Joseph Shine, a non-resident Keralite, filed a public interest litigation under Article 32 of the Constitution challenging the constitutionality of adultery as defined under Section 497 of the Indian Penal Code (IPC) and its corresponding provisions in Section 198(2) of the Criminal Procedure Code (CrPC). Section 497 IPC criminalized adultery by imposing culpability on a man who engages in sexual intercourse with another man's wife, punishable with up to five years of imprisonment. Importantly, women were exempt from prosecution, and the section did not apply when a married man had relations with an unmarried woman. Section 198(2) CrPC stipulated that only the husband could file a complaint for adultery.

Issues

1. Whether Section 497 of the Indian Penal Code, which criminalizes adultery, is unconstitutional and violative of Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life and Personal Liberty) of the Indian Constitution.

2. Whether the provision fosters gender discrimination by treating women as subordinate to men in matters of personal relationships.

Observation

Section 497 is archaic and is constitutionally invalid-

Section 497 disposes women from her autonomy, dignity and privacy. It is considered as the encroachment on her right to life and personal liberty by accepting the notion of marriage which overthrows the true equality. Equality is overthrow by adopting the sanctions of penal code to a gender based approach to the relationship of man and woman. Sexual autonomy falls within the area of personal liberty under article 21 of Constitution of India. It is very much important in a relationship the expectations that one has from the another. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established.

 Adultery is no longer be a criminal offence-

A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

 Husband is not the master of his wife-

The judgment focuses on the fact that women should not be considered as the property of their husband or father anymore. They have equal status in the society and should be given every opportunity to put their stance forward.

 Section 497 is arbitrary-

“In the whole of the judgment it was pointed out that nature section 497 is arbitrary. As husband can give his consent to allow his wife to have an affair with some other person. Hence, this section does not protect the ‘sancity of marriage’. This section preserves the proprietary rights of the husband that he has over his wife. This section does not allow the wife to file a petition against her husband. This section does not contain any provision which deals with a married man having an affair with unmarried women”.