INDIAN INSTITUTION OF LEGAL
STUDIES,COOCHBEHAR
SUBJECT – LAW OF CRIMES 1
TOPIC – Joseph Shine vs. Union of India,
Supervised By: Mr. Abhirup Bhattacharjee(Asst. Professor in Law)
NAME: Rima Naim
ROLL NO.:
(Admit card No.) –
(Class Roll. No.) – 32
COURSE: LL.B 3 Years
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SEMESTER:: ii
ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my thanks to Mr.
Abhirup Bhattacharjee, Indian Institute of Legal Studies Coochbehar, for his invaluable
guidance, sound advice and affectionate attitude during the course of my studies.
I have no hesitation in saying that she molded raw clay into whatever I am through his
incessant efforts and keen interest shown throughout my academic pursuit. It is due to his
patient guidance that I have been able to complete the task.
I would also thank the Indian institute of Legal Studies, Coochbehar Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and making
available the books for this project research paper.
Finally, I thank my beloved parents for supporting me morally and guiding me throughout the
project work.
Date: 12/10/2021
Rima Naim
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NAME
TABLE OF CONTENTS
Acknowledgement……………………………………………….
…………….…
Research
Methodology…………………………………………………………….
………
A. Aims and Objectives…………………………………………….
……………………
B. Statement of Problem……………………………………………….
……………………
C. Research Questions……………………………………………………….
……………
D. Hypothesis………………………………………………………………
E. Method of Research…………………….……………………………….
………………
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F. Citation……………………………………………………………………....
Table of
Cases………………………………………………………………………
Abstract
Review of literature
Chapter 1- Case Analysis
Chapter 2- Introduction
Chapter 3- Facts
Chapter 4- contentions
Chapter 5- Issues raised
Chapter 8- Previous judgements
Chapter 9- Court observations
Chapter 10- Critical analysis
Conclusion…………………………………………………………………
…
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Bibliography………………………………………………………………
……
Table of Cases
Common Cause v. Union of India and ors. (2018) 5 SCC 1
E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3
Government of Andhra Pradesh v. P B Vijayakumar (1995) 4 SCC 520
Independent Thought vs. Union of India (2017) 10 SCC 800
Joseph Shine v. Union of India
Shayara Bano v. Union of India (2017) 9 SCC 1
Sowmithri Vishnu v. Union of India
Yusuf Abdul Aziz v. State of Bombay
S. Puttaswamy and Anr. Vs Union of India and others (2017) 10 SCC 1
V Revathi v. Union of India
W. Kalyani vs. State
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Research Methodology
(A) AIMS AND OBJECTIVES
This study is carried out with the following objectives:
(B) STATEMENT OF PROBLEM
Adultery is a universal occurrence of human beings. It is threatening the heart of the family life and the stability
of the marriage institution and could lead to uncertainty about the fatherhood of marriage. The question of law
is not only a moral one, it has been addressed in numerous avenues over the last couple of millennia. The legal
implications of adultery vary depending on location, communitarian values, the era in history and the dominant
ideology. There have been many controversies and discussions about whether or not in India adultery should be
a crime. Adultery was an offence under the Indian Penal Codification Code until the Apex Court in India
decriminalised adultery in the landmark judgement on the grounds that this principle was archaic and
discriminatory in terms of gender. For reasons more than one, the Supreme Court’s decision in Joseph Shine v.
Union of India, which struck Section 497 of the Indian Penal Code and Section 198(2) of the Code is
monumental. The Court has seldom defined a semantic feature of a penal code in its institutional history.
(C) RESEARCH QUESTIONS
1) In Joseph Shine v. The Union of India, what was the rule on adultery before the landmark ruling by the
Supreme Court?
2) In the USA and in England and in other countries what is adultery’s juridical status? Is it a felony or a
divorce only?
3) In a seminal decision of Joseph Shine v. Union of India, what was the Supreme Court strategy to
decriminalise adultery?
(D) HYPOTHESIS
Prior to the landmark ruling, the rule on adultery was an archaic law that discriminated against women and men.
In ruling former section 497 of the Indian Penal Code as unconstitutional, the Supreme Court was right.
(E) SCOPE OF RESEARCH
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This study will be devoted to the Adultery Law in India, before and after Joseph Shine v. Union of India[2]
judgement. Initially, the Victorian Adultery Statute, which was practised for 165 years now. Secondly, the
question of the constitutionality of Section 497 of the Indian Penal Code has, in the past, been checked. Thirdly,
the critique of Joseph Shine v. Union, India ‘s latest decision on the decriminalisation of old adultery law.
Finally, the dissertation deals with the different countries’ adultery legislation and penalties.
(F) CITATION
Blue book mode of Citation is being adopted throughout the project.
ABSTRACT
Criminal Law is a body of International law designed to prohibit certain categories of conduct commonly
viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their
perpetration. Principally, it deals with genocide, war crimes, crimes against humanity, as well as the crime of
aggression. This article also discusses crimes against international law, which may not be part of the body of
international criminal law. “Classical” international law governs the relationships, rights, and responsibilities of
states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation
of those prohibition imposed by individual states. International criminal law comprises elements of both in that
although its sources are those of international law, its consequences are penal sanctions imposed on individuals.
Some precedents in international criminal law can be found in the time before World War I. However, it was
only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed
in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm
II of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After World War II,
the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity
committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced
judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The
International Military Tribunal for the Far East). It operated from 1946 to 1948.
REVIEW OF LITERATURE
1. Alyssa Miller, “Punishing Passion: A Comparative Analysis of Adultery Laws in the United States of
America and Taiwan and their Effects on Women Alyssa Miller”, Fordham International Law Journal
Volume 41, Issue 2 Article 4, Pg. 425-470.
This comprehensive analysis contrasts the adultery law between the United States and Taiwan. The
author deeply explores the history of the Adultery Act and its development in years of modernization
and globalisation in the Americas and Taiwan. The article compares adultery (having a wedding sex)
with passion. The article also states that, although adultery is legally illegal in most states in the US, the
accused seldom receive serious penalties such as imprisonment. This is not the case for Taiwan alone,
however. Adultery is condemned by other countries in the Middle East and adulterous women are more
spiteful and physical or psychological than adulterous men.
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The analyst then goes on to rationalise why Adultery must not be considered a crime, and how it is
discriminated against by women, and puts forward arguments in support of decriminalising adultery.
The author compares the laws of adultery in the United States of America and Taiwan in the following
points –
Repercussions for Adultery in Society
Present and Past Legal status of adultery in the United States and Taiwan
The rate of women convicted of the offence
2. Abha Singh, “Decriminalization of Adultery: A Setback to the Institution of marriage in India”, Outlook
India (27 September 2018).
The author Abha Singh criticises Joseph Shine v. Union of India‘s Supreme Court judgement. The
strongly believes that marriage is a sacrament and not a legal form of infidelity. The Author believes that
the divorce rates in Indian is already rising and this decision, which only increases the rates of failed
marriages by decriminalising adultery.
3. Soutik Biswas, “Adultery no longer a criminal offence in India” BBC News, Delhi (27 September 2018)
The paper highlights Joseph Shine v. Union of India[4], the Indian judgement. The article summarises
the judgement briefly and discusses the reasons behind the archaic law. The article also incorporates
criticism of the new law by lawyers and politicians. The author then covers countries where adultery is a
criminal offence.
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CHAPTER - 1
Case analysis
Joseph Shine v. Union of India
‘A landmark judgement which decriminalizes adultery in India’
Supreme Court Bench: CHIEF JUSTICE DIPAK MISHRA, JUSTICE A. KHANWILKAR, JUSTICE R. F.
NARIMAN, JUSTICE D. Y. CHANDRACHUD, JUSTICE INDU MALHOTRA
Parties: Petitioner(s) – Joseph Shine,
Respondent(s) – Union of India
Date of decision: 27th September 2018
CHAPTER - 2
Introduction
Adultery is defined under Section 497 of the Indian Penal Code. Which states that whoever has sexual
intercourse with a person who is and whom he knows and reason to believe to be the wife of another man,
without the consent or connivance of that man. Such sexual intercourse does not amount to the offence of rape
and is guilty of adultery and shall be punished with imprisonment of either description for a term which may
extend to the five years or with fine or both.
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Adultery in India was based on the notion of patriarchy and male chauvinism. This offence makes a man
criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband
consents or connives to such an act it will no longer be adultery. There is no right to a woman in case her
husband commits adultery. In ancient history, adultery was considered to be a sinful act either done by a
married man or woman. Adultery in India does not treat a woman as a culprit but as a victim who has been
seduced by a man to do such an act. This law is violative of our constitutional principles i.e. equality, non-
discrimination, right to live with dignity and so on. Adultery has been struck down as an offence in as many as
60 countries including South Korea, South Africa, Uganda, Japan etc., on being gender discriminative and
violating the right to privacy. Even Lord Macaulay, the creator of the penal code objected its presence in the
penal code as an offence rather suggested that it should be better left as a civil wrong. The law evolves with the
time and many recent judgements have increased the ambit of fundamental rights in conformity with changing
societal values and increasing individual liberty. This judgement joins them in creating history by striking down
158-year-old law which has lost its relevance with changing social and moral conditions.
In such case the wife shall not be punishable as an abettor. This section came under the purview of court many
times and also been discussed but the Supreme Court held it valid. Supreme Court on 27 th September 2018 in
the case of Joseph Shine v. Union of India has bought down the 158 years old Victorian morality law on
adultery. The growth of concept of adultery in these eras are well discussed in the judgment. As discussed in the
relic of Victorian 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.
The petition was filed by a non-resident of Kerala named Joseph Shine who has raised question on the
constitutionality of the Section 497 of the Indian Penal Code. The judgment has overruled all the past judgments
which upholds the criminalization of adultery. The question arose whether adultery be dealt under crime or not.
The court was of the opinion that adultery does not fit in the concept of crime. 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.
Now, adultery has become legal but it is still not ethical with the society. The institution of marriage is based
upon the trust between both the parties, i.e., Husband and wife. Therefore, Hon’ble Supreme Court of India did
not interfere in the personal and moral lives of the people.
Currently, adultery is only considered as a civil wrong and the remedy for the act of adultery is only divorce.
CHAPTER - 3
Background
There were several times before where the question has been arisen on the constitutional validity of Section 497
of Indian Penal Code and Section 198 of Criminal Procedure Code in front of Supreme Court of India. It has
been begin with the case of Yusuf Abdul Aziz v. State of Bombay where the husband was accused of adultery
under Section 497 of Indian Penal Code.
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But when the complaint was filed, the husband went to the Bombay High Court to check the constitutional
validity of the provisions under Article 228 of the Constitution of India. The case was decided against the
husband and an observation was made by Justice Chagla about the assumption laid down in Section 497. 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 this offence is only cognizable with the consent of the husband emphasizes 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 favor of doing away with Section 497 altogether.A challenge was raised before
the court which was only to the restriction on treating a wife as an abettor. This provision was supposed to be
violative of Article 14 of the Indian Constitution but the court held that this provision was safeguarded by
Article 15(3) of the constitution of India which provides for special provisions for women and children. This
history of adultery depicts that section 497 clearly provides that adultery law was always in favor of husband,
for him to reserves an ownership over the sexual relationship of his wife.
Therefore, this section was never been in favor to the benefit for the women. This law provides that any person
who are engaged in sexual relation with the wife of another man and the husband of that women gives his
consent for the same then such an act won’t be charged for adultery. This clearly denotes that how women are
considered as an object in the hands of their husbands.
There was another case Sowmithri Vishnu v. Union of India, where the challenges were made before the court
on the basis of three grounds:
Section 497 does not give any right to wife to punish a woman with whom her husband has committed
adultery.
This section does not give any right to the wife to prosecute her husband for the act of adultery.
This section does not cover cases where husband had sexual relations with an unmarried woman.
At first sight, it may appear that this section was for the benefit for the women but on deep examination,
it was founded that the provisions are contained which are based on the assumptions that women are like
chattels of men. In this case, Chief Justice Chandrachud stated that by definition, the offence of adultery
can be committed only by men and not by women. This case fails to deal with the actual problem, i.e.,
the aspects of constitutional jurisprudence which have bearing on the validity of section 497.
In another case, V Revathi v. Union of India the court held that this section does not permit either the husband
of the offending wife to prosecute her nor it wife of the offending husband for being disloyal to her. Therefore,
since neither of the spouses can bring a charge against their disloyal nor offending spouses. Hence, this section
does not discriminate on the basis of sex.
CHAPTER - 4
Facts
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Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal Code. The core
reason behind this petition was to shield Indian men from being punished for extra marital relationships by
vengeful women or their husbands. Petitioner's close friend in Kerala committed suicide after a women co-
worker made malicious rape charge on him. Further section 497 is an egregious occurrence of sexuality
unfairness, authoritative imperialism and male patriotism. A writ petition was filed under Article 32 by Joseph
Shine challenging the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative
of Article 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the provision for
adultery to be arbitrary and discriminatory on the basis of gender. The petitioner claimed that such a law
demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the petition.
CHAPTER - 5
Contentions
Petitioner
The counsel for the petitioner contended that the provision criminalizes adultery on classification based on sex
alone which has no rational nexus to object to being achieved. The consent of the wife is immaterial. Hence
violative of Article 14 of the constitution.
The petitioner contended that provision is based on the notion that a woman is property of the husband. The
provision says if the husband gives consent or connive then adultery is not committed.
The provision for adultery is discriminative on the basis of gender as it provides only men with the right to
prosecute against adultery which is violative of Article 15.
The petitioner contended that the provision is unconstitutional as it undermines the dignity of a woman by not
respecting her sexual autonomy and self-determination. It is violative of Article 21.
Section 497 of IPC read with Section 198 of CrPC must be struck down.
Respondents
The respondents contended that adultery is an offence which breaks the family relations and deterrence should
be there to protect the institution of marriage.
The respondents claim that adultery affects the spouse, children and society as a whole. It is an offence
committed by an outsider with full knowledge to destroy the sanctity of marriage.
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The discrimination by the provision is saved by Article 15(3), which provides state right to make special laws
for women and children.
They request the court to delete the portion found unconstitutional but retain the provision.
CHAPTER - 6
Issues raised
I. Whether the provision for adultery is arbitrary and discriminatory under Article 14?
II. Whether the provision for adultery encourages the stereotype of women being the property of men and
discriminates on gender basis under Article15?
III. Whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-
determination?
IV. Whether criminalizing adultery is intrusion by law in the private realm of an individual?
V. Whether section 497 of Indian Penal Code is unconstitutional?
The petitioner wanted certain problems with section 497 to be addressed:
Adultery law provides that man to be punished in case of adultery but no action is suggested for the women.
Hence, it made the gender neutral.
As per section 497, there is no legal provision that a woman can file a complaint of adultery against her
husband.
According to section 497, if the husband gives his consent for such an act then such act is no more considered
as a crime. Therefore, women are treated as an object under adultery law.
CHAPTER - 7
Previous Judgments
In this case, Yusuf Abdul Aziz vs. State of Bombay (1954) SCR 930 , the constitutionality of Section 497 was
challenged on the grounds that it violates Article 14 and Article 15, by saying a wife cannot be a culprit even as
an abettor. The 3 judge bench upheld the validity of the said provision as it is a special provision created for
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women and is saved by Article 15(3). And Article 14 is a general provision and has to be read with other
Articles and sex is just classification, so by combining both it is valid.
In this case, Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137 , a petition was filed under
Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said
provision does not provide the right to a woman to prosecute the woman with whom her husband has committed
adultery and hence is discriminatory. The 3 judge bench in this case also upheld the validity by stating that
extending the ambit of offence should be done by the legislature and not by courts. The offence of breaking a
family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men can
commit such an offence.
In this case, V. Revathi vs. Union of India (1988) 2 SCC 72 , the court upheld the constitutional validity of
Section 497 read with Section 198 by stating that this provision disables both wife and husband from punishing
each other for adultery hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of
marriage. And thus it is reverse discrimination in ‘favour’ of her rather than ‘against’ her.
In, W. Kalyani vs. State through Inspector of Police and another (2012) 1 SC 358 , The constitutionality of
Section 497 did not arise in this case but it says that mere fact that appellant is a woman makes her completely
immune to the charge of adultery and she cannot be proceeded against for that offence.
Recommendations
In the 42nd Law Commission report, it was recommended to include adulterous women liable for prosecution
and reduce punishment from 5 years to 2 years. It was not given effect.
In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision
for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended
amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’.
The same is pending for consideration.
CHAPTER - 8
Court observations
Issue 1
The test of manifest arbitrariness should be applied to invalidate the legislation or any sub-legislation. Any law found
arbitrary will be struck down.
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Judgments cited:
E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3
Shayara Bano v. Union of India (2017) 9 SCC 1
The classification is found to be arbitrary in the sense that it treats only the husband as an aggrieved person given
the right to prosecute for the offence and no such right is provided to the wife. The provision is not based on
equality.
The offence is based on the notion of women being a property of husband and adultery is considered to be a theft
of his property because it says consent or connivance by the husband would not make it an offence.
The provision does not treat the wife as an offender and punishes only the third party.
Such classification is arbitrary and discriminatory and has no relevance in present times where women have their
own identity and stand equal to men in every aspect of life. This provision clearly violates Article 14.
Issue 2
This provision discriminates between a married man and a married woman to her detriment on the ground of
sex.
This provision is based on the stereotype that a man has control over his wife’s sexuality and she is his property.
It perpetuates the notion that women are passive and incapable of exercising their sexual freedom.
Section 497 protects women from being punished as abettors. It is enunciated that this provision is beneficial for
women, which is saved by Article 15(3). Article 15(3) was inserted to protect the women from patriarchy and
pull them out of suppression. This article was aimed to bring them equal to men. But Section 497 is not
protective discrimination but grounded in patriarchy and paternalism.
Judgments cited
Government of Andhra Pradesh v. P B Vijayakumar (1995) 4 SCC 520
Independent Thought vs. Union of India (2017) 10 SCC 800
Thus the said provision violates Article 15(1) of the constitution because it is discriminatory on the basis
of gender and perpetuating the stereotype of controlling a wife’s sexual autonomy.
Issue 3
The dignity of an individual and sexual privacy is protected by the constitution under Article 21. A woman has
an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital
matters of life.
Judgments cited
S. Puttaswamy and Anr. Vs Union of India and others (2017) 10 SCC 1
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Common Cause v. Union of India and ors. (2018) 5 SCC 1
The provision allows adultery on the husband’s consent or connivance, which gives a man control over
her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality.
When the penal code was drafted the societal thinking regarding women was backward and she was
treated as a chattel but after 158 years the status of women is equal to that of men. Her dignity is of
utmost importance which cannot be undermined by a provision which perpetuates such gender
stereotypes.
Treating women as victims also demeans her individuality and questions her identity without her
husband.
The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the fundamental right
to dignity and equality provided under Article 21.
Issue 4
A crime is defined as an offence which affects society as a whole. Adultery, on the other hand, is an
offence which tantamounts to entering into the private realm.
Adultery may be committed by two consenting adults making it a victimless crime.
This provision aims to protect the sanctity of marriage but we have to admit that because of a pre-
existing disruption of marital tie adultery is committed.
The other offences related to matrimonial realms such as Section 306, 498-A, 304-B, 494 or any
violation of Protection of women from Domestic Violence Act, 2005 or violation of Section 125 CrPC
are related to the extinction of the life of a married woman and punishes her husband and relatives.
In adultery, a third party is punished for a criminal offence with a maximum 5 years imprisonment. This
is not required in the opinion of the court.
This provision makes a husband an aggrieved person and a woman a victim. Even if the law changes
and provides equal rights to women against adultery, it is totally a private matter.
Adultery is better left as a ground for divorce and not a crime.
Section 497 of IPC is struck down and adultery can be grounds for any civil wrong including dissolution
of marriage.
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CHAPTER - 9
Critical analysis
Infidelity is more common in larger cities where people are moving towards westernization. This decision has
been widely criticized on the ground that it paved a way for people to commit adultery without any fear. There
has been an increase in adultery since its decriminalization. Males have claimed that now there is no way to
ensure the purity of bloodline. Many claims that recommendations from Law Commissions should have been
accepted by the parliament in order to punish men and women both equally for adultery. The Supreme Court
has also been criticized that they should have let parliament take decisions on adultery according to the
changing social environment.
Conclusion
This is the 21st century where equality and liberalism have taken over the world. There is a need for legislative
reforms to eliminate laws that are discriminatory against women. In India, many laws have become redundant
with the passage of time. Adultery being one of them, it was necessary to get rid of it. Adultery not only
discriminated between men and women but also demeans the dignity of a woman. This was inserted as an
offence when society was filled with patriarchy and paternalism. In that society, a stereotype was created that
women belong at home and they didn’t have equal rights and opportunity as men did. And married women
didn’t have an individual identity but were treated as the property of their husband which is reflected in the
provision for adultery.
But the times have changed; women are no longer behind the shadow of men. Adultery as a criminal offence
has no significance because it is a private matter in which courts should not interfere. There is sexual autonomy
to every individual and hindering the same would violate the constitutional principles. This judgement
decriminalizes the offence of adultery and makes it a ground for civil wrongs only. Criminalizing both men and
women as suggested by Law Commission reports would not have served the purpose as adultery is an act which
is an extremely private affair related to the matrimonial realm. The Legislature should have taken this step long
ago but nevertheless our judiciary has been very efficient in filling the gaps and removing redundant laws with
changing societal notions.
Bibliography
Website:
https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/
https://www.legalserviceindia.com/legal/article-3127-joseph-shine-v-s-union-of-india.html
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