Joseph Shine v Union of India (2018)

For Module 3.2 this case earns its place on three counts.

First, it is a clean example of judicial review of a penal provision — the Court did not read down s. 497 or confine it; it declared the section unconstitutional and struck it off the statute book, together with the procedural provision that made it enforceable.

Second, it is the syllabus's best illustration of a unanimous decision delivered in four separate opinions. The "majority and minority judgments" limb of the syllabus is usually taught through a split court. Joseph Shine teaches the opposite and equally examinable point: judges may agree entirely on the outcome and still write separately, because they differ on the route to that outcome. Knowing which proposition was shared by all five and which belonged to only one judge is exactly the skill the examiner is testing.

Third, it is a currency case. The provision struck down no longer exists in the successor code, and there has since been an authoritative clarification about the reach of the decision. A student who knows only the 2018 result gives half an answer.

There were no facts in the ordinary sense, and that is itself worth noting. The petition was not brought by an accused person defending a prosecution. It was a public interest petition under Article 32 filed by Joseph Shine, a non-resident Indian, challenging the constitutional validity of s. 497 IPC in the abstract.

The rule illustrated is that the vires of a statute may be challenged without a concrete prosecution. Where the complaint is that a law is itself unconstitutional, the injury alleged is the existence and operation of the law, and the Court may examine it on that footing.

The provision challenged read:

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 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.

The companion procedural provision was s. 198(2) CrPC 1973, which provided that for the purpose of a complaint relating to an offence under s. 497, no person other than the husband of the woman shall be deemed to be aggrieved, with a proviso allowing a person who had care of the woman on the husband's behalf to complain with the leave of the court.

Read together, the two provisions produced a scheme with four features: only a man could be the offender; only a man — the husband of the woman involved — could be the complainant; the woman was expressly immunised from liability even as an abettor; and the consent or connivance of the husband was a complete answer to the charge.

The petition was first placed before a three-Judge Bench, which issued notice in December 2017. Because the provision had already been upheld by earlier Benches, including a Constitution Bench, the matter was referred to a Bench of five Judges under Article 145(3), which requires a minimum of five Judges for a case involving a substantial question of law as to the interpretation of the Constitution.

1. Whether s. 497 IPC violates Article 14 — is the classification it makes (man punishable, woman not; husband's consent decisive) founded on an intelligible differentia bearing a rational nexus to the object of the law, and is the provision in any event manifestly arbitrary?
2. Whether s. 497 discriminates on the ground of sex contrary to Article 15(1), and whether it is saved as a special provision for women under Article 15(3).
3. Whether s. 497 violates Article 21 — the dignity, privacy and sexual autonomy of a married woman.
4. Whether s. 198(2) CrPC is bad for confining the right to complain to the husband.
5. Whether the earlier decisions upholding s. 497 — Yusuf Abdul Aziz v State of Bombay (1954), Sowmithri Vishnu v Union of India (1985) and V. Revathi v Union of India (1988) — remained good law.

For the petitioner. The section is a relic of a period in which a wife was regarded as her husband's possession. Its structure proves the point: the offence is complete only if the husband has not consented, which makes the criminality of the act depend on the will of a third party rather than on any wrong to the woman herself. It punishes only men, which is discrimination on the ground of sex under Art. 15(1) and cannot be defended as a protective measure under Art. 15(3), because exempting a woman from punishment on the footing that she is incapable of consent is not a benefit but a denial of agency. It denies the married woman's sexual autonomy and privacy under Art. 21, particularly after K.S. Puttaswamy v Union of India (2017).

For the Union. Adultery injures the institution of marriage and the family, and the State may legitimately use the criminal law to protect that institution. The classification is deliberate and protective: Parliament chose not to punish the wife. The provision had been upheld three times and should not be disturbed.

Interveners supported the petitioner: the wife could neither be prosecuted nor complain, and was thus the object of the proceeding rather than a participant in it.

The Court unanimously held:

1. Section 497 IPC is unconstitutional and is struck down, as violative of Articles 14, 15(1) and 21.
2. Section 198(2) CrPC is unconstitutional to the extent that it applies to the offence under s. 497.
3. Yusuf Abdul Aziz v State of Bombay (1954), Sowmithri Vishnu v Union of India (1985) and V. Revathi v Union of India (1988) are overruled.
4. Adultery is not a crime, but it remains a civil wrong. It continues to be a ground for divorce and for judicial separation under the matrimonial statutes, and may found a claim in civil law.
5. The Court further observed that if adultery drives a spouse to suicide, the facts may, on evidence, make out abetment of suicide under s. 306 IPC. This observation was made expressly by way of illustration of what the judgment did not decide, and is best treated as obiter.

State the ratio in one sentence, and it is this:

A penal provision which makes the criminality of an act depend on the consent of the husband of the woman involved, which punishes only the man and treats the woman as incapable of consent, is founded on a stereotype of the married woman as the property of her husband; it fails the equality guarantee under Article 14 and is discrimination on the ground of sex under Article 15(1), and it invades the dignity and sexual autonomy protected by Article 21. Adultery may be a moral wrong and a matrimonial wrong; it is not a fit subject for the criminal law.

The subsidiary ratio on s. 198(2) CrPC is that a procedural provision which confines the right to set the criminal law in motion to the husband alone falls with the substantive offence, since it has no independent existence once s. 497 is gone.

What is not the ratio. The observation about s. 306 IPC is obiter. So are the general remarks in the several opinions about the historical origins of the offence, the position in other jurisdictions, and the desirability of legislative reform — these explain the reasoning but decide nothing.

The four opinions and what each added

This is the part of the case the examiner is most likely to test, because the syllabus names "majority and minority judgments" expressly. The answer here is that there was no minority: the decision was unanimous in result and in the operative order, but was delivered in four separate opinions. Separate concurrences are written when judges agree on the disposal but wish to place the decision on a different or an additional footing; they matter because the width of the precedent depends on how many judges accepted each proposition.

Misra CJ, for himself and Khanwilkar J. The lead opinion held that s. 497 is a pre-constitutional provision resting on a conception of the wife as the husband's chattel. Its object could not be the protection of the sanctity of marriage, because the section leaves the sanctity of marriage untouched wherever the husband consents. A provision that permits the very act it punishes, at the option of one spouse, does not answer any rational object and is manifestly arbitrary. The Chief Justice also invoked constitutional morality — the proposition that the validity of a law is tested against the values of the Constitution and not against prevailing social morality — and dignity under Art. 21.

Nariman J. His concurrence supplied the historical and Article 15 analysis. He traced the offence back through the drafting of the Penal Code, noting that the original draft prepared under Macaulay had not proposed adultery as a crime at all, preferring to leave it to civil remedies; the offence was introduced later. He held that s. 497 discriminates on the ground of sex within Art. 15(1) and is not saved by Art. 15(3), since a provision that exempts women on the assumption that they lack sexual agency is not a "special provision" in their favour. He applied the manifest arbitrariness test formulated in Shayara Bano v Union of India (2017), and struck down both s. 497 and s. 198(2) CrPC.

Chandrachud J. His concurrence is the autonomy and privacy opinion. Building on K.S. Puttaswamy v Union of India (2017), he held that the section deprives a married woman of sexual agency within the marriage: it does not protect her, it silences her. Marriage does not entail a surrender of individual autonomy, and the criminal law may not enforce a model of marriage in which one spouse controls the sexuality of the other. He identified the section's operative assumption — that the woman is the passive object of a transaction between two men — as a gender stereotype which the Constitution does not permit the State to enact into law.

Malhotra J. Her concurrence is doctrinally the narrowest and is therefore useful for teaching the difference between grounds. She did not rest on manifest arbitrariness. She applied the orthodox classification test under Art. 14 and held that s. 497 fails it: the differentia between the man and the woman participating in the same act bears no rational nexus to the object of preserving the sanctity of marriage, and the exemption of the woman is not intelligible on any protective rationale. She was clearest that adultery remains a civil wrong and a ground for matrimonial relief, and that the removal of the criminal sanction leaves the family law untouched.

Manifest arbitrariness

The doctrine applied by Misra CJ and Nariman J comes from Shayara Bano v Union of India (2017), where it was used to strike down the practice of instantaneous triple talaq. Its content is that legislation may be struck down under Art. 14 where it is capricious, irrational or without an adequate determining principle, or is excessive and disproportionate — independently of the classification test. This is worth naming precisely in an answer, because it is the modern route to invalidity under Art. 14 and Joseph Shine is one of its leading applications. Note also that not every member of the Bench used it: Malhotra J reached the same result by the classification test.

Constitutional morality

The second doctrinal thread is constitutional morality: the principle that when a law is tested against the Constitution, the standard is the morality of the Constitution — liberty, equality, dignity, fraternity — and not the popular morality of the day. The Bench applied it in Joseph Shine and in Navtej Singh Johar v Union of India, decided a few weeks earlier in the same year. The doctrine matters here because the Union's defence of s. 497 was, in substance, an appeal to social morality about marriage.

1. The offence has been repealed by the legislature. The Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code with effect from 1 July 2024, contains no adultery offence at all. The Parliamentary Standing Committee that examined the Bill had recommended that adultery be re-enacted in a gender-neutral form, but that recommendation was not accepted, and the enacted Sanhita omits the offence. The corresponding procedural position follows from the Bharatiya Nagarik Suraksha Sanhita 2023, which replaced the CrPC on the same date and carries no equivalent of s. 198(2) referable to adultery. The legislature has therefore given effect to the decision rather than sought to reverse it.

2. The armed forces clarification (2023). On 31 January 2023 a Constitution Bench (K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar JJ) disposed of an application by the Union of India and clarified that the 2018 judgment does not bar disciplinary proceedings against armed forces personnel for adulterous conduct. The reasoning is narrow and should be stated narrowly: the 2018 Bench was concerned only with the validity of a penal provision in the general criminal law and did not consider the Army Act 1950 (ss. 45 and 63), the Air Force Act 1950 (ss. 45 and 65) or the Navy Act 1957 (ss. 54 and 74), which deal with conduct unbecoming and conduct prejudicial to good order and discipline. Those provisions operate in a separate disciplinary field and were left untouched.

3. Civil and matrimonial law is unchanged. Adultery continues to be a ground for divorce and judicial separation under the personal-law statutes, and evidence of adultery remains relevant to matrimonial proceedings. The decriminalisation removed the criminal sanction, not the matrimonial consequence.