The Supreme Court in the case of Joseph Shine v. Union of India struck down Section 497 of the IPC on the grounds that it violated Articles 14, 15 and 21 of the Constitution. The five Judge Bench unanimously held that the law was archaic, arbitrary and paternalistic, and infringed upon a woman’s autonomy, dignity, and privacy in four concurring judgements. Section 198(2) of the CrPC which allowed only a husband to bring a prosecution under Section 497 of the IPC was also struck down as unconstitutional. This judgement has overruled the previous decisions of Supreme Court in Yusuf Abdul Aziz vs. State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India ((1985) Supp SCC 137) and Vishnu Revathi vs. Union of India ((1988) 2 SCC 72) where the constitutional validity of Section 497 was upheld.

The main issue which was discussed in the case was Whether Section 497 of the IPC read with Section 198(2) of the CrPC violated Articles 14, 15 and 21 of the Constitution of India.

Adultery was a punishable offence in India according to section 497 of IPC which states “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”. But recently in the judgement of Joseph Shine V. Union of India was declared unconstitutional and was struck down.

The issue was as to whether “adultery” must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce and whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law.

Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulterer and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences. Hence, the State has a legitimate public interest in making it a criminal offence. The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

And because of the aforesaid reasoning-

• Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution
• Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497