Updated: Jul 28

This article has been authored by Mohanish Parikh and Devarsh Shah, second-year students at Gujarat National Law University.

Introduction to decriminalization of adultery and the Joseph Shine judgement

“Adultery is a most conventional way to rise above the conventional”, this phrase of Vladimir Nabokov has surely found acceptance from the recent judgement of the Supreme Court in Joseph Shine v. Union of India. The apex court has, in its landmark decision, struck down the controversial Section 497 of the Indian Penal Code. The said ruling of the Honourable Court has been subject to austere criticism by few whereas it has been applauded by some. Thus, it has received mixed responses from the legal fraternity of India. However, it cannot be disproved that the case has put to rest a seven-decade old controversy surrounding the adultery law in India.

The Constitution Bench of the Supreme Court opined that Section 497 of the Indian Penal Code was archaic, arbitrary and led to the subjugation of the wife to her husband and hence the same violated Articles 14, 15 and 21 of the Indian Constitution. Justice Chandrachud relied on the decision in Navtej Johar and opined that sexual privacy is a fundamental right under Article 21 of the Constitution and the application of Section 497 of the Indian Penal Code was its unconcealed violation. The centuries old presumption that ‘wife was a property of her husband’ was clearly evident from the plain and literal interpretation of Section 497 and hence it was the need of the hour to get rid of such male chauvinistic laws. Justice Malhotra went as far as stating that adultery was morally wrong but it in itself was not sufficient to make it a criminal offence.

Judicial Precedents on constitutionality of Section 497 IPC

The ruling is the result of the evolutionary shift in the outlook of legal stalwarts of India. A series of landmark Supreme Court judgements on adultery stand overruled. The constitutional validity of adultery was first challenged before the Supreme Court in Yusuf Aziz v. State of Bombay. The petition asserted that penalizing only males was discriminatory and hence it violated Articles 14 & 15 of the Constitution. The Court upheld the constitutional validity of Section 497 of the IPC by declaring that it fell under the purview of Article 15(3) which enabled the State to make special provisions for women. Sowmithri Vishnu v Union of India was another case wherein adultery was challenged before the Supreme Court. The Court reiterated its earlier stand and further extended the vulnerable nature of women when it held that it was the man who seduced and woman was only a victim. The Court adopted a defensive approach towards women and in a way adjudicated them as weak and vulnerable. The Supreme Court gave yet another reasoning for not including women under the law in V Revathy v Union of India which stated that exclusion of women from the law saved the marriage and provided an opportunity to the couple to make up and disregard the offence.

Indian Jurisprudence has travelled a long way and the same is apparent from the study of judgements mentioned above. The legal luminaries which once considered exclusion of women from adultery law as a social shield because of the vulnerability of women and other social factors, have today decriminalized adultery for recognizing the equal rights of women. However, the contentions raised in the earlier judgement were quite dissimilar to those raised in the Joseph Shine case.

All the earlier cases pleaded that adultery was violative of Article 14 because only males were punished under the law. Joseph Shine was the first ever case which looked upon it through a different perspective by asserting that adultery law was discriminatory to women in as much as it treated a wife as a chattel of the husband. It was rightly contended that when a legislation is prejudicial to a particular group of people then it has solid social or religious endorsement. It is true that in 19th century, when IPC was enacted, polygamy was widely in practice throughout the country and it is no hidden fact that status of women, in pragmatic sense, was inferior to that of males in pre-independent India. As Justice Chandrachud has cited in his judgement, English law recognized adultery as a serious wrong because that interfered with a husband’s right over his wife. But the present-day world no longer appreciates such discriminatory dogma and strives to achieve equality among all classes and groups in the society and hence only the Supreme Court had to do away with such a discriminatory provision.

Preservation of the sanctity of marriage

When the petition for the decriminalization of adultery was being heard in the Supreme Court, the Centre filed an affidavit claiming that the decriminalisation of adultery would effectively lead to eroding the sanctity of marriage and fabric of the society at large.

There is a legal vacuum created due to the decriminalization of adultery law in India, where any person, man or woman engaging into extra-marital sexual relations is no longer a crime. It is undeniably accepted that the earlier existing penal provision, that is, Section 497 was lopsided, discriminatory, patriarchal and chauvinistic. But it is also an undisputable fact that the idea of decriminalizing adultery completely hits at the very roots of any marriage as it implicitly encourages an individual to engage into extra-marital relations. The point of contention is hence not on the constitutionality of Section 497 IPC rather it is regarding the harsh social repercussions that might follow subsequent to the decision of decriminalizing adultery. The decriminalization of adultery as effectively implemented has implied that there will no legal consequence for a person engaging in extra marital sexual relations. The absence of any penal provision criminalizing adultery may negatively encourage a person to completely disregard the sanctity of a sacred institution such as marriage by freely engaging into extra marital relations.

The debate regarding the law interfering into personal life has often arisen on this account due to contention that when law regulates such personal decisions of married individuals, it would infringe the liberty of an individual. The idea of absolute liberty may be not conducive for establishing social control because it will cause harm to various institutions of the society leading to chaotic situation and disharmony. There needs to be balance struck between interests of individual and the society wherein certain restrictions may be imposed on an individual’s liberty for the reason of protecting his other liberties.

An individual’s liberty not only pertains to freedom of engaging into extra-marital relations but also includes his personal choice to get involved to a stable institution of marriage, not only pertaining to sexual gratification, rather being based upon a relationship of mutual trust, respect and faith. The idea of decriminalising adultery implicitly entails that while an individual’s free will to engage into extra-marital sexual relations is sufficiently protected, on the other side another individual’s liberty to enter into an institution of marriage based on such trust and mutual faith has been essentially weakened. Can liberty be permitted to such an extent that it would eventually lead to the entire breakdown of a sacred and integral social institution such as marriage?

Conclusion and the way forward

While protecting stability of the institution of marriage is an essential for establishing a coherent and balanced social order, it has been argued in Joseph Shine that the concept of adultery being a penal offence amounts to State interference with an individual’s privacy. A line has to be drawn between interference with an individual’s privacy and maintenance of a certain level of social order by the State. In Sharda v. Dharmpal, it was held that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. The State has to be allowed to reasonably interfere in private matters of marriage such as adultery because if it does not do so it would it would essentially lead to the collapse of institution of marriage and a disturbed social order. In K.S Puttaswamy v. Union of India, although the right to privacy was declared to be a fundamental right, Justice Chandrachud has held that the right to privacy is not an absolute right. Therefore, the existence of a penal provision for adultery cannot be avoided on the grounds that it violates an individual’s privacy and rather it is only an exception to the right to privacy in order to safeguard a fundamental institution of the society, that is, the institution of marriage.

An individual should be not be permitted to breach fundamental moral and social obligations arising out of a sacred institution such as marriage and subsequently be permitted by law to hide under the veil of privacy and liberty. Therefore, now the time has come to do away with the inadequacies and discriminatory nature of the existing provision Section 497 of the IPC on adultery which the Supreme Court has held to be patriarchal and manifestly arbitrary. However, it has become inevitable to introduce a new penal provision on adultery which is gender neutral, so that it leads to the establishment of a strong, stable, coherent and egalitarian social order.

  • Instagram

©2020 by Indian Review of Advanced Legal Research. 

ga('require', 'ipMeta', { serviceProvider: 'dimension1', networkDomain: 'dimension2', networkType: 'dimension3', }); ga('ipMeta:loadNetworkFields'); ga('send', 'pageview');