Joseph Shine v. Union of India

What the Court held

Held. Section 497 is struck down as unconstitutional, being violative of articles 14, 15 and 21 of the Constitution. Section 198(2) of the Code of Criminal Procedure 1973 is unconstitutional only to the extent that it is applicable to the offence of adultery under section 497. The decisions in Sowmithri Vishnu, V. Revathi and W. Kalyani stand overruled.

The reasons, gathered from the four opinions, are these.

Article 14. The classification had no rational nexus with any legitimate object. A provision that punishes one participant in a consensual act and exempts the other, and that makes the offence disappear if a third person consents, cannot be defended as a rational scheme for protecting the institution of marriage.

Article 15(1). The section discriminated on the ground of sex. It was argued that article 15(3), which permits special provision for women, saved it; the Court held that article 15(3) permits provisions that are genuinely beneficial and does not save a provision founded on the assumption that a woman lacks the capacity to consent or is the property of her husband.

Article 21. The right to life includes dignity, privacy and sexual autonomy. A law which makes a wife's sexual agency depend on her husband's consent denies her all three. The Court described the consent or connivance element as showing that what section 497 protected was the husband's proprietary interest in his wife rather than the sanctity of the marriage.

On the object said to be served. The argument that the section protected the institution of marriage was rejected on its own terms: a provision that permits the act entirely where the husband consents does not protect marriage, and adultery remains a ground for divorce and can found a civil claim, which is where the marital wrong is properly dealt with.

On criminalisation generally. One of the opinions put it that where a civil remedy for a wrongful act is sufficient, it may not warrant a criminal sanction by the State.

Majority, concurrence and dissent

This is why the case is on the syllabus, and it is worth getting the vocabulary exactly right.

Five judges sat. Four separate opinions were delivered: by the Chief Justice for himself and one other judge, and by three judges separately. Every one of them concurred in the result, and section 497 was struck down unanimously.

So the correct description is: a unanimous decision with four concurring opinions and no dissent.

Three terms, distinguished.

A majority judgment is the opinion of more judges than not, where the court is divided. It states the law.

A concurring judgment agrees with the result and gives additional or different reasons. It does not dissent, and its reasoning is persuasive rather than binding of itself, though where all the judges concur the propositions common to their opinions are the ratio.

A dissenting judgment disagrees with the result. It binds nobody, and it is sometimes the seed of a later change in the law.

Why does it matter which you are reading? Because the ratio of a case decided by several opinions is what the necessary majority agreed on. Where four opinions give four different reasons for the same result, a proposition found in only one of them is not the ratio, however attractively it is put. In this case the propositions common to the opinions are that section 497 offends articles 14, 15 and 21, and that is what binds.

Compare [Indian Young Lawyers Association v. State of Kerala], where the Court divided four to one and there is a genuine minority judgment.

What survives, and what has happened since

Adultery remains a ground for divorce. Striking down the offence did not touch the matrimonial law. It also remains capable of founding a civil claim in an appropriate case.

Section 198(2) survives except as to adultery. The declaration was expressly limited to the extent that the sub section applied to section 497.

Section 497 is now gone twice over. The Indian Penal Code 1860 has been replaced by the Bharatiya Nyaya Sanhita 2023, and there is no offence of adultery in the Sanhita. So even if the 2018 decision had not struck the section down, the offence would not exist today.

That last point should be in an answer, because a student who says "section 497 of the Indian Penal Code has been struck down" is describing a Code that has itself been repealed.

A worked example

Kavita discovers that her husband Girish has been in a relationship with Meena, who is married to Sanjay. She asks three questions.

Can Kavita prosecute Girish for adultery? No, and she could not have done so even before 2018. Section 497 punished only the man who had intercourse with another man's wife, so Girish's conduct with a married woman was within it, but section 198(2) deemed only the husband of that woman, Sanjay, to be aggrieved, so only Sanjay could prosecute. Kavita had no standing at any stage. Today the question does not arise at all, the offence having been struck down and not re-enacted in the Bharatiya Nyaya Sanhita 2023.

Could Sanjay have prosecuted Meena? No, even before 2018, because section 497 ended by providing that the wife shall not be punishable as an abettor. She was neither an offender nor an abettor.

And if Sanjay had consented to the relationship? Then no offence was committed at all, by anybody, because the section applied only where the intercourse was without the consent or connivance of the husband. That element is the one the Court fastened on: a provision that vanishes when the husband permits the act is protecting his interest rather than the marriage.

What remedies remain to Kavita? The matrimonial ones. Adultery is a ground for divorce, and the striking down of the offence did not touch that.

Distinctions table

What this case does NOT decide

It does not make adultery lawful in the matrimonial sense. It remains a ground for divorce.

It does not strike down section 198(2) entirely. Only so far as it applied to section 497.

It does not hold that all gender-specific provisions are bad. Article 15(3) continues to permit genuinely beneficial special provision for women; what it does not do is save a provision founded on a stereotype of incapacity.

It is not a decision about privacy alone. Articles 14 and 15 did as much work as article 21.

Limits and criticism

The decision has been criticised as removing a deterrent to conduct that damages families. The answer given in the judgment is that a criminal sanction is not the right instrument where a civil remedy suffices, and that a provision which permits the act with the husband's consent was never a deterrent to the conduct as such.

It has also been criticised from the opposite direction, for stopping at decriminalisation rather than dealing with the position of the aggrieved spouse, of either sex, in the matrimonial law.

Four opinions make the ratio harder to state, which is a general cost of separate concurrences: the result is certain and the reasoning has to be assembled from four places.

Quick revision

Provision: IPC s.497, adultery; punished only the man; the wife not punishable as an abettor; no offence with the husband's consent or connivance. CrPC s.198(2), only the husband deemed aggrieved.

Facts: writ petition under article 32 by a non-resident Indian challenging both provisions; heard by a Constitution Bench of five judges because earlier decisions had upheld section 497.

Held: s.497 struck down as violative of articles 14, 15 and 21; s.198(2) unconstitutional only so far as it applies to s.497; Sowmithri Vishnu, V. Revathi and W. Kalyani overruled.

Reasons: no rational nexus; discrimination on the ground of sex not saved by article 15(3); denial of dignity, privacy and sexual autonomy; the consent element showing a proprietary interest; and a civil remedy sufficing.

Bench: five judges, four opinions, all concurring, no dissent.

Since: adultery remains a ground for divorce; and section 497 has not been re-enacted in the Bharatiya Nyaya Sanhita 2023.

Test yourself

1. What did section 497 provide, and what were its four peculiarities?

It made it an offence for a man to have sexual intercourse with a woman he knew or had reason to believe to be the wife of another man, without that man's consent or connivance, where the act did not amount to rape. Its peculiarities were that only the man was punished; that the section provided in terms that the wife shall not be punishable even as an abettor; that under section 198(2) of the Code of Criminal Procedure 1973 only the husband of the woman was deemed aggrieved, so nobody else could prosecute; and that the consent or connivance of that husband was a complete answer.

2. On what grounds was it struck down?

On articles 14, 15 and 21. Under article 14 the classification had no rational nexus with any legitimate object, since a provision punishing one participant in a consensual act and exempting the other, and disappearing altogether on a third person's consent, cannot rationally be said to protect marriage. Under article 15(1) it discriminated on the ground of sex, and article 15(3) did not save it because that clause permits genuinely beneficial provision and not one founded on a stereotype of incapacity. Under article 21 it denied the woman dignity, privacy and sexual autonomy by making her agency depend on her husband's consent.

3. Describe the composition of the bench and the form of the judgments.

A Constitution Bench of five judges heard the case, and four separate opinions were delivered: one by the Chief Justice for himself and one other judge, and three by individual judges. All four concurred in the result, so the decision was unanimous and there was no dissent. The correct description is therefore a unanimous decision with four concurring opinions, which is different from a majority judgment, since a majority presupposes that the court is divided.

4. Distinguish a concurring judgment from a dissenting one, and say why it matters.

A concurring judgment agrees with the result and supplies additional or different reasons; a dissenting judgment disagrees with the result. It matters because the binding part of a decision is what the necessary number of judges agreed upon: where several concurring opinions give different reasons for one result, a proposition appearing in only one of them is not the ratio. A dissent binds nobody at all, though it may be persuasive and has sometimes become the law later.

5. Does the decision make adultery lawful?

It removes the criminal sanction and nothing more. Adultery remains a ground for divorce under the matrimonial statutes and may found a civil claim in an appropriate case, and the Court said in terms that where a civil remedy for a wrongful act is sufficient it may not warrant a criminal sanction by the State. What was struck down was the offence, together with section 198(2) of the Code of Criminal Procedure 1973 to the extent that it applied to that offence.

6. Why should an answer mention the Bharatiya Nyaya Sanhita 2023?

Because section 497 belonged to the Indian Penal Code 1860, which has itself been repealed and replaced by the Sanhita, and the Sanhita contains no offence of adultery. So the section is gone twice over: struck down in 2018 and not re-enacted in 2023. A candidate who says only that section 497 of the Indian Penal Code has been struck down is describing a Code that no longer exists, and the extra sentence shows the position as it stands for an examination in December 2026.