D. Y. CHANDRACHUD, J.]

“85…Now, what is the content and reach of this great equalising A
principle? It is a founding faith, to use the words of Bose. J., “a
way of life”, and it must not be subjected to a narrow pedantic
or lexicographic approach. We cannot countenance any attempt
to truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a dynamic
B
concept with many aspects and dimensions and it cannot
be “cribbed, cabined and confined” within traditional and
doctrinaire limits. From a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule
of law in a republic while the other, to the whim and caprice C
of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of
Article 14…” 101 (Emphasis supplied)
The Constitution Bench in Shayara Bano v Union of India102 held the D
practice of Triple Talaq to be unconstitutional. Justice Rohinton Nariman,
in his concurring opinion, applied the test of manifest arbitrariness to
hold that the practice does not pass constitutional muster:
“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary E
is obviously unreasonable and being contrary to the rule
of law, would violate Article 14. Further, there is an apparent
contradiction in the three-Judge Bench decision
in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC
709] when it is said that a constitutional challenge can succeed
on the ground that a law is “disproportionate, excessive or F
unreasonable”, yet such challenge would fail on the very ground
of the law being “unreasonable, unnecessary or unwarranted”.
The arbitrariness doctrine when applied to legislation obviously
would not involve the latter challenge but would only involve a
law being disproportionate, excessive or otherwise being G
manifestly unreasonable. All the aforesaid grounds, therefore,
do not seek to differentiate between State action in its various
forms, all of which are interdicted if they fall foul of the
101
Ibid. at page 38
102
(2017) 9 SCC 1 H
896 SUPREME COURT REPORTS [2018] 11 S.C.R.

A fundamental rights guaranteed to persons and citizens in Part III
of the Constitution.”103 (Emphasis supplied)
On the application of the test of manifest arbitrariness to invalidate
legislation, the learned Judge held thus:
“ 101…there is no rational distinction between the two types of
B legislation when it comes to this ground of challenge under Article
14. The test of manifest arbitrariness, therefore, as laid down in
the aforesaid judgments would apply to invalidate legislation as
well as subordinate legislation under Article 14. Manifest
arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining
C principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary.
We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to
negate legislation as well under Article 14.”104
D 34. The decision in Shayara Bano, holds that legislation or state
action which is manifestly arbitrary would have elements of caprice and
irrationality and would be characterized by the lack of an adequately
determining principle. An “adequately determining principle” is a principle
which is in consonance with constitutional values. With respect to criminal
E legislation, the principle which determines the “act” that is criminalized
as well as the persons who may be held criminally culpable, must be
tested on the anvil of constitutionality. The principle must not be
determined by majoritarian notions of morality which are at odds with
constitutional morality.
In Navtej Singh Johar v Union of India, (“Navtej”)105 Justice Indu
F Malhotra emphasized the need for a “sound” or “rational principle”
underlying a criminal provision:
“ …Section 377 insofar as it criminalises consensual sexual acts
between adults in private, is not based on any sound or rational
principle…
G Further, the phrase “carnal intercourse against the order of
nature” in Section 377 as a determining principle in a penal
provision, is too open-ended, giving way to the scope for misuse
against members of the LGBT community.”
103
Ibid. at pages 91-92
104
H Ibid. at page 99
105
Writ Petition (Criminal) No. 76 OF 2016
JOSEPH SHINE v. UNION OF INDIA 897
[DR. D. Y. CHANDRACHUD, J.]

35. The hypothesis which forms the basis of the law on adultery A
is the subsistence of a patriarchal order. Section 497 is based on a notion
of morality which fails to accord with the values on which the Constitution
is founded. The freedoms which the Constitution guarantees inhere in
men and women alike. In enacting Section 497, the legislature made an
ostensible effort to protect the institution of marriage. ‘Ostensible’ it is,
B
because the provision postulates a notion of marriage which subverts
the equality of spouses. Marriage in a constitutional regime is founded
on the equality of and between spouses. Each of them is entitled to the
same liberty which Part III guarantees. Each of them is entitled to take
decisions in accordance with his and her conscience and each must
have the ability to pursue the human desire for fulfilment. Section 497 is C
based on the understanding that marriage submerges the identity of the
woman. It is based on a notion of marital subordination. In recognising,
accepting and 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
D
is founded – liberty, dignity and equality – cannot allow such a view of
marriage. Section 497 suffers from manifest arbitrariness.
36. While engrafting the provision into Chapter XX of the Penal
Code – “of offences relating to marriage” – the legislature has based
the offence on an implicit assumption about marriage. The notion which
the law propounds and to which it imposes the sanctions of penal law is E
that the marital tie subordinates the role and position of the woman. In
that view of marriage, the woman is bereft of the ability to decide, to
make choices and give free expression to her personality. Human
sexuality is an essential aspect of identity. Choices in matters of sexuality
are reflective of the human desire for expression. Sexuality cannot be F
construed purely as a physiological attribute. In its associational attributes,
it links up with the human desire to be intimate with a person of one’s
choice. Sharing of physical intimacies is a reflection of choice. In allowing
individuals to make those choices in a consensual sphere, the Constitution
acknowledges that even in the most private of zones, the individual must
have the ability to make essential decisions. Sexuality cannot be dis- G
associated from the human personality. For, to be human involves the
ability to fulfil sexual desires in the pursuit of happiness. Autonomy in
matters of sexuality is thus intrinsic to a dignified human existence. Human
dignity both recognises and protects the autonomy of the individual in
making sexual choices. The sexual choices of an individual cannot H
898 SUPREME COURT REPORTS [2018] 11 S.C.R.

A obviously be imposed on others in society and are premised on a voluntary
acceptance by consenting parties. Section 497 denudes the woman of
the ability to make these fundamental choices, in postulating that it is
only the man in a marital relationship who can consent to his spouse
having sexual intercourse with another. Section 497 disregards the sexual
autonomy which every woman possesses as a necessary condition of
B
her existence. Far from being an equal partner in an equal relationship,
she is subjugated entirely to the will of her spouse. The provision is
proffered by the legislature as an effort to protect the institution of
marriage. But it proceeds on a notion of marriage which is one sided
and which denies agency to the woman in a marital tie. The ability to
C make choices within marriage and on every aspect concerning it is a
facet of human liberty and dignity which the Constitution protects. In
depriving the woman of that ability and recognising it in the man alone,
Section 497 fails to meet the essence of substantive equality in its
application to marriage. Equality of rights and entitlements between parties
to a marriage is crucial to preserve the values of the Constitution. Section
D
497 offends that substantive sense of equality and is violative of Article 14.
37. The procedural law which has been enacted in Section 198 of
the Code of Criminal Procedure 1973 re-enforces the stereotypes implicit
in Section 497. Cognizance of an offence under Chapter XX of the
Penal Code can be taken by a Court only upon a complaint of a person
E aggrieved. In the case of an offence punishable under Section 497, only
the husband of the woman is deemed to be aggrieved by the offence. In
any event, once the provisions of Section 497 are held to offend the
fundamental rights, the procedure engrafted in Section 198 will cease to
have any practical relevance.
F 38. Section 497 amounts to a denial of substantive equality. The
decisions in Sowmithri and Revathi espoused a formal notion of equality,
which is contrary to the constitutional vision of a just social order. Justness
postulates equality. In consonance with constitutional morality, substantive
equality is “directed at eliminating individual, institutional and systemic
G discrimination against disadvantaged groups which effectively undermines
their full and equal social, economic, political and cultural participation in
society.”106 To move away from a formalistic notion of equality which
disregards social realities, the Court must take into account the impact
of the rule or provision in the lives of citizens.
106
Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality
H (S.Martin and K.Mahoney (eds.) (1987)
JOSEPH SHINE v. UNION OF INDIA 899
[DR. D. Y. CHANDRACHUD, J.]

The primary enquiry to be undertaken by the Court towards the realisation A
of substantive equality is to determine whether the provision contributes
to the subordination of a disadvantaged group of individuals.107 The
disadvantage must be addressed not by treating a woman as ‘weak’ but
by construing her entitlement to an equal citizenship. The former
legitimizes patronising attitudes towards women. The latter links true
B
equality to the realisation of dignity. The focus of such an approach is
not simply on equal treatment under the law, but rather on the real impact
of the legislation.108 Thus, Section 497 has to be examined in the light of
existing social structures which enforce the position of a woman as an
unequal participant in a marriage.
Catherine Mackinnon implores us to look more critically at the reality of C
this family sphere, termed ‘‘personal,’’ and view the family as a “crucible
of women’s unequal status and subordinate treatment sexually, physically,
economically, and civilly.”109 In a social order which has enforced
patriarchal notions of sexuality upon women and which treats them as
subordinate to their spouses in heterosexual marriages, Section 497 D
perpetuates an already existing inequality.
39. Facially, the law may be construed to operate as an exemption
from criminal sanctions. However, when viewed in the context of a
social structure which considers the husband as the owner of the wife’s
sexuality, the law perpetuates a deeply entrenched patriarchal order. E
The true realisation of the substantive content of equality must entail an
overhaul of these social structures. When all visible and invisible forms
of inequality- social, cultural, economic, political or sexual- are recognised
and obliterated; a truly egalitarian existence can be imagined.
F ‘The Good Wife’ F
Article 15 of the Constitution reads thus:
“15. (1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of
them.” (Emphasis supplied)
G
107
Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass
of Feminism in Gender and Politics in India (Nivedita Menon ed.) (1993)
108
Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective,
Journal of the Indian Law Institute (1988)
109
Catherine A Mackinnon, Sex equality under the Constitution of India: Problems,
prospects, and ‘personal laws’, Oxford University Press and New York University
School of Law (2006) H
900 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 40. Article 15 prohibits the State from discriminating on grounds
onlyof sex. The Petitioners contend that (i) Section 497, in so far as it
places a husband and wife on a different footing in a marriage perpetuates
sex discrimination; (ii) Section 497 is based on the patriarchal conception
of the woman as property, entrenches gender stereotypes, and is
consequently hit by Article 15.
B
From a joint reading of Section 497 of the Indian Penal Code and Section
198(2) of the Code of Criminal Procedure, the following propositions
emerge:
i. Sexual relations by a married woman with another man
C outside her marriage without the consent of her husband is
criminalized;
ii. In an ‘adulterous relationship’, the man is punished for
adultery, while the woman is not (even as an abettor);
iii. Sexual relations by a married man with an unmarried woman
D are not criminalized;
iv. Section 497 accords primacy to the consent of the husband
to determine whether criminality is attached to the man who
has consensual sexual relations with the spouse of the
former. Consent or willingness of the woman is irrelevant
E to the offence;
v. A man who has sexual relations with the spouse of another
man is relieved of the offence only if her spouse has
consented or, even connived; and
vi. Section 497, IPC, read with Section 198, Cr.PC, gives the
F
man the sole right to lodge a complaint and precludes a
woman from initiating criminal proceedings.
41. The operation of Section 497, by definition, is confined to the
sexual relations of a woman outside her marriage. A man who has sexual
intercourse with a married woman without the consent or connivance of
G her husband, is liable to be prosecuted under the Section. However, a
married man may engage in sexual relations outside marriage with a
single woman without any repercussion in criminal law. Though granted
immunity from prosecution, a woman is forced to consider the prospect
of the penal action that will attach upon the individual with whom she
H engages in a sexual act. To ensure the fidelity of his spouse, the man is
JOSEPH SHINE v. UNION OF INDIA 901
[DR. D. Y. CHANDRACHUD, J.]

given the power to invoke the criminal sanction of the State. In effect, A
her spouse is empowered to curtail her sexual agency. The consent of
the husband serves as the key to the exercise of the sexual agency of
his spouse. That the married woman is in a consensual relationship, is of
no consequence to the possible prosecution.
A married man may engage in sexual relations with an unmarried woman B
who is not his wife without the fear of opening his partner to prosecution
and without the consent of his spouse. No recourse is provided to a
woman against her husband who engages in sexual relations outside
marriage. The effect of Section 497 is to allow the sexual agency of a
married woman to be wholly dependent on the consent or connivance of
her husband. Though Section 497 does not punish a woman engaging in C
adultery as an abettor, a married man and a married woman are placed
on different pedestals in respect to their actions. The effect of Section
497, despite granting immunity from prosecution to the married woman,
is to attach a notion of wrongdoing to the exercise of her sexual agency.
Despite exempting her from prosecution, the exercise of her sexual D
agency is contingent on the consent or connivance of the husband. 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. Viewed from this angle, Section 497 discriminates between
a married man and a married woman to her detriment on the ground of
sex. This kind of discrimination is prohibited by the non-discrimination E
guarantee in Article 15 of the Constitution. Section 497 also places a
woman within marriage and the man with whom she shares a sexual
relationship outside marriage on a different footing.
42. Section 497 criminalizes the conduct of the man who has sexual
intercourse with the wife of another without his consent. It exempts F
women from criminal liability. Underlying this exemption is the notion
that women, being denuded of sexual agency, should be afforded the
‘protection’ of the law. In criminalizing the accused who engages in the
sexual relationship, the law perpetuates a gender stereotype that men,
possessing sexual agency are the seducers, and that women, as passive G
beings devoid of sexual agency, are the seduced. The notion that a woman
is ‘submissive’, or worse still ‘naïve’ has no legitimacy in the discourse
of a liberal constitution. It is deeply offensive to equality and destructive
of the dignity of the woman. On this stereotype, Section 497 criminalizes
only the accused man.
H
902 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 43. Pertinent to the present enquiry, is that the provision allows
only the husband to initiate a prosecution for adultery. The consent or
connivance of the husband precludes prosecution. If a husband consents,
his spouse is effectively granted permission to exercise her sexual agency
with another individual. This guarantees a degree of control to the
husband over the sexual agency of his spouse. As a relic of Victorian
B
morality, this control over the sexual agency of the spouse, views the
wife as the property of the husband. Fidelity of the woman, and the
husband’s control over it, is seen as maintaining the ‘property’ interest
of a husband in his wife.110 In this view, a woman is confounded with
things that can be possessed. In construing the spouse as a passive or
C inanimate object, the law on adultery seeks to punish a person who
attempts theft on the property of the husband. Coontz and Henderson
write that the stabilization of property rights and the desire to pass on
one’s property to legitimate heirs, were what motivated men to restrict
the sexual behavior of their wives.111
D 44. Underlying Section 497 is a gender stereotype that the infidelity
of men is normal, but that of a woman is impermissible. In condemning
the sexual agency of the woman, only the husband, as the ‘aggrieved’
party is given the right to initiate prosecution. The proceedings once
initiated, would be geared against the person who committed an act of
‘theft’ or ‘trespass’ upon his spouse. Sexual relations by a man with
E another man’s wife is therefore considered as theft of the husband’s
property. Ensuring a man’s control over the sexuality of his wife was the
true purpose of Section 497.
Implicit in seeking to privilege the fidelity of women in a marriage, is the
assumption that a woman contracts away her sexual agency when
F entering a marriage. That a woman, by marriage, consents in advance
to sexual relations with her husband or to refrain from sexual relations
outside marriage without the permission of her husband is offensive to
liberty and dignity. Such a notion has no place in the constitutional order.
Sexual autonomy constitutes an inviolable core of the dignity of every
individual. At the heart of the constitutional rights guaranteed to every
G individual is a primacy of choice and the freedom to determine one’s
actions. Curtailing the sexual autonomy of a woman or presuming the
110
Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the State
Makes Three, Vol. 24, Indian Law Review (1991)
111
Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and P
H Henderson eds.) (1986)
JOSEPH SHINE v. UNION OF INDIA 903
[DR. D. Y. CHANDRACHUD, J.]

lack of consent once she enters a marriage is antithetical to constitutional A
values.
45. A provision of law must not be viewed as operating in isolation
from the social, political, historical and cultural contexts in which it
operates. In its operation, law “permeates and is inseparable from
everyday living and knowing, and it plays an important role in shaping B
(legal) consciousness.”112 A contextual reading of the law shows that it
influences social practices, and makes “asymmetries of power seem, if
not invisible, natural and benign”.113 Section 497 has a significant social
impact on the sexual agency of women. It builds on existing gender
stereotypes and bias and further perpetuates them. Cultural stereotypes
are more forgiving of a man engaging in sexual relations than a woman. C
Women then are expected to be chaste before and faithful during
marriage. In restricting the sexual agency of women, Section 497 gives
legal recognition to socially discriminatory and gender-based norms.
Sexual relations for a woman were legally and socially permissible when
it was within her marriage. Women who committed adultery or non- D
marital sex were labeled immoral, shameful, and were criminally
condemned.
In Anuj Garg v Hotel Association of India,114 thisCourt struck down
Section 30 of the Punjab Excise Act, 1914 which prohibited the
employment of women in premises where liquor or other intoxicating E
drugs were consumed by the public. Holding that the law suffered from
“incurable fixations of stereotype morality and conception of sexual role”,
the Court took into account “traditional cultural norms as also the state
of general ambience in the society” and held that “no law in its ultimate
effect should end up perpetuating the oppression of women.”
F
In Navtej,one of us (Chandrachud J.) held thus:
“A discriminatory act will be tested against constitutional values.
A discrimination will not survive constitutional scrutiny when it is
grounded in and perpetuates stereotypes about a class constituted
by the grounds prohibited in Article 15(1). If any ground of
G
112
Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural
Studies,Toby Miller (ed.), Oxford, (2001)
113
Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural
Studies, and the Situation of Legal Scholarship, Yale Journal of Law & the Humanities,
(2001), at page 19
114
(2008) 3 SCC 1 H
904 SUPREME COURT REPORTS [2018] 11 S.C.R.

A discrimination, whether direct or indirect is founded on a
stereotypical understanding of the role of the sex, it would not be
distinguishable from the discrimination which is prohibited by
Article 15 on the grounds only of sex. If certain characteristics
grounded in stereotypes, are to be associated with entire classes
of people constituted as groups by any of the grounds prohibited
B
in Article 15(1), that cannot establish a permissible reason to
discriminate. Such a discrimination will be in violation of the
constitutional guarantee against discrimination in Article 15(1).”
46. Section 497 rests on and perpetuates stereotypes about women
and sexual fidelity. In curtailing the sexual agency of women, it exacts
C sexual fidelity from women as the norm. It perpetuates the notion that a
woman is passive and incapable of exercising sexual freedom. In doing
so, it offers her ‘protection’ from prosecution. 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
D a woman consents to a limited autonomy on entering marriage. The
provision is grounded in and has a deep social effect on how society
perceives the sexual agency of women. In reinforcing the patriarchal
structure which demands her controlled sexuality, Section 497 purports
to serve as a provision envisaged for the protection of the sanctity of
marriage. In the context of a constitutional vision characterized by the
E struggle to break through the shackles of gender stereotypes and
guarantee an equal citizenship, Section 497 entrenches stereotypes and
existing structures of discrimination and has no place in a constitutional
order.
F.1 The entrapping cage
F
47. Section 497 exempts a woman from being punished as an
abettor. Underlying this exemption is the notion that a woman is the
victim of being seduced into a sexual relationship with a person who is
not her husband. In assuming that the woman has no sexual agency, the
exemption seeks to be justified on the ground of being a provision that is
G beneficial to women and protected under Article 15(3) of the Constitution.
This is contrary to the remedy which Article 15(3) sought to embody. In
Government of A P v P B Vijayakumar,115 a two judge Bench of this
Court dealt with a challenge to sub-rule (2) of Rule 22-A of the Andhra

115
(1995) 4 SCC 520
H
JOSEPH SHINE v. UNION OF INDIA 905
[DR. D. Y. CHANDRACHUD, J.]

Pradesh State and Subordinate Service Rules, which gave women a A
preference in the matter of direct recruitment. Speaking for the Court,
Justice Sujata V Manohar held thus:
“7. The insertion of Clause (3) of Article 15 in relation to women
is a recognition of the fact that for centuries, women of this
country have been socially and economically handicapped. As a B
result, they are unable to participate in the socio-economic
activities of the nation on a footing of equality. It is in order to
eliminate this socio-economic backwardness of women and to
empower them in a manner that would bring about effective
equality between men and women that Article 15(3) is placed in
Article 15. Its object is to strengthen and improve the status of C
women…” 116
In Independent Thought v Union of India,117 Justice Madan B Lokur,
speaking for a two judge Bench of this Court, adverted to the drafting
history of Article 15(3) and held thus:
D
“55. The response given by Dr. Ambedkar suggests that he
certainly favoured special provisions for women and children
with a view to integrate them into society and to take them out
of patriarchal control…118
56. What clearly emerges from this discussion is that Article E
9(2) of the draft Constitution [now Article 15(3)] was intended
to discriminate in favour of women and children – a form of
affirmative action to their advantage.”119
48. Article 15(3) encapsulates the notion of ‘protective
discrimination’. The constitutional guarantee in Article 15(3) cannot be F
employed in a manner that entrenches paternalistic notions of ‘protection’.
This latter view of protection only serves to place women in a cage.
Article 15(3) does not exist in isolation. Articles 14 to 18, being
constituents of a single code on equality, supplement each other and
incorporate a non-discrimination principle. Neither Article 15(1), nor
Article 15(3) allow discrimination against women. Discrimination which G
is grounded in paternalistic and patriarchal notions cannot claim the
116
Ibid. at page 525
117
(2017) 10 SCC 800
118
Ibid. at page 837
119
Ibid. at page 837 H
906 SUPREME COURT REPORTS [2018] 11 S.C.R.

A protection of Article 15(3). In exempting women from criminal
prosecution, Section 497 implies that a woman has no sexual agency
and that she was ‘seduced’ into a sexual relationship. Given the presumed
lack of sexual agency, criminal exemption is then granted to the woman
in order to ‘protect’ her. The ‘protection’ afforded to women under Section
497 highlights the lack of sexual agency that the section imputes to a
B
woman. Article 15(3) when read with the other Articles in Part III, serves
as a powerful remedy to remedy the discrimination and prejudice faced
by women for centuries. Article 15(3) as an enabling provision is intended
to bring out substantive equality in the fullest sense. Dignity and autonomy
are crucial to substantive equality. Hence, Article 15(3) does not protect
C a statutory provision that entrenches patriarchal notions in the garb of
protecting women.
G Denuding identity – women as sexual property
49. Charles Jean Marie wrote in 1911120 about the central forms
of adultery as an offence. The criminalisation of adultery came at a
D social cost: of disregarding the agency of a woman as a sentient being.
“In all legislations the married woman is more or less openly
considered as the property of the husband and is very often
confounded, absolutely confounded, with things possessed. To
use her, therefore, without the authority of her owner is theft…But
E adultery is not a common theft. An object, an inert possession,
are passive things; their owner may well punish the thief who
has taken them, but him only. In adultery, the object of larceny,
the wife, is a sentient and thinking being- that is to say, an
accomplice in the attempt on her husband’s property in her
own person; moreover he generally has her in his keeping…”
F
The law on adultery is but a codified rule of patriarchy. Patriarchy has
permeated the lives of women for centuries. Ostensibly, society has
two sets of standards of morality for judging sexual behaviour.121 One
set for its female members and another for males.122 Society ascribes
impossible virtues to a woman and confines her to a narrow sphere of
G behaviour by an expectation of conformity.123 Raising a woman to a
120
Charles Jean Marie Letorneau, The Evolution of Marriage (2011)
121
Nandita Haksar, Dominance, Suppression and the Law in Women and the Law:
Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas Publishing
House (1994)
122
Ibid
H 123
Ibid
JOSEPH SHINE v. UNION OF INDIA 907
[DR. D. Y. CHANDRACHUD, J.]

pedestal is one part of the endeavour. The second part is all about A
confining her to a space. The boundaries of that space are defined by
what a woman should or should not be. A society which perceives women
as pure and an embodiment of virtue has no qualms of subjecting them
to virulent attack: to rape, honour killings, sex-determination and
infanticide. As an embodiment of virtue, society expects the women to
B
be a mute spectator to and even accepting of egregious discrimination
within the home. This is part of the process of raising women to a pedestal
conditioned by male notions of what is right and what is wrong for a
woman. The notion that women, who are equally entitled to the
protections of the Constitution as their male counterparts, may be treated
as objects capable of being possessed, is an exercise of subjugation and C
inflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’
have dictated the social and cultural lives of women, depriving them of
the guarantees of dignity and privacy, contained in the Constitution.
50. The right to privacy depends on the exercise of autonomy and
agency by individuals. In situations where citizens are disabled from D
exercising these essential attributes, Courts must step in to ensure that
dignity is realised in the fullest sense. Familial structures cannot be
regarded as private spaces where constitutional rights are violated. To
grant immunity in situations when rights of individuals are in siege, is to
obstruct the unfolding vision of the Constitution.
E
The opinion delivered on behalf of four judges in K S Puttaswamy v
Union of India124 has recognised the dangers of the “use of privacy as
a veneer for patriarchal domination and abuse of women.” On the delicate
balance between the competing interests of protecting privacy as well
dignity of women in the domestic sphere, the Court held:
F
“The challenge in this area is to enable the state to take the
violation of the dignity of women in the domestic sphere seriously
while at the same time protecting the privacy entitlements of
women grounded in the identity of gender and liberty.”
51. In “Seeing like a Feminist”, Nivedita Menon has recognized G
the patriarchal family as the “basis for the secondary status of women in
society.”125 Menon notes that ‘the personal is political’.126 Her scholarly
124
(2017) 10 SCC 1
125
Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35
126
Ibid.
H
908 SUPREME COURT REPORTS [2018] 11 S.C.R.

A work implores us to recognise spaces which may be considered personal
such as the bedroom and kitchen. These spaces are immersed in power
relations, but with ramifications for the public sphere.127
Control over women’s sexuality is the key patriarchal assumption that
underlies family and marriage.128 When it shifts to the ‘public’ as opposed
B to the ‘private’, the misogyny becomes even more pronounced.129 Section
497 embodies this. By the operation of the provision, women’s sexuality
is sought to be controlled in a number of ways. First, the husband and he
alone is enabled to prosecute the man with whom his wife has sexual
relations. Even in cases where the relationship is based on the consent
of the woman, the law treats it as an offence, denying a woman who has
C voluntarily entered into a consensual relationship of her sexual agency.
Second, such a relationship would be beyond the reach of penal law if
her husband consents to it. The second condition is a telling reflection of
the patriarchal assumption underlying the criminal provision: that the
husband is the owner of the wife’s sexual agency.
D 52. In remedying injustices, the Court cannot shy away from delving
into the ‘personal’, and as a consequence, the ‘public’. It becomes
imperative for us to intervene when structures of injustice and persecution
deeply entrenched in patriarchy are destructive of constitutional freedom.
But, in adjudicating on the rights of women, the Court is not taking on a
paternalistic role and “granting” rights. The Court is merely interpreting
E
the text of the Constitution to re-state what is already set in ink- women
are equal citizens of this nation, entitled to the protections of the
Constitution. Any legislation which results in the denial of these
Constitutional guarantees to women, cannot pass the test of
constitutionality.
F Patriarchy and paternalism are the underpinnings of Section 497. It
needs no iteration that misogyny and patriarchal notions of sexual control
find no place in a constitutional order which has recognised dignity as
intrinsic to a person, autonomy being an essential component of this
right. The operation of Section 497 denotes that ‘adulterous women’
G virtually exercise no agency; or at least not enough agency to make
them criminally liable.130 They are constructed as victims. As victims,
127
Ibid.
128
Ibid.
129
Ibid.
130
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with
H Law in India, Sage Publications (1996) at page 119
JOSEPH SHINE v. UNION OF INDIA 909
[DR. D. Y. CHANDRACHUD, J.]

they are to be protected by being exempt from sanctions of a criminal A
nature.131 Not only is there a denial of sexual agency, women are also
not seen to be harmed by the offence.132 Thus, the provision is not
simply about protecting the sanctity of the marital relationship. It is all
about protecting a husband’s interest in his “exclusive access to his wife’s
sexuality”.133
B
53. Section 497 chains the woman to antediluvian notions of
sexuality. Chief Justice Dipak Misra in Navtej emphasised the
importance of sexual autonomy as a facet of individual liberty, thus
protected under Article 21 of the Constitution:
“The sexual autonomy of an individual to choose his/her sexual C
partner is an important pillar and an insegregable facet of
individual liberty. When the liberty of even a single person of the
society is smothered under some vague and archival stipulation
that it is against the order of nature or under the perception that
the majority population is peeved when such an individual
exercises his/her liberty despite the fact that the exercise of such D
liberty is within the confines of his/her private space, then the
signature of life melts and living becomes a bare subsistence
and resultantly, the fundamental right of liberty of such an
individual is abridged.”
In Navtej, one of us (Chandrachud J.) held that the recognition of the E
autonomy of an individual is an acknowledgement of the State’s respect
for the capacity of the individual to make individual choices:
“The right to privacy enables an individual to exercise his or her
autonomy, away from the glare of societal expectations. The
realisation of the human personality is dependent on the autonomy F
of an individual. In a liberal democracy, recognition of the
individual as an autonomous person is an acknowledgment of
the State’s respect for the capacity of the individual to make
independent choices. The right to privacy may be construed to
signify that not only are certain acts no longer immoral, but that
there also exists an affirmative moral right to do them.” G
To characterise a woman as a passive object, denuded of agency, is a
denial of autonomy. The same judgment in Navtej has recognized sexual
131
Ibid.
132
Ibid.
133
Ibid. at page 120 H
910 SUPREME COURT REPORTS [2018] 11 S.C.R.

A choices as an essential attribute of autonomy, intimately connected to
the self-respect of the individual:
“In order to understand how sexual choices are an essential
attribute of autonomy, it is useful to refer to John Rawls’ theory
on social contract. Rawls’ conception of the ‘Original Position’
B serves as a constructive model to illustrate the notion of choice
behind a “partial veil of ignorance.” Persons behind the veil are
assumed to be rational and mutually disinterested individuals,
unaware of their positions in society. The strategy employed by
Rawls is to focus on a category of goods which an individual
would desire irrespective of what individuals’ conception of ‘good’
C might be. These neutrally desirable goods are described by Rawls
as ‘primary social goods’ and may be listed as rights, liberties,
powers, opportunities, income, wealth, and the constituents of
self-respect. Rawls’s conception of self-respect, as a primary
human good, is intimately connected to the idea of
D autonomy. Self-respect is founded on an individual’s ability
to exercise her native capacities in a competent manner.”
(Emphasis supplied)
G.1 Exacting fidelity: the intimacies of marriage
54. Marriage as a social institution has undergone changes.
E Propelled by access to education and by economic and social progress,
women have found greater freedom to assert their choices and
preferences. The law must also reflect their status as equals in a marriage,
entitled to the constitutional guarantees of privacy and dignity. The opinion
delivered on behalf of four judges in Puttaswamy held thus:
F “130…As society evolves, so must constitutional doctrine. The
institutions which the Constitution has created must adapt flexibly
to meet the challenges in a rapidly growing knowledge economy.
Above all, constitutional interpretation is but a process in achieving
justice, liberty and dignity to every citizen.”134
G In Navtej, Justice Rohinton Nariman countered the assertion that the
Court must “not indulge in taking upon itself the guardianship of changing
societal mores” by holding thus:
“…The very purpose of the fundamental rights chapter in the
Constitution of India is to withdraw the subject of liberty and
H 134
Ibid. at page 414
JOSEPH SHINE v. UNION OF INDIA 911
[DR. D. Y. CHANDRACHUD, J.]

dignity of the individual and place such subject beyond the reach A
of majoritarian governments so that constitutional morality can
be applied by this Court to give effect to the rights, among others,
of ‘discrete and insular’ minorities.One such minority has knocked
on the doors of this Court as this Court is the custodian of the
fundamental rights of citizens. These fundamental rights do
B
not depend upon the outcome of elections. And, it is not
left to majoritarian governments to prescribe what shall
be orthodox in matters concerning social morality. The
fundamental rights chapter is like the north star in the
universe of constitutionalism in India. Constitutional
morality always trumps any imposition of a particular view C
of social morality by shifting and different majoritarian
regimes.”
(Emphasis supplied)
55. Section 497 seeks the preservation of a construct of marriage
in which female fidelity is enforced by the letter of the law and by the D
coercive authority of the state. Such a conception goes against the spirit
of the rights-based jurisprudence of this Court, which seeks to protect
the dignity of an individual and her “intimate personal choices”. It cannot
be held that these rights cease to exist once the woman enters into a
marriage. E
56. The identity of the woman must be as an ‘individual in her
own right’. In that sense, her identity does not get submerged as a result
of her marriage. Section 497 lays down the norm that the identity of a
married woman is but as the wife of her spouse. Underlying the norm is
a notion of control over and subjugation of the woman. Such notions F
cannot withstand scrutiny under a liberal constitution. Chief Justice Dipak
Misra in Navtej has drawn on the interrelationship between ‘identity’
and ‘autonomy’:
“…Autonomy is individualistic. Under the autonomy principle,
the individual has sovereignty over his/her body. He/she can
G
surrender his/her autonomy wilfully to another individual and their
intimacy in privacy is a matter of their choice. Such concept of
identity is not only sacred but is also in recognition of the
quintessential facet of humanity in a person‘s nature. The
autonomy establishes identity and the said identity, in the ultimate
eventuate, becomes a part of dignity in an individual.This dignity H
912 SUPREME COURT REPORTS [2018] 11 S.C.R.

A is special to the man/woman who has a right to enjoy his/her life
as per the constitutional norms and should not be allowed to
wither and perish like a mushroom. It is a directional shift from
conceptual macrocosm to cognizable microcosm. When such
culture grows, there is an affirmative move towards a more
inclusive and egalitarian society.”
B
This Court in Puttaswamy has elucidated that privacy is the entitlement
of every individual, with no distinction to be made on the basis of the
individual’s position in society.
“271.Every individual in society irrespective of social class or
C economic status is entitled to the intimacy and autonomy which
privacy protects. It is privacy as an intrinsic and core feature of
life and personal liberty which enables an individual to stand up
against a programme of forced sterilization. Then again, it is
privacy which is a powerful guarantee if the State were to
introduce compulsory drug trials of non-consenting men or
D women. The sanctity of marriage, the liberty of procreation, the
choice of a family life and the dignity of being are matters which
concern every individual irrespective of social strata or economic
well being. The pursuit of happiness is founded upon autonomy
and dignity. Both are essential attributes of privacy which makes
E no distinction between the birth marks of individuals.”135
57. It would be useful to refer to decisions of this Court which
have emphasised on the freedoms of individuals with respect to choices
in relationships. In Navtej, Chief Justice Misra highlighted the indignity
suffered by an individual when “acts within their personal sphere” are
F criminalised on the basis of regressive social attitudes:
“An individual’s choice to engage in certain acts within their
private sphere has been restricted by criminalising the same on
account of the age old social perception. To harness such an
essential decision, which defines the individualism of a person,
G by tainting it with criminality would violate the individual’s right
to dignity by reducing it to mere letters without any spirit.”
The Chief Justice observed that the “organisation of intimate relations”
between “consenting adults” is a matter of complete personal choice
135
Ibid. at page 484
H
JOSEPH SHINE v. UNION OF INDIA 913
[DR. D. Y. CHANDRACHUD, J.]

and characterised the “private protective sphere and realm of individual A
choice and autonomy” as a personal right:
“It is true that the principle of choice can never be absolute
under a liberal Constitution and the law restricts one individual‘s
choice to prevent harm or injury to others. However, the
organisation of intimate relations is a matter of complete B
personal choice especially between consenting adults. It
is a vital personal right falling within the private protective
sphere and realm of individual choice and autonomy. Such
progressive proclivity is rooted in the constitutional
structure and is an inextricable part of human nature.”
C
(Emphasis supplied)
In Shakti Vahini, this Court has recognised the right to choose a partner
as a fundamental right under Articles 19 and 21 of the Constitution. In
Shafin Jahan, “intimate personal choices” were held to be a protected
sphere, with one of us (Chandrachud J) stating:
D
“88.The choice of a partner whether within or outside marriage
lies within the exclusive domain of each individual. Intimacies of
marriage lie within a core zone of privacy, which is inviolable.”
58. In Navtej, one of us (Chandrachud J) held that the right to
sexual privacy is a natural right, fundamental to liberty and a soulmate of E
dignity. The application of Section 497 is a blatant violation of these
enunciated rights. Will a trial to prove adultery lead the wife to tender
proof of her fidelity? In Navtej, the principle was elucidated thus:
“In protecting consensual intimacies, the Constitution adopts a
simple principle: the state has no business to intrude into these F
personal matters.”
In so far as two individuals engage in acts based on consent, the law
cannot intervene. Any intrusion in this private sphere would amount to
deprivation of autonomy and sexual agency, which every individual is
imbued with.
G
In Puttaswamy, it was recognised that a life of dignity entails that the
“inner recesses of the human personality” be secured from “unwanted
intrusion”:
“127.The right to privacy is an element of human dignity. The
sanctity of privacy lies in its functional relationship with dignity. H
914 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Privacy ensures that a human being can lead a life of dignity by
securing the inner recesses of the human personality from
unwanted intrusion. Privacy recognises the autonomy of the
individual and the right of every person to make essential choices
which affect the course of life. In doing so privacy recognises
that living a life of dignity is essential for a human being to fulfil
B
the liberties and freedoms which are the cornerstone of the
Constitution.”136
59. In criminalizing adultery, the legislature has imposed its
imprimatur on the control by a man over the sexuality of his spouse. In
doing that, the statutory provision fails to meet the touchstone of Article
C 21. Section 497 deprives a woman of her autonomy, dignity and privacy.
It compounds the encroachment on her right to life and personal liberty
by adopting a notion of marriage which subverts true equality. Equality
is subverted by lending the sanctions of the penal law to a gender biased
approach to the relationship of a man and a woman. The statute confounds
D paternalism as an instrument for protecting marital stability. It defines
the sanctity of marriage in terms of a hierarchical ordering which is
skewed against the woman. The law gives unequal voices to partners in
a relationship.
This judgment has dwelt on the importance of sexual autonomy as a
E value which is integral to life and personal liberty under Article 21.
Individuals in a relationship, whether within or outside marriage, have a
legitimate expectation that each will provide to the other the same
element of companionship and respect for choices. Respect for sexual
autonomy, it must be emphasized is founded on the equality between
spouses and partners and the recognition by each of them of the dignity
F of the other. Control over sexuality attaches to the human element in
each individual. Marriage – whether it be a sacrament or contract –
does not result in ceding of the autonomy of one spouse to another.
60. Recognition of sexual autonomy as inhering in each individual
and of the elements of privacy and dignity have a bearing on the role of
G the state in regulating the conditions and consequences of marital
relationships. There is a fundamental reason which militates against
criminalization of adultery. Its genesis lies in the fact that criminalizing
an act is not a valid constitutional response to a sexual relationship outside

136
Ibid. at page 413
H
JOSEPH SHINE v. UNION OF INDIA 915
[DR. D. Y. CHANDRACHUD, J.]

the fold of marriage. Adultery in the course of a subsisting marital A
relationship may, and very often does question the commitment of the
spouse to the relationship. In many cases, a sexual relationship of one of
the spouses outside of the marriage may lead to the end of the marital
relationship. But in other cases, such a relationship may not be the cause
but the consequence of a pre-existing disruption of the marital tie. All
B
too often, spouses who have drifted apart irrevocably may be compelled
for reasons personal to them to continue with the veneer of a marriage
which has ended for all intents and purposes. The interminably long
delay of the law in the resolution of matrimonial conflicts is an aspect
which cannot be ignored. The realities of human existence are too
complex to place them in closed categories of right and wrong and to C
subject all that is considered wrong with the sanctions of penal law. Just
as all conduct which is not criminal may not necessarily be ethically just,
all conduct which is inappropriate does not justify being elevated to a
criminal wrongdoing.
61. The state undoubtedly has a legitimate interest in regulating D
many aspects of marriage. That is the foundation on which the state
does regulate rights, entitlements and duties, primarily bearing on its civil
nature. Breach by one of the spouses of a legal norm may constitute a
ground for dissolution or annulment. When the state enacts and enforces
such legislation, it does so on the postulate that marriage as a social
institution has a significant bearing on the social fabric. But in doing so, E
the state is equally governed by the norms of a liberal Constitution which
emphasise dignity, equality and liberty as its cardinal values. The legitimate
aims of the state may, it must be recognized, extend to imposing penal
sanctions for certain acts within the framework of marriage. Physical
and emotional abuse and domestic violence are illustrations of the need F
for legislative intervention. The Indian state has legitimately intervened
in other situations such as by enacting anti dowry legislation or by creating
offences dealing with the harassment of women for dowry within a
marital relationship. The reason why this constitutes a legitimate recourse
to the sovereign authority of the state to criminalize conduct is because
the acts which the state proscribes are deleterious to human dignity. In G
criminalizing certain types of wrongdoing against women, the state
intervenes to protect the fundamental rights of every woman to live with
dignity. Consequently, it is important to underscore that this judgment
does not question the authority and even the duty of the state to protect
H
916 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the fundamental rights of women from being trampled upon in unequal
societal structures. Adultery as an offence does not fit that paradigm. In
criminalizing certain acts, Section 497 has proceeded on a hypothesis
which is deeply offensive to the dignity of women. It is grounded in
paternalism, solicitous of patriarchal values and subjugates the woman
to a position where the law disregards her sexuality. The sexuality of a
B
woman is part of her inviolable core. Neither the state nor the institution
of marriage can disparage it. By reducing the woman to the status of a
victim and ignoring her needs, the provision penalizing adultery disregards
something which is basic to human identity. Sexuality is a definitive
expression of identity. Autonomy over one’s sexuality has been central
C to human urges down through the ages. It has a constitutional foundation
as intrinsic to autonomy. It is in this view of the matter that we have
concluded that Section 497 is violative of the fundamental rights to equality
and liberty as indeed, the right to pursue a meaningful life within the fold
of Articles 14 and 21.
D 62. The hallmark of a truly transformative Constitution is that it
promotes and engenders societal change. To consider a free citizen as
the property of another is an anathema to the ideal of dignity. Section
497 denies the individual identity of a married woman, based on age-old
societal stereotypes which characterised women as the property of their
spouse. It is the duty of this Court to break these stereotypes and promote
E a society which regards women as equal citizens in all spheres of life-
irrespective of whether these spheres may be regarded as ‘public’ or
‘private’.
H Towards transformative justice

F 63. Constitutional values infuse the letter of the law with meaning.
True to its transformative vision, the text of the Constitution has, time
and again, been interpreted to challenge hegemonic structures of power
and secure the values of dignity and equality for its citizens. One of the
most significant of the battles for equal citizenship in the country has
been fought by women. Feminists have overcome seemingly
G insurmountable barriers to ensure a more egalitarian existence for future
generations. However, the quest for equality continues. While there has
been a considerable degree of reform in the formal legal system, there is
an aspect of women’s lives where their subordination has historically
been considered beyond reproach or remedy. That aspect is the family.
H Marriage is a significant social institution where this subordination is
JOSEPH SHINE v. UNION OF INDIA 917
[DR. D. Y. CHANDRACHUD, J.]

pronounced, with entrenched structures of patriarchy and romantic A
paternalism shackling women into a less than equal existence.
64. The law on adultery, conceived in Victorian morality, considers
a married woman the possession of her husband: a passive entity, bereft
of agency to determine her course of life. The provision seeks to only
redress perceived harm caused to the husband. This notion is grounded B
in stereotypes about permissible actions in a marriage and the passivity
of women. Fidelity is only expected of the female spouse. This
anachronistic conception of both, a woman who has entered into marriage
as well as the institution of marriage itself, is antithetical to constitutional
values of equality, dignity and autonomy.
C
In enforcing the fundamental right to equality, this Court has evolved a
test of manifest arbitrariness to be employed as a check against state
action or legislation which has elements of caprice, irrationality or lacks
an adequate determining principle. The principle on which Section 497
rests is the preservation of the sexual exclusivity of a married woman –
for the benefit of her husband, the owner of her sexuality. Significantly, D
the criminal provision exempts from sanction if the sexual act was with
the consent and connivance of the husband. The patriarchal underpinnings
of Section 497 render the provision manifestly arbitrary.
65. The constitutional guarantee of equality rings hollow when
eviscerated of its substantive content. To construe Section 497 in a vacuum E
(as did Sowmithri Vishnu)or in formalistic terms (as did Revathi) is a
refusal to recognise and address the subjugation that women have
suffered as a consequence of the patriarchal order. Section 497 is a
denial of substantive equality in that it re-inforces the notion that women
are unequal participants in a marriage; incapable of freely consenting to F
a sexual act in a legal order which regards them as the sexual property
of their spouse.
66. This Court has recognised 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 G
denial of this right. Section 497 denudes a married woman of her agency
and identity, employing the force of law to preserve a patriarchal
conception of marriage which is at odds with constitutional morality:
“Infidelity was born on the day that natural flows of sexual desire
were bound into the legal and formal permanence of marriage;
H
918 SUPREME COURT REPORTS [2018] 11 S.C.R.

A in the process of ensuring male control over progeny and property,
women were chained within the fetters of fidelity.”137
Constitutional protections and freedoms permeate every aspect of a
citizen’s life - the delineation of private or public spheres become irrelevant
as far as the enforcement of constitutional rights is concerned. Therefore,
B even the intimate personal sphere of marital relations is not exempt from
constitutional scrutiny. The enforcement of forced female fidelity by
curtailing sexual autonomy is an affront to the fundamental right to dignity
and equality.
67. Criminal law must be in consonance with constitutional morality.
C The law on adultery enforces a construct of marriage where one partner
is to cede her sexual autonomy to the other. Being antithetical to the
constitutional guarantees of liberty, dignity and equality, Section 497 does
not pass constitutional muster.
We hold and declare that:
D 1) Section 497 lacks an adequately determining principle to
criminalize consensual sexual activity and is manifestly
arbitrary. Section 497 is a denial of substantive equality as
it perpetuates the subordinate status ascribed to women in
marriage and society. Section 497 violates Article 14 of the
E Constitution;
2) Section 497 is based on gender stereotypes about the role
of women and violates the non-discrimination principle
embodied in Article 15 of the Constitution;
3) Section 497 is a denial of the constitutional guarantees of
F dignity, liberty, privacy and sexual autonomy which are
intrinsic to Article 21 of the Constitution; and
4) Section 497 is unconstitutional.
The decisions in Sowmithri Vishnu and Revathi are overruled.
G
INDU MALHOTRA, J. 1. The present Writ Petition has been
filed to challenge the constitutional validity of Section 497 of the Indian
Penal Code (hereinafter referred to as I.P.C.) which makes ‘adultery’ a
137
Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting
H Archana Verma, Stree Vimarsh Ke Mahotsav (2010)
JOSEPH SHINE v. UNION OF INDIA 919
[INDU MALHOTRA, J.]

criminal offence, and prescribes a punishmentof imprisonment upto five A
years and fine.Section 497 reads as under:
“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 B
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.”
2. The Petitioner has also challenged Section 198(2) of the Code C
of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C”).Section
198(2) reads as under:
“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 D
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.” E
3. The word ‘adultery’1 derives its origin from the French
word‘avoutre’, which has evolved from the Latin verb‘adulterium’ which
means “to corrupt.” The concept of a wife corrupting the marital bond
with her husband by having a relationship outside the marriage, was
termed as ‘adultery’.
F
This definition of adultery emanated from the historical contextof
Victorian morality,wherea woman considered to be the ‘property’ of her
husband;andthe offence was committed only by the adulterous man.
The adulterous woman could not be proceeded against as an
‘abettor’,even though the relationship was consensual.
G
4. THE DOCTRINE OF COVERTURE
Adultery, as an offence, was not a crime under Common Law, in
England. It was punishable by the ecclesiastical courts which exercised
1
The New international Webster’s Comprehensive Dictionary of the English Language,
Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21. H
920 SUPREME COURT REPORTS [2018] 11 S.C.R.

A jurisdiction over sacramental matters that included marriage, separation,
legitimacy, succession to personal property, etc.2
In England, coverture determined the rights of married women,
under Common Law. A ‘femesole’ transformed into a ‘femecovert’after
marriage. ‘Feme covert’ was based on the doctrine of ‘Unity of Persons’
B – i.e. the husband and wife were a single legal identity. This was based
on notions of biblical morality that a husband and wife were ‘one in flesh
and blood’. The effect of ‘coverture’ was that a married woman’s legal
rights were subsumed by that of her husband. A married woman could
not own property, execute legal documents, enter into a contract, or
obtain an education against her husband’s wishes, or retain a salary for
C herself.3
The principle of ‘coverture’ was described in William Blackstone’s
Commentaries on the Laws of England as follows:4
“By marriage, the husband and wife are one person in law:
D that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated
and consolidated into that of the husband: under whose wing,
protection, and cover, she performs everything; and is
therefore called in our law-French a feme-covert; is said to
be covert-baron, or under the protection and influence of
E her husband, her baron, or lord; and her condition during
her marriage is called her coverture. Upon this principle, of
a union of person in husband and wife, depend almost all
the legal rights, duties, and disabilities, that either of them
acquires by the marriage. I speak not at present of the rights
F of property, but of such as are merely personal. For this
reason, a man cannot grant anything to his wife, or enter
into covenant with her: for the grant would be to suppose
her separate existence; and to covenant with her, would be
only to covenant with himself: and therefore it is also
2
G Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500–
1860. Cambridge, UK: Cambridge University Press
3
Fernandez, Angela “Tapping Reeve, Nathan Dane, and James Kent: Three Fading
Federalists on Marital Unity.” Married Women and the Law: Coverture in England
and the Common Law World, edited by Tim Stretton and Krista J. Kesselring,
McGill-Queen’s University Press, 2013, pp. 192–216.
H 4
Blackstone’s Commentaries on the Laws of England, Books III & IV (8thEdn.), 1778
JOSEPH SHINE v. UNION OF INDIA 921
[INDU MALHOTRA, J.]

generally true, that all contracts made between husband and A
wife, when single, are voided by the intermarriage.”
(Emphasis supplied)
On this basis, a wife did not have an individual legal liability for
her misdeeds, since it was legally assumed that she was acting under
the orders of her husband, and generally a husband and wife were not B
allowed to testify either for, or against each other.
Medieval legal treatises, such as the Bracton5 , described the nature
of ‘coverture’ and its impact on married women’s legal actions. Bracton
(supra) states that husbands wielded power over their wives, being their
‘rulers’ and ‘custodians of their property’. The institution of marriage C
came under the jurisdiction of ecclesiastical courts. It made wives live in
the shadow of their husbands, virtually ‘invisible’ to the law.
The principle of coverture subsisted throughout the marriage of the couple.
It was not possible to obtain a divorce through civil courts, which refused
to invade into the jurisdiction of the church. Adultery was the only ground D
available to obtain divorce.
The origin of adultery under Common Law was discussed in the English
case Pritchard v. Pritchard and Sims6, wherein it was held that:
“In 1857, when marriage in England was still a union for
E
life which could be broken only by private Act of Parliament,
under the common law, three distinct causes of action
available to a husband whose rights in his wife were violated
by a third party, who enticed her away, or who harboured
her or who committed adultery with her…In the action for
adultery, known as criminal conversation, which dates from F
before the time of BRACTON, and consequently lay originally
in trespass, the act of adultery itself was the cause of action
and the damages punitive at large. It lay whether the adultery
resulted in the husband’s losing his wife’s society and services
or not. All three causes of action were based on the
G
recognition accorded by the common law to the husband’s

5
Bracton: De Legibus Et ConsuetudinibusAngliæ(Bracton on the Laws and Customs
of England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115
Available at http://bracton.law.harvard.edu/index.html
6
[1966] 3 All E.R. 601 H
922 SUPREME COURT REPORTS [2018] 11 S.C.R.

A propriety which would have been hers had she been feme
sole.”
(Emphasis supplied)
In the Victorian Era7, women were denied the exercise of basic
rights and liberties, and had little autonomy over their choices. Their
B status was pari materia with that of land, cattle and crop; forming a
part of the ‘estate’ of their fathers as daughters prior to marriage, and as
the ‘estate’ of their husbandpost-marriage.8
Lord Wilson in his Speech titled “Out of his shadow:The long
struggle of wives under English Law”9 speaks of the plight of women
C during this era:
“8. An allied consequence of the wife’s coverture was that
she was not legally able to enter into a contract. Apart from
anything else, she had no property against which to enforce
any order against her for payment under a contract; so it
D was only a small step for the law to conclude that she did
not have the ability to enter into the contract in the first
place. If, however, the wife went into a shop and ordered
goods, say of food or clothing, which the law regarded as
necessary for the household, the law presumed, unless the
E husband proved to the contrary, that she had entered into
the contract as his authorised agent. So the shopkeeper
could sue him for the price if the wife had obtained the goods
on credit.
9. In the seventeenth century there was a development in the
F law relating to this so-called agency of necessity. It was an
attempt to serve the needs of wives whose husbands had
deserted them. The law began to say that, if a deserted wife
had not committed adultery, she could buy from the
shopkeeper all such goods as were necessary for her and,
even if (as was highly likely) the husband had not authorised
G
7
1807 – 1901 A.D.
8
Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760–1860.
The Historical Journal, 39, pp 703-722
9
The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9
October 2012
H Available at: https://www.supremecourt.uk/docs/speech-121009.pdf
JOSEPH SHINE v. UNION OF INDIA 923
[INDU MALHOTRA, J.]

her to buy them, he was liable to pay the shopkeeper for A
them. But the shopkeeper had a problem. How was he to
know whether the wife at the counter had been deserted
and had not committed adultery? Sometimes a husband even
placed a notice in the local newspaper to the effect, true or
untrue, that his wife had deserted him or had committed
B
adultery and that accordingly he would not be liable to pay
for her purchase of necessaries.….”
The remnants of ‘coverture’ sowed the seeds for the introduction
of ‘Criminal Conversation’ as an actionable tortby a husband against his
wife’s paramour inEngland.
C
Criminal Conversation as a tort, gave a married man the right to
claim damages against the man who had entered into a sexual relationship
with his wife. The consent of the wife to the relationship, did not affect
the entitlement of her husband to sue.
The legal position of matrimonial wrongs underwent a significant D
change with the passing of the Matrimonial Causes Act, 1857 in England10
Section 59 of this Act abolished the Common Law action for “criminal
conversation”.11 Section 33 empowered the Courts to award damages
to the husband of the paramour for adultery.12 The claim for damages
for adultery was to be tried on the same principles, and in the same
manner, as actions for ‘criminal conversation’ which were formerly tried E
at Common Law.13

10
Matrimonial Causes Act 1857; 1857(20 & 21 Vict.) C. 85
11
LIX. No Action for Criminal Conversation:
“ After this Act shall have come into operation no Action shall be maintainable in
England for Criminal Conversation.” F
12
XXXIII. Husband may claim Damages from Adulterers:
“ Any Husband may, either in a Petition for Dissolution of Marriage or for Judicial
Separation, or in a Petition limited to such Object only, claim Damages from any
Person on the Ground of his having committed Adultery with the Wife of such Petitioner,
and such Petition shall be served on the alleged Adulterer and the Wife, unless the
Court shall dispense with such Service, or direct some other Service to be substituted;
and the Claim made by every such Petition shall be heard and tried on the same
G
principle, in the same manner, and subject to the same or the like rules and regulations
as actions for criminal conversations are now tried and decided in Courts of Common
Law; and all the enactments herein contain with reference to the hearing and decision
of Petitions to the Courts shall, so far as may be necessary, be deemed applicable to
the hearing and decision of Petitions presented under this enactment..”
13
Id. H
924 SUPREME COURT REPORTS [2018] 11 S.C.R.

A The status of the wife, however, even after the passing of the
Matrimonial Causes Act, 1857 remained as ‘property of the husband’,
sincewomen had no right to sue either their adulterous husband or his
paramour.
Gender equality between the spouses came to be recognised in
B some measure in England,with the passing of the Matrimonial Causes
Act, 1923 which made‘adultery’ a ground for divorce, available to both
spouses, instead of only the husband of the adultrous wife. The right of
the husband to claim damages from his wife’s paramour came to be
abolished by The Law Reform (Miscellaneous Provisions) Act of 1970
on January 1, 1971. In England, adultery has always been a civil wrong,
C and not a penal offence.
5. SECTION 497 –HISTORICAL BACKGROUND
5.1. The Indo-Brahmanic traditions prevalent in India mandated
the chastity of a woman to be regarded as her prime virtue, to
D be closely guarded to ensure the purity of the male bloodline.
The objective was not only to protect the bodily integrity of the
woman, but to ensure that the husband retains control over her
sexuality, confirmingher ‘purity’ in order to ensurethe purity of
his own bloodline.14

E 5.2. The first draft of the I.P.C. 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.15

F Theviews of Lord Macaulay were, however, overruled
by the other members of the Law Commission, who were of
the opinion that the existing remedy for ‘adultery’ under
Common Law would be insufficient for the ‘poor natives’, who
would have no recourse against the paramour of their wife.16

G 14
Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications
(2003) at page 71.
15
156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43
at page 169
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
16
A Penal Code prepared by The Indian Law Commissioners, (1838), The Second
H Report on the Indian Penal Code
JOSEPH SHINE v. UNION OF INDIA 925
[INDU MALHOTRA, J.]

5.3. The debate that took place in order to determine whether A
‘adultery’ should be a criminal offence in India was recorded
in ‘Note Q’ of ‘A Penal Code prepared by the Indian Law
Commissioners’17. The existing laws18 for the punishment of
adultery were considered to be altogether inefficacious for
preventing the injured husband from taking matters into his
B
own hands.
The Law Commissioners considered that by not
treating‘adultery’ as a criminal offence, it may give sanction to
immorality. The Report19 states:
“ Some who admit that the penal law now existing on this C
subject is in practice of little or no use, yet think that the
Code ought to contain a provision against adultery. They
think that such a provision, though inefficacious for the
repressing of vice, would be creditable to the Indian
Government, and that by omitting such a provision we should
give a sanction to immorality. They say, and we believe with D
truth, that the higher class of natives consider the existing
penal law on the subject as far too lenient, and are unable
to understand on what principle adultery is treated with more
tenderness than forgery or perjury.
…That some classes of the natives of India disapprove of E
the lenity with which adultery is now punished we fully
believe, but this in our opinion is a strong argument against
punishing adultery at all. There are only two courses which
in our opinion can properly be followed with respect to this
and other great immoralities. They ought to be punished very F
severely, or they ought not to be punished at all. The
circumstance that they are left altogether unpunished does
not prove that the Legislature does not regard them with
disapprobation. But when they are made punishable the

17
G
A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord
Thomas Babington Macaulay, Note Q
18
The laws governing adultery in the Colonial areas were laid down in Regulation XVII
of 1817, and Regulation VII of 1819; the Law Commissioners observed that the
strict evidentiary and procedural requirements, deter the people from seeking redress.
19
A Penal Code prepared by The Indian Law Commissioners, (1838), The Second
Report on the Indian Penal Code H
926 SUPREME COURT REPORTS [2018] 11 S.C.R.

A degree of severity of the punishment will always be considered
as indicating the degree of disapprobation with which the
Legislature regards them. We have no doubt that the natives
would be far less shocked by the total silence of the penal
law touching adultery than by seeing an adulterer sent to
prison for a few months while a coiner is imprisoned for
B
fourteen years.”
(Emphasis supplied)
The Law Commissioners in their Report (supra) further stated:
“…..The population seems to be divided into two classes –
C those whom neither the existing punishment nor any
punishment which we should feel ourselves justified in
proposing will satisfy, and those who consider the injury
produced by adultery as one for which a pecuniary
compensation will sufficiently atone. Those whose feelings
of honour are painfully affected by the infidelity of their
D wives will not apply to the tribunals at all. Those whose
feelings are less delicate will be satisfied by a payment of
money. Under such circumstances we think it best to treat
adultery merely as a civil injury.
…No body proposes that adultery should be punished with
E a severity at all proportioned to the misery which it produces
in cases where there is strong affection and a quick sensibility
to family honour. We apprehend that among the higher
classes in this country nothing short of death would be
considered as an expiation for such a wrong. In such a state
of society we think it far better that the law should inflict no
F punishment than that it should inflict a punishment which
would be regarded as absurdly and immorally lenient.”
(Emphasis supplied)
The Law Commissioners considered the plight of women in this
country,which was much worse than that of women in France and
G England. ‘Note Q’ (surpa) records this as the reason for not punishing
women for the offence of adultery.
The relevant extract of ‘Note Q’ is reproduced herein below:
“ There is yet another consideration which we cannot wholly
leave out of sight. Though we well know that the dearest
H
JOSEPH SHINE v. UNION OF INDIA 927
[INDU MALHOTRA, J.]

interests of the human race are closely connected with the A
chastity of women, and the sacredness of the nuptial contract,
we cannot but feel that there are some peculiarities in the
state of society in this country which may well lead a humane
man to pause before he determines to punish the infidelity
of wives. The condition of the women of this country is
B
unhappily very different from that of the women of England
and France. They are married while still children. They are
often neglected for other wives while still young. They share
the attention (sic) of a husband with several rivals. To make
laws for punishing the inconstancy of the wife while the law
admits the privilege of the husband to fill his zenana with C
women, is a course which we are most reluctant to adopt. We
are not so visionary as to think of attacking by law an evil
so deeply rooted in the manners of the people of this country
as polygamy. We leave it to the slow, but we trust the certain
operation of education and of time. But while it exists, while
D
it continues to produce its never failing effects on the
happiness and respectability of women, we are not inclined
to throw into a scale already too much depressed the
additional weight of the penal law. We have given the reasons
which lead us to believe that any enactment on this subject
would be nugatory. And we are inclined to think that if not E
nugatory it would be oppressive. It would strengthen hands
already too strong. It would weaken a class already too weak.
It will be time enough to guard the matrimonial contract by
penal sanctions when that contract becomes just, reasonable,
and mutually beneficial.”
F
(Emphasis supplied)
Colonel Sleeman opposed the reasoning of the Law Commissioners on
this subject. The ‘backwardness of the natives’ to take recourse to the
courts for redress in cases of adultery, arose from ‘the utter hopelessness
on their part of getting a conviction.’He was of the view that if adultery
is not made a crime, the adulterous wives will alone bear the brunt of the G
rage of their husbands. They might be tortured or even poisoned. In his
view, offences such as adultery were inexcusable and must be punished.
Colonel Sleeman observed:
“The silence of the Penal Code will give still greater impunity
to the seducers, while their victims will, in three cases out of H
928 SUPREME COURT REPORTS [2018] 11 S.C.R.

A four, be murdered, or driven to commit suicide. Where
husbands are in the habit of poisoning their guilty wives
from the want of legal means of redress, they will sometimes
poison those who are suspected upon insufficient grounds,
and the innocent will suffer.
B …Sometimes the poorest persons will refuse pecuniary
compensations; but generally they will be glad to get what
the heads of their caste or circle of society may consider
sufficient to defray the expenses of a second marriage. They
dare not live in adultery, they would be outcasts if they did;
they must be married according to the forms of their caste,
C and it is reasonable that the seducer of the wife should be
made to defray these expenses for the injured husband. The
rich will, of course, always refuse pecuniary compensation,
and for the same reason that they would never prosecute the
seducer in a civil court. The poor could never afford so to
D prosecute in such a court; and, as I have said, the silence of
the Penal Code would be a solemn pledge of impunity to the
guilty seducer, under the efficient government like ours, that
can prevent the husband and father from revenging
themselves except upon the females.”20

E (Emphasis supplied)
This debate along with the recommendation of the Law
Commissioners was considered by the Indian Law Commissioners while
drafting the Indian Penal Code.
5.4. The relevant extract from the discussion on whether to
F criminalize adultery was as follows:
“We have observed that adultery is recognised as an offence
by the existing laws of all the Presidencies, and that an Act
has been lately passed by the Governor-General of India in
Council for regulating the punishment of the offence in the
G Bombay territories. Adultery is punishable by the Code Penal
of France. It is provided for in the Code of Louisiana. The
following are Mr. Livingston’s observations on the subject.
“Whether adultery should be considered as an offence
20
A Penal Code prepared by The Indian Law Commissioners, (1838), The Second
H Report on the Indian Penal Code
JOSEPH SHINE v. UNION OF INDIA 929
[INDU MALHOTRA, J.]

against public morality, or left to the operation of the civil A
laws, has been the subject of much discussion. As far as I
am informed, it figures in the penal law of all nations except
the English; and some of their most celebrated lawyers have
considered the omission as a defect.
Neither the immorality of the act, nor its injurious B
consequences on the happiness of females, and very
frequently on the peace of society and the lives of its members,
can be denied. The reason then why it should go unpunished
does not seem very clear.It is emphatically one of that nature
to which I have just referred, in which the resentment of the
injured party will prompt him to take vengeance into his own C
hands, and commit a greater offence, if the laws of his
country refuse to punish the lesser. It is the nature of man,
and no legislation can alter it, to protect himself where the
laws refuse their aid; very frequently where they do not; but
where they will not give protection against injury, it is in D
vain that they attempt to punish him who supplies by his own
energy their remissness. Where the law refuses to punish this
offence, the injured party will do it for himself, he will break
the public peace, and commit the greatest of all crimes, and
he is rarely or never punished. Assaults, duels,
assassinations, poisonings, will be the consequence. They E
cannot be prevented; but, perhaps, by giving the aid of the
law to punish the offence which they are intended to avenge,
they will be less frequent; and it will, by taking away the
pretext for the atrocious acts, in a great measure insure the
infliction of the punishment they deserve. It is for these F
reasons that the offence of adultery forms a chapter of this
title.”
Having given mature consideration to the subject,
we have, after some hesitation, come to the conclusion that
it is not advisable to exclude this offence from the Code.We G
think the reasons for continuing to treat it as a subject for
the cognizance of the criminal courts preponderate.….
…While we think that the offence of adultery ought
not to be omitted from the Code, we would limit its cognizance
to adultery committed with a married woman, and considering H
930 SUPREME COURT REPORTS [2018] 11 S.C.R.

A that there is much weight in the last remark in Note Q,
regarding the condition of the women of this country, in
deference to it we would render the male offender alone liable
to punishment.We would, however, put the parties accused
of adultery on trial together, and empower the Court, in the
event of their conviction, to pronounce a decree of divorce
B
against the guilty woman, if the husband sues for it, at the
same time that her paramour is sentenced to punishment by
imprisonment or fine. By Mr. Livingstone’s Code, the woman
forfeits her ‘matrimonial gains’, but is not liable to other
punishment.
C We would adopt Colonel Sleeman’s suggestion as to the
punishment of the male offender, limiting it to imprisonment
not exceeding five years, instead of seven years allowed at
present, and sanctioning the imposition of a fine payable to
the husband as an alternative, or in addition.”21
D (Emphasis supplied)
5.5. It was in this backdrop that Section 497 came to be included in
the I.P.C.
6. THE QUEST FOR REFORM
E 6.1. In June 1971, the 42nd Report of the Law Commission of India22
analysed various provisions of the I.P.C. and made several
important recommendations. With respect to the offence
of‘adultery’, the Law Commission recommended that the
adulterous woman must be made equally liable for prosecution,
F and the punishment be reduced from 5 years to 2 years. This
was however, not given effect to.
6.2. In August 1997, the Law Commission of India in its 156th Report23
noted that the offence of adultery under Section 497 is very
limited in scope in comparison to the misconduct of adultery in
G 21
A Penal Code prepared by The Indian Law Commissioners, (1838), The Second
Report on the Indian Penal Code
22
42nd Report on the Indian Penal Code, Law Commission of India
Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf
23
156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169
- 172
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
H
JOSEPH SHINE v. UNION OF INDIA 931
[INDU MALHOTRA, J.]

divorce (civil proceedings). The section confers only upon the A
husband the right to prosecute the adulterous male, but does not
confer any right on the aggrieved wife to prosecute her
adultererous husband. It was recommended to introduce an
amendment to incorporate the concept of equality between sexes
in marriage vis-à-vis the offence of adultery. The proposed
B
change was to reflect the transformation of women’s status in
Indian society.
However, the recommendation was not accepted.
6.3. In March 2003, the Malimath Committee on Reforms of Criminal
Justice System24, was constituted by the Government of India,
which considered comprehensive measures for revamping the C
Criminal Justice System. The Malimath Committee made the
following recommendation with respect to “Adultery”:
“16.3.1 A man commits the offence of adultery if he has
sexual intercourse with the wife of another man without
the consent or connivance of the husband. The object D
of this Section is to preserve the sanctity of the marriage.
The society abhors marital infidelity. Therefore, there
is no good reason for not meting out similar treatment
to wife who has sexual intercourse with a married man.
16.3.2 The Committee therefore suggests that Section E
497 of the I.P.C. should be suitably amended to the
effect that “whosoever has sexual intercourse with the
spouse of any other person is guilty of adultery……”
(Emphasis supplied)
The recommendations of the Malimath Committee on the F
amendment of Section 497 were referred to the Law Commission of
India, which took up the matter for study and examination. The same is
pending consideration.
7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE
Before addressing the issue of the constitutional validity of Section G
497 I.P.C., it would be of interest to review how‘adultery’ is treated in
various jurisdictions around the world.
24
Report of the Committee on Reforms of Criminal Justice System, Government of
India, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003)
Available at:https://mha.gov.in/sites/default/files/criminal_justice_system.pdf H
932 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Adultery has been defined differently acrossvarious jurisdictions. For
instance, adultery charges may require the adulterous relationship to be
“open and notorious,”25 or be more than a single act of infidelity, or
require cohabitation between the adulterer and the adulteress. Such a
definition would require a finding on the degree of infidelity.26 In other
instances, the spouses may also be punishable for adultery. Such a
B
provision raises a doubt as to how that may secure the relationship
between the spouses and the institution of marriage. Another variation,in
some jurisdictions is that cognizance of the offence of adultery is taken
only at the instance of the State, and its enforcement is generally a
rarity.
C 7.1. Various legal systems have found adulterous conduct sufficiently
injurious to justify some form of criminal sanction. Such conduct
is one, which the society is not only unwilling to approve, but also
attaches a criminal label to it.
• United States of America
D
In the United States of America, 17out of 50States continue
to treat ‘adultery’ as a criminal offence under the State law.27
The characterization of the offence differs from State to State.
In the case of Oliversonv. West Valley City 28, the
E constitutionality of the Utah adultery statute29 was challenged.
It was contended that the statute offends the right to privacy
and violates substantive due process of law under the U.S.
Constitution. The U.S. Court held that adultery is a transgression
against the relationship of marriage which the law endeavors to
protect. The State of Utah had an interest in preventing adultery.
F Whether to use criminal sanction was considered a matter
particularly within the ambit of the legislature. Given the special
25
Illinois Criminal Code, 720 ILCS 5/11-35, Adultery
“(a) A person commits adultery when he or she has sexual intercourse with another not
his or her spouse, if the behavior is open and notorious,…”
26
G Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30
Journal Of Family Law 45, 51-52 (1991)
27
AbhinavSekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery
in India, 10 Socio Legal Review 47 (2014)
28
875 F. Supp. 1465
29
Utah Code Ann. 76-7-103, “(1) A married person commits adultery when he voluntarily
has sexual intercourse with a person other than his spouse. (2) Adultery is a class B
H misdemeanour.”
JOSEPH SHINE v. UNION OF INDIA 933
[INDU MALHOTRA, J.]

interest of the State, it was considered rational to classify adultery A
as a crime.
A similar provision exists in the State of New York, wherein
adultery is treated as a Class B misdemeanor.30
By way of contrast, in the State of North Carolina, it was
held in the Judgment of Hobbs v.Smith31, that adultery should B
not be treated as a criminal offence. The Superior Court of
North Carolina, relied on the judgment of the U.S. Supreme Court,
in Lawrence v. Texas32 wherein it was recognized that the right
to liberty provides substantial protection to consenting adults with
respect to decisions regarding their private sexual conduct. The C
decision of an individual to commit adultery is a personal decision,
which is sufficiently similar to other personal choices regarding
marriage, family, procreation, contraception, and sexuality, which
fall within the area of privacy. Following this reasoning in
Lawrence, the Superior Court of the State of North Carolina
held that the State Law criminalizing adultery violated the D
substantive due process, and the right to liberty under the
Fourteenth Amendment to the U.S. Constitution, and the provision
criminalizing adultery was declared unconstitutional.
• Canada
E
In Canada, the Criminal Code of Canada under Section 172
imposes criminal sanctions for adulterous conduct. This provision
was introduced in 191833, and continues to remain on the Criminal
Code.
The Criminal Code of Canada prohibits endangering the morals F
of children in a home where one “participates in adultery or sexual
30
New York Penal Laws, Article 255.17-Adultery, “A person is guilty of adultery when
he engages in sexual intercourse with another person at a time when he has a living
spouse, or the other person has a living spouse. Adultery is a class B misdemeanour.”
31
No. 15 CVS 5646 (2017) [Superior Court of North Carolina)
32
539 US 558 (2003) G
33
Criminal Code of Canada, 1985, Section 172, “(1) Every one who, in the home of a
child, participates in adultery or sexual immorality or indulges in habitual drunkenness
or any other form of vice, and thereby endangers the morals of the child or renders
the home an unfit place for the child to be in, is guilty of an indictable offence and
liable to imprisonment for a term not exceeding two years.
(2) For the purposes of this section, “child” means a person who is or appears to be
under the age of eighteen years.” H
934 SUPREME COURT REPORTS [2018] 11 S.C.R.

A immorality or indulges in habitual drunkenness or any other form
of vice.”
Furthermore, Canada has a provision for granting divorce in cases
of “breakdown of marriages”, and adultery is a ground for
establishing the same.34
B • Malaysia
In Malaysia, adultery is punishable as a crime under the Islamic
Laws. However, the Law Reform (Marriage and Divorce) Act,
1976 made it a civil wrong, for all non-Muslims. Similar to the
position in Canada, this Act makes adultery a ground for granting
C divorce, as it is a proof of “Breakdown of Marriage”. 35
Interestingly though, the Act also allows either spouse, to be an
aggrieved party and claim damages from the adulterer or
adulteress.36
34
Divorce Act, 1968, “Section 8 (1) A court of competent jurisdiction may, on application
D by either or both spouses, grant a divorce to the spouse or spouses on the ground that
there has been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if:
(a) …..
(b) the spouse against whom the divorce proceeding is brought has, since celebration
of the marriage,
(i) committed adultery, or …..”
E 35
S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
“54. (1) In its inquiry into the facts and circumstances alleged as causing or leading
to the breakdown of the marriage, the court shall have regard to one or more of the
following facts, that is to say:
(a) that the respondent has committed adultery and the petitioner finds it intolerable
to live with the respondent…..”
36
F S. 58, Law Reform (Marriage and Divorce) Act, 1976.[Malaysia] states,
“58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a
party to the marriage praying for divorce and alleging adultery, the party shall make
the alleged adulterer or adulteress a co-respondent, unless excused by the court on
special grounds from doing so.
(2) A petition under subsection (1) may include a prayer that the co-respondent be
condemned in damages in respect of the alleged adultery.
G (3) Where damages have been claimed against a co-respondent— (a) if, after the
close of the evidence for the petitioner, the court is of the opinion that there is not
sufficient evidence against the co-respondent to justify requiring him or her to reply,
the co-respondent shall be discharged from the proceedings; or (b) if, at the conclusion
of the hearing, the court is satisfied that adultery between the respondent and co-
respondent has been proved, the court may award the petitioner such damages as it
may think fit, but so that the award shall not include any exemplary or punitive
H element.”
JOSEPH SHINE v. UNION OF INDIA 935
[INDU MALHOTRA, J.]

• Japan A
In Japan, the provision for adultery was somewhat similar to the
present Section 497 of I.P.C.; it punished the woman and the
adulterer only on the basis of the complaint filed by the husband.
In case the act of adultery was committed with the consent of
the husband, there would be no valid demand for prosecution of B
the offence37. This provision has since been deleted.38 Adultery
is now onlya ground for divorce in Japan under the Civil Code.39
• South Africa
In South Africa, in the case of DE v.RH40 The Constitutional
C
Court of South Africa struck down adultery as a ground for
seeking compensation by the aggrieved persons. The Court relied
on an earlier judgment of Green v. Fitzgerald41 wherein it was
held that the offence of adultery has fallen in disuse, and “has
ceased to be regarded as a crime”.42 The Court noted that
even though adultery was of frequent occurrence in South Africa, D
and the reports of divorce cases were daily published in the
newspapers in South Africa, the authorities took no notice of the
offence.
• Turkey
In Turkey, the decision of the Constitutional Court of Turkey E
from 199643 is another instance where the Court struck down
37
S. 183, Penal Code, 1907 [Japan], “Whoever commits adultery with a married woman
will be punished by prison upto two years. The same applies to the other party of the
adultery. These offences are only prosecuted on demand of the husband. If the husband
has allowed the Adultery, his demand is not valid.” [ as translated by Karl-Friedrich F
Lenz, in History of Law in Japan since 1868, ed. Wilhelm Rohl, published by Brill,
2005, at page 623]
38
H. Meyers, “Revision of Criminal Code of Japan” Washington Law Review & State
Bar Journal, Vol. 25, (1950) at pp. 104-134
39
Article 770, Civil Code, 1896. [Japan], “Article 770 (1)Only in the cases stated
in the following items may either husband or wife file a suit for divorce: (i)if a spouse
G
has committed an act of unchastity; ….”
40
RH v.DE (594/2013) [2014] ZASCA 133 (25 September 2014)
41
1914 AD 88
42
Id.
43
AnayasaMahkemesi, 1996/15; 1996/34 (Sept. 23, 1996)
See also, AnayasaMahakemsi, 1998/3; 1998/28 (June 23, 1998) and
AnayasaMahakemsi, 1997/45. 1998/48 (July 16, 1998) H
936 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the provision of adultery as a criminal offence from the Turkish
Penal Code of 1926. The Court noted that the provision was
violative of the Right to Equality, as guaranteed by the Turkish
Constitution since it treated men and women differently for the
same act.
B • South Korea
In South Korea, adultery as a criminal offence was struck
down by the Constitutional Court of Korea in,what is popularly
known as,the Adultery Case of February 26, 2015 44. The
Constitutional Court of Korea held that Article 241, which
C provided for the offence of adultery, was unconstitutional as it
violated Article 10 of the Constitution, which promotes the right
to personality, the right to pursue happiness, and the right to self-
determination. The right to self-determination connotes the right
to sexual self-determination that is the freedom to choose sexual
activities and partners. Article 241 was considered to restrict
D
the right to privacy protected under Article 17 of the Constitution
since it restricts activities arising out of sexual life belonging to
the intimate private domain. Even though the provision had a
legitimate object to preserve marital fidelity between spouses,
and monogamy, the court struck it down as the provision failed
E to achieve the “appropriateness of means and least
restrictiveness” The Court held as follows:
“In recent years, the growing perception of the Korean
society has changed in the area of marriage and sex with
the changes of the traditional family system and family
F members’ role and position, along with rapid spread of
individualism and liberal views on sexual life. Sexual life
and love is a private matter, which should not be subject
to the control of criminal punishment. Despite it is unethical
to violate the marital fidelity, it should not be punished by
criminal law….
G
…..
…The exercise of criminal punishment should be the last
resort for the clear danger against substantial legal
interests and should be limited at least. It belongs to a free
44
H Adultery Case, 27-1 (A) KCCR 20, February 26, 2015
JOSEPH SHINE v. UNION OF INDIA 937
[INDU MALHOTRA, J.]

domain of individuals for an adult to have voluntary sexual A
relationships, but it may be regulated by law when it is
expressed and it is against the good sexual culture and
practice. It would infringe on the right to sexual self-
determination and to privacy for a State to intervene and
punish sexual life which should be subject to sexual
B
morality and social orders.
The tendency of modern criminal law directs that the State
should not exercise its authority in case an act, in essence,
belongs to personal privacy and is not socially harmful or
in evident violation of legal interests, despite the act is in
contradiction to morality. According to this tendency, it is C
a global trend to abolish adultery crimes.
(Emphasis supplied)
The Court concluded that it was difficult to see how criminalization of
adultery could any longer serve the public interest of protecting the
D
monogamy-based marriage system,maintain good sexual culture, and the
marital fidelity between spouses.A consideration of Article 241 which
punishes adultery failed to achieve the appropriateness of means and
least restrictiveness. Since the provision excessively restricted a person’s
sexual autonomy and privacy by criminally punishing the private and
intimate domain of sexual life, the said penal provision was said to have E
lost the balance of State interest and individual autonomy.
8. PREVIOUS CHALLENGES TO ADULTERY IN INDIA
This court has previously considered challenges to Section 497
inter alia on the ground that the impugned Section was violative of
Articles 14 and 15 of the Constitution. F

8.1. In Yusuf Abdul Aziz v. State of Bombay45, Section 497 was
challenged before this Court inter alia on the ground that it
contravened Articles 14 and 15 of the Constitution, since the
wife who is pari delicto with the adulterous man, is not punishable
even as an “abettor.” A ConstitutionBench of this Court took the G
view that since Section 497 was a special provision for the benefit
of women, it was saved by Article 15(3) which is an enabling
provision providing for protective discrimination.

45
1954 SCR 930
H
938 SUPREME COURT REPORTS [2018] 11 S.C.R.

A In Yusuf Aziz(supra),the Court noted that both Articles 14 and
15 read together validated Section 497.
8.2. Later, in Sowmithri Vishnu v. Union of India & Anr.46, a three-
judge bench of this Court addressed a challenge to Section 497
as being unreasonable and arbitrary in the classification made
B between men and women, unjustifiably denied women the right
to prosecute her husband under Section 497.
It was contended that Section 497 conferred a right only
upon the husband of the adulterous woman to prosecute the
adulterer;however, no such right was bestowed upon the wife of
C an adulterous man. The petitioners therein submitted that Section
497 was a flagrant violation of gender discrimination against
women. The Court opined that the challenge had no legal basis
to rest upon. The Court observed that the argument really centred
on the definition, which was required to be re-cast to punish both
the male and female offender for the offence of adultery.
D
After referring to the recommendations contained in the
42nd Report of the Law Commission of India, the Court noted
that there were two opinions on the desirability of retaining Section
497. However it concluded by stating that Section 497 could not
be struck down on the ground that it would be desirable to delete
E it from the statute books.
The Court repelled the plea on the ground that it is commonly
accepted that it is the man who is the ‘seducer’, and not the
woman. The Court recognized that this position may have
undergone some change over the years, but it is for the legislature
F to consider whether Section 497 should be amended appropriately
so as to take note of the ‘transformation’ which the society has
undergone.
8.3. In V. Revathi v. Union of India47,a two-judge bench of this
court upheld the constitutional validity of Section 497, I.P.C. and
G Section 198(2) of the Cr.P.C. The petitioner contended that
whether or not the law permitted a husband to prosecute his
disloyal wife, a wife cannot be lawfully disabled from prosecuting
her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter
46
(1985) Supp SCC 137
47
H (1988) 2 SCC 72
JOSEPH SHINE v. UNION OF INDIA 939
[INDU MALHOTRA, J.]

on the wife in prosecuting her adulterous husband. Hence, the A
relevant provision is unconstitutional on the ground of obnoxious
discrimination.
This Court held that Section 497 I.P.C. and Section 198(2)
Cr.P.C. together form a legislative package. In essence, the
former being substantive, and the latter being largely procedural. B
Women, under these provisions, neither have the right to
prosecute, as in case of a wife whose husband has an adulterous
relationship with another woman; nor can they be prosecuted as
the pari delicto.
8.4. The view taken by the two-judge bench in Revathi (supra),that C
the absence of the right of the wife of an adulterous husband to
sue him, or his paramour, was well-balanced by the inability of
the husband to prosecute his adulterous wife for adultery,cannot
be sustained.The wife’s inability to prosecute her husband and
his paramour, should be equated with the husband’s ability to
prosecute his wife’s paramour. D

9. In the present case, the constitutionality of Section 497 is
assailed by the Petitioners on the specific grounds that Section 497 is
violative of Articles 14, 15 and 21.
9.1. Mr. Kaleeswaram Raj learned Counsel appearing for the
E
Petitioners and Ms. Meenakshi Arora, learned Senior
Counselappearing for the Intervenorsinter alia submitted that
Section 497 criminalizes adultery based on a classification made
on sex alone. Such a classification bears no rational nexus with
the object sought to be achieved and is hence discriminatory.
It was further submitted that Section 497 offends the Article F
14 requirement of equal treatment before the law and
discriminates on the basis of marital status. It precludes a woman
from initiating criminal proceedings. Further, the consent of the
woman is irrelevant to the offence. Reliance was placed in this
regard on the judgment of this Court in W. Kalyani v. State48. G
The Petitioners submit that the age-old concept of the wife
being the property of her husband, who can easily fall prey to
seduction by another man,can no longer be justified as a rational
basis for the classification made under Section 497.
48
(2012) 1 SCC 358 H
940 SUPREME COURT REPORTS [2018] 11 S.C.R.

A An argument was made that the ‘protection’ given to
women under Section 497 not only highlights her lack of sexual
autonomy, but also ignores the social repercussions of such an
offence.
The Petitioners have contended that Section 497 of the I.P.C.
B is violative of the fundamental right to privacy under Article 21,
since the choice of a partner with whom she could be intimate,
falls squarely within the area of autonomy over a person’s
sexuality. It was submitted that each individual has an unfettered
right (whether married or not; whether man or woman) to engage
in sexual intercourse outside his or her marital relationship.
C
The right to privacy is an inalienable right, closely associated
with the innate dignity of an individual, and the right to autonomy
and self-determination to take decisions. Reliance was placed
on the judgment in Shafin Jahan v. Asokan K.M. & Ors.49
where this Court observed that each individual is guaranteed the
D freedom in determining the choice of one’s partner, and any
interference by the State in these matters, would have a serious
chilling effect on the exercise of the freedoms guaranteed by
the Constitution.
The Petitioners placed reliance on the judgment of K.S.
E Puttaswamy v. Union of India50 wherein a nine-judge bench of
this Court held that the right to make decisions on vital matters
concerning one’s life are inviolable aspects of human personality.
This Court held that:
“ 169. …..The autonomy of the individual is the ability to
F make decisions on vital matters of concern to life. Privacy
has not been couched as an independent fundamental right.
But that does not detract from the constitutional protection
afforded to it, once the true nature of privacy and its
relationship with those fundamental rights which are
G expressly protected is understood. Privacy lies across the
spectrum of protected freedoms. The guarantee of equality
is a guarantee against arbitrary state action. It prevents
the state from discriminating between individuals. The

49
2018 SCC Online SC 343
50
H (2017) 10 SCC 1
JOSEPH SHINE v. UNION OF INDIA 941
[INDU MALHOTRA, J.]

destruction by the state of a sanctified personal space A
whether of the body or of the mind is violative of the
guarantee against arbitrary state action….”
(Emphasis supplied)
The Petitioners and Intervenors have prayed for striking
down Section 479 I.P.C. and Section 198(2) of the Cr.P.C. as B
being unconstitutional, unjust, illegal, arbitrary, and violative of
the Fundamental Rights of citizens.
9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefully
submitted that adultery must be retained as a criminal offence in
the I.P.C. She based her argument on the fact that adultery has C
the effect of breaking up the family which is the fundamental
unit in society. Adultery is undoubtedly morally abhorrent in
marriage, and no less an offence than the offences of battery, or
assault. By deterring individuals from engaging in conduct which
is potentially harmful to a marital relationship, Section 497 is D
protecting the institution of marriage, and promoting social well-
being.
The Respondents submit that an actwhich outrages the
morality of society,and harms its members, ought to be punished
as a crime. Adultery falls squarely within this definition. E
The learned ASG further submitted that adultery is not an
act that merely affects just two people;it has an impact on the
aggrieved spouse, children, as well as society.Any affront to the
marital bond is an affront to the society at large. The act of
adultery affects the matrimonial rights of the spouse, and causes F
substantial mental injury.
Adultery is essentially violence perpetrated by an outsider,
with complete knowledge and intention, on the family which is
the basic unit of a society.
It was argued on behalf of the Union of India that Section G
497 is valid on the ground of affirmative action. All discrimination
in favour of women is saved by Article 15(3), and hence were
exempted from punishment. Further, an under-inclusive definition
is not necessarily discriminatory.The contention that Section 497
does not account for instances where the husband has sexual
H
942 SUPREME COURT REPORTS [2018] 11 S.C.R.

A relations outside his marriage would not render it unconstitutional.
It was further submitted that the sanctity of family life, and
the right to marriage are fundamental rights comprehended in
the right to life under Article 21. An outsider who violates and
injures these rights must be deterred and punished in accordance
B with criminal law.
It was finally suggested that if this Court finds any part of
this Section violative of the Constitutional provisions, the Court
should read down that part, in so far as it is violative of the
Constitution but retain the provision.
C DISCUSSION AND ANALYSIS
10. Section 497 is a pre-constitutional law which was enacted in
1860. There would be no presumption of constitutionality in a
pre-constitutional law (like Section 497) framed by a foreign
legislature. The provision would have to be tested on the anvil of
D Part III of the Constitution.
11. Section 497 of the I.P.C. it is placed under Chapter XX of
“Offences Relating to Marriage”.
The provision of Section 497 is replete with anomalies and
incongruities,such as:
E
i. Under Section 497, it is only the male-paramour who is
punishable for the offence of adultery. The woman who is
pari delictowith the adulterous male, is not punishable, even
as an ‘abettor’.
The adulterous woman is excluded solely on the basis
F
of gender, and cannot be prosecuted for adultery51.
ii. The Section only gives the right to prosecute to the husband
of the adulterous wife. On the other hand, the wife of the
adulterous man, has no similar right to prosecute her husband
or his paramour.
G
iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C.
only empowers the aggrieved husband, of a married wife
who has entered into the adulterous relationship to initiate
proceedings for the offence of adultery.
51
H W Kalyani v. State, (2012) 1 SCC 358; at para 10.
JOSEPH SHINE v. UNION OF INDIA 943
[INDU MALHOTRA, J.]

iv. The act of a married man engaging in sexual intercourse A
with an unmarried or divorced woman, does not constitute
‘adultery’ under Section 497.
v. If the adulterous relationship between a man and a married
woman, takes place with the consent and connivance of
her husband, it would not constitute the offence of adultery. B
The anomalies and inconsistencies in Section 497 as stated above,
would render the provision liable to be struck down on the ground
of it being arbitrary and discriminatory.
12. The constitutional validity of section 497 has to be tested on
the anvil of Article 14 of the Constitution. C

12.1.Any legislation which treats similarly situated persons unequally,
or discriminates between persons on the basis of sexalone, is
liable to be struck down as being violative of Articles 14 and 15
of the Constitution, which form the pillars against the vice of
arbitrariness and discrimination. D
12.2.Article 14 forbids class legislation; however, it does not forbid
reasonable classification. A reasonable classification is permissible
if two conditions are satisfied:
i. The classification is made on the basis of an ‘intelligible
E
differentia’ which distinguishes persons or things that are
grouped together, and separates them from the rest of the
group; and
ii. The said intelligible differentia must have a rational nexus
with the object sought to be achieved by the legal provision.
F
The discriminatoryprovisions in Section 497 have to be
considered with reference to the classification made. The
classification must have some rational basis,52 or a nexus
with the object sought to be achieved.
With respect to the offence of adultery committed by two G
consenting adults, there ought not to be any discrimination

52
E.V. Chinnaiahv. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable
to a challenge on the ground of violation of Article 14 of the Constitution if its
intention is to give effect to Articles 15 and 16 or when the differentiation is not
unreasonable or arbitrary).
H
944 SUPREME COURT REPORTS [2018] 11 S.C.R.

A on the basis of sex alone since it has no rational nexus with
the object sought to be achieved.
Section 497 of the I.P.C., makes two classifications:
i. The first classification is based on who has the right to
prosecute:
B
It is only the husband of the married woman who
indulges in adultery,is considered to be an aggrieved person
given the right to prosecute for the offence of adultery.
Conversely, a married woman who is the wife of the
C adulterous man, has no right to prosecute either her husband,
or his paramour.
ii. The second classification is based on who can be prosecuted.
It is only the adulterous man who can be prosecuted for
committing adultery, and not the adulterous woman,even
D though the relationship is consensual; the adulterous woman
is not even considered to be an “abettor” to the offence.
The aforesaid classifications were based on the historical context
in 1860 when the I.P.C. was enacted. At that point of time,
women had no rights independent of their husbands, and were
E treated as chattel or ‘property’ of their husbands.
Hence, the offence of adultery was treated as an injury to the
husband, since it was considered to be a ‘theft’ of his property,
for which he could proceed to prosecute the offender.
The said classification is nolonger relevant or valid,and cannot
F withstand the test of Article 14, and hence is liable to be struck
down on this ground alone.
12.3.A law which deprives women of the right to prosecute, is not
gender-neutral. Under Section 497, the wife of the adulterous
male, cannot prosecute her husband for marital infidelity.
G Thisprovision is thereforeex facie discriminatory against
women,and violative of Article 14.
Section 497 as it stands today, cannot hide in the shadows
against the discerning light of Article 14 which irradiates anything
which is unreasonable, discriminatory, and arbitrary.
H
JOSEPH SHINE v. UNION OF INDIA 945
[INDU MALHOTRA, J.]

13. A law which could have been justified at the time of its A
enactment with the passage of timemay become out-datedand
discriminatory with the evolution of society and changed circumstances.53
What may have once been a perfectly valid legislation meant to protect
women in the historical background in which it was framed, with the
passage of time of over a century and a half, may become obsolete and
B
archaic.
A provision previously not held to be unconstitutional, can be
rendered so by later developments in society, including gender equality.54
Section 497 of the I.P.C. was framed in the historical context that
the infidelity of the wife should not be punished because of the plight of C
women in this country during the 1860’s. Women were married while
they were still children, and often neglected while still young, sharing the
attention of a husband with several rivals.55 This situation is not true 155
years afterthe provision was framed. With the passage of time, education,
development in civil-political rights and socio-economic conditions,the
situation has undergone a sea change. The historical background in which D
Section 497 was framed, is no longer relevant in contemporary society.
It would be unrealistic to proceed on the basis that even in a
consensual sexual relationship, a married woman, who knowingly and
voluntarily enters into a sexual relationship with another married man, is
a ‘victim’, and the male offender is the ‘seducer’. E

Section 497 fails to consider both men and women as equally
autonomous individuals in society.
In Anuj Garg v. Hotel Assn. of India,56 this Court held that:
“20. At the very outset we want to define the contours of the F
discussion which is going to ensue. Firstly, the issue floated
by the State is very significant, nonetheless it does not fall in
the same class as that of rights which it comes in conflict
with, ontologically. Secondly, the issue at hand has no social
G
53
Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222;
See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385
54
John Vallamattomv. Union of India, (2003) 6 SCC 611
55
‘A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord
Thomas Babington Macaulay, Note Q
56
(2008) 3 SCC 1 H
946 SUPREME COURT REPORTS [2018] 11 S.C.R.

A spillovers. The rights of women as individuals rest beyond
doubts in this age. If we consider (various strands of) feminist
jurisprudence as also identity politics, it is clear that time
has come that we take leave of the theme encapsulated under
Section 30. And thirdly we will also focus our attention on
the interplay of doctrines of self-determination and an
B
individual’s best interests.
……..
26. When a discrimination is sought to be made on the
purported ground of classification, such classification must
C be founded on a rational criteria. The criteria which in
absence of any constitutional provision and, it will bear
repetition to state, having regard to the societal conditions
as they prevailed in early 20th century, may not be a rational
criteria in the 21st century. In the early 20th century, the
hospitality sector was not open to women in general. In the
D last 60 years, women in India have gained entry in all spheres
of public life. They have also been representing people at
grassroot democracy. They are now employed as drivers of
heavy transport vehicles, conductors of service carriages,
pilots, et. al. ...”
E (Emphasis supplied)
The time when wives were invisible to the law, and lived in the
shadows of their husbands, has long since gone by. A legislation that
perpetuates such stereo-types in relationships, and institutionalises
discrimination is a clear violation of the fundamental rights guaranteed
F by Part III of the Constitution.
There is therefore, no justification for continuance of Section 497
of the I.P.C. as framed in 1860, to remain on the statute book.
14. Article 15(3) of the Constitution is an enabling provisionwhich
permits the State to frame beneficial legislation in favour of women and
G
children,to protect and uplift this class of citizens.
Section 497 is a penal provision for the offence of adultery, an act
which is committed consensually between two adultswho have strayed
out of the marital bond. Such a provision cannot be considered to be a
beneficial legislation covered by Article 15(3) of the Constitution.
H
JOSEPH SHINE v. UNION OF INDIA 947
[INDU MALHOTRA, J.]

The true purpose of affirmative action is to uplift women and A
empower them in socio-economic spheres. A legislation which takes
away the rights of women to prosecute cannot be termed as ‘beneficial
legislation’.
This Court in Thota Sesharathamma and Anr. v. Thota
Manikyamma (Dead) by Lrs. And Ors.57 held that: B
“Art. 15(3) relieves from the rigour of Art. 15(1) and charges
the State to make special provision to accord to women socio-
economic equality. As a fact Art. 15(3) as a fore runner to
common code does animate to make law to accord socio-
economic equality to every female citizen of India, C
irrespective of religion, race, caste or religion.”
In W. Kalyani v. State58 this Court has recognised the gender bias
in Section 497. The court in Kalyani (supra) observed that “The provision
is currently under criticism from certain quarters for showing a
string gender bias for it makes the position of a married woman D
almost as a property of her husband.”
The purpose of Article 15(3) is to further socio-economic equality
of women. It permits special legislation for special classes. However,
Article 15(3) cannot operate as a cover for exemption from an offence
having penal consequences. E
A Section which perpetuates oppression of women is unsustainable
in law, and cannot take coverunder the guise of protective discrimination.
15. The Petitioners have contended that the right to privacy under
Article 21 would include the right of twoadults to enter into a sexual
relationship outside marriage. F
The right to privacy and personal liberty is, however, not an absolute
one; it is subject to reasonable restrictions when legitimate public interest
is involved.
It is true that the boundaries of personal liberty are difficult to be
identified in black and white; however, such liberty must accommodate G
public interest. The freedom to have a consensual sexual relationship
outside marriage by a married person,does not warrant protection under
Article 21.
57
(1991) 4 SCC 312
58
(2012) 1 SCC 358 H
948 SUPREME COURT REPORTS [2018] 11 S.C.R.

A In the context of Article 21, an invasion of privacy by the State
must be justified on the basis of a law that is reasonable and valid. Such
an invasion must meet a three-fold requirement as set held in Justice K.
S. Puttaswamy (Retd.) &Anr. v. UOI &Anr.(supra): (i) legality, which
postulates the existence of law; (ii) need, defined in terms of a legitimate
State interest, and (iii) proportionality, which ensures a rational nexus
B
between the object and the means adopted. Section 497 as it stands
today, fails to meet the three-fold requirement, and must therefore be
struck down.
16. The issue remains as to whether ‘adultery’ must be treated as
a penal offence subject to criminal sanctions, or marital wrong which is
C a valid ground for divorce.
16.1.One view is that family being the fundamental unit in society,if
the same is disrupted, it would impact stability and progress. The
State,therefore, has a legitimate public interest in preserving the
institution of marriage.
D
Though adultery may be an act committed in private by
two consenting adults, it is neverthelessnot a victim-less crime.
It violates the sanctity of marriage, and the right of a spouse to
marital fidelity of his/her partner. It impacts society as it breaks
the fundamental unit of the family, causing injury not only to the
E spouses of the adulteror and the adulteress, it impacts the growth
and well-being of the children, the family, and society in general,
and therefore must be subject to penal consequences.
Throughout history, the State has long retained an area of
regulation in the institution of marriage. The State has regulated
F various aspects of the institution of marriage, by determining the
age when an adult can enter into marriage; it grants legal
recognition to marriage; it creates rights in respect of inheritance
and succession; it provides for remedies like judicial separation,
alimony, restitution of conjugal rights; it regulates surrogacy,
adoption, child custody, guardianship, partition, parental
G responsibility; guardianship and welfare of the child. These are
all areas of private interest in which the State retains a legitimate
interest, since these are areas which concern society and public
well-being as a whole.
Adultery has the effect of not only jeopardisingthe marriage
H between the two consenting adults, but also affects the growth
JOSEPH SHINE v. UNION OF INDIA 949
[INDU MALHOTRA, J.]

and moral fibre of children. Hence the State has a legitimate A
public interest in making it a criminal offence.
16.2.The contra view is that adulteryis a marital wrong, whichshould
have only civil consequences. A wrong punishable with criminal
sanctions,must be a public wrong against society as a whole,
and not merely an act committed against an individual victim. B
To criminalize a certain conduct is to declare that it is a
public wrong which would justify public censure, and warrant
the use of criminal sanction against such harm and wrong doing.
The autonomy of an individual to make his or her choices
with respect to his/her sexuality in the most intimate spaces of C
life, should be protected from public censure through criminal
sanction. The autonomy of the individual to take such decisions,
which are purely personal, would be repugnant to any interference
by the State to take action purportedly in the ‘best interest’ of
the individual.
Andrew Ashworth and Jeremy Horder in their commentary D
titled ‘Principles of Criminal Law’ 59 have stated that the
traditional starting point of criminalization is the ‘harm principle’
the essence of which is that the State is justified in criminalizing
a conduct which causes harm to others. The authors opine that
the three elements for criminalization are: (i) harm, (ii) wrong E
doing, and (iii) public element, which are required to be proved
before the State can classify a wrongful act as a criminal offence.
John Stuart Mill states that “the only purpose for which power
can be rightly exercised over the member of a civilized
community against his will is to prevent harm to others.”60
F
The other important element is wrongfulness. Andrew
Simester and Andreas von Hirsch opine that a necessary pre-
requisite of criminalization is that the conduct amounts to a moral
wrong.61 That even though sexual infidelity may be morally wrong
conduct, this may not be a sufficient condition to criminalize the
same. G
59
Oxford University Press, (7thEdn.) May 2013
60
Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman,
Roberts, & Green Co. 1869, 4 th Edn.
61
A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles
Of Criminalisation, Oxford: Hart Publishing (2011) H
950 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 17. In my view, criminal sanction may be justified where there is
a public element in the wrong, such as offences against State security,
and the like. These are public wrongs where the victim is not the individual,
but the community as a whole.
Adultery undoubtedly is a moral wrong qua the spouse and the
B family. The issue is whether there is a sufficient element of wrongfulness
to society in general, in order to bring it within the ambit of criminal law?
The element of public censure, visiting the delinquent with penal
consequences, and overriding individual rights, would be justified only
when the society is directly impacted by such conduct. In fact, a much
C stronger justification is required where an offence is punishable with
imprisonment.
The State must follow the minimalist approach in the criminalization
of offences, keeping in view the respect for the autonomy of the individual
to make his/her personal choices.
D The right to live with dignity includes the right not to be subjected
to public censure and punishment by the State except where absolutely
necessary. In order to determine what conduct requires State interference
through criminal sanction, the State must consider whether thecivil remedy
will serve the purpose. Where a civil remedy for a wrongful act is
E sufficient, it may not warrant criminal sanction by the State.
18. In view of the aforesaid discussion, and the anomalies in Section
497, as enumerated in para 11 above, it is declared that:
(i) Section 497 is struck down as unconstitutional being violative of
Articles 14, 15 and 21 of the Constitution.
F
(ii) Section 198(2) of the Cr.P.C.which contains the procedure for
prosecution under Chapter XX of the I.P.C. shall be
unconstitutional only to the extent that it is applicable to the offence
of Adultery under Section 497.
(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi(supra)
G and W. Kalyani(supra) hereby stand overruled.
Kalpana K. Tripathy Writ Petition allowed.

H