# JOSEPH SHINE v. UNION OF INDIA

- **Citation:** [2018] 11 S.C.R. 765
- **Court:** Supreme Court of India
- **Decided:** 2018-09-27
- **Bench:** Dipak Misra, R.F. Nariman, A.M. Khanwilkar, Dr. D.Y. Chandrachud, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joseph-shine-v-union-of-india-32382
- **Pages:** 186

## Headnote

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
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
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 -
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,
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
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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
of s. 497 - Therefore, s. 497 IPC violates Art. 14 - It is based on
gender stereotypes about the role of women and violates the nondiscrimination 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
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
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)
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.
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
Constitution and not to "existing law" - s. 497 is, in constitutional
language, an

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[2018] 11 S.C.R. 765
JOSEPH SHINE
v.
UNION OF INDIA
(Writ Petition (Criminal) No. 194 of 2017)
SEPTEMBER 27, 2018
[DIPAK MISRA, CJI, R.F. NARIMAN,
A.M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
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
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
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 -
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,
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
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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
of s. 497 - Therefore, s. 497 IPC violates Art. 14 - It is based on
gender stereotypes about the role of women and violates the nondiscrimination 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
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
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)
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.
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
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
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highlights the lack of sexual agency that the Section imputes to 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
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
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.
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
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
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
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
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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
to to pave the same path.
Doctrine/Principle:
Principle of Conventure - Explained.
Maxim:
'Cessante ratione legis, cessat ipsa lex' - Applicability of.
Words & Phrases:
'Adultery' - Meaning of.
'Crime' - Meaning of.
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
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
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
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
individual fascination, but should be founded on the solid
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bedrock of change that the society has perceived, the
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
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]
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
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
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
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
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]
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2.4 Section 198 CrPC deals with a "person aggrieved". Subsection (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
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
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
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]
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
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
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.
Black's Law Dictionary - referred to.
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3. There cannot be a patriarchal monarchy over the daughter
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
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.
[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
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
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.
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
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]
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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
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.
[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
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
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
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
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
commitment, if punishment is meted out to either of them or a
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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 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
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. [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
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
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)
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
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
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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)
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
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.
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
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
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
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
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laws enacted before the Constitution came into force, as is clear
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
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
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]
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
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
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. 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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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
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
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,
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]
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
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
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
woman being the victim permeate the judgment, which is no
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longer the case today. The moving times have not left the law
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
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
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
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.
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): ArabicEnglish 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
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.
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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
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.
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
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]
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
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
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
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prosecute for adultery rests only with the husband of the woman.
[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]
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
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
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
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
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
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]
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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
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, nondiscrimination 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
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
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.
[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
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
relationship between a man and a woman is consensual is of no
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significance to the offence, if the ingredients of the offence are
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
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
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. 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
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
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
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]
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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
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
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
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
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
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
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
in a marital relationship who can consent to his spouse having
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sexual intercourse with another.