JOSEPH SHINE v. UNION OF INDIA

Judgment

:): Right to sexual autonomy and privacy has been granted the stature of a constitutional right – Section 497, in its 765 A B C D E F G H 766 SUPREME COURT REPORTS [2018] 11 S.C.R. effort to protect the sanctity of marriage, has adopted a notion of marriage which does not regard the man and the woman as equal partners – Section 497 thus subordinates the woman to a position of inferiority – Constitutional morality requires the court to enforce constitutional guarantees of equality before law, non-discrimination on account of sex and dignity, all of which are affected by operation of s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based on gender stereotypes about the role of women and violates the non- discrimination principle embodied in Art. 15 – It is also a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC is unconstitutional – (Per Indu Malhotra, J.): Section 497 IPC fails to consider both men and women as equally autonomous individuals in society – The anomalies and inconsistencies in s. 497 IPC would render the provision liable to be struck down on the ground of being arbitrary and discriminatory – Any legislation which treats similarly situated persons unequally or discriminates between persons on the basis of sex alone is liable to be struck down as being violative of Articles 14 and 15 – Right to privacy u/Art. 21 would include the right of two adults to enter into a sexual relationship outside marriage – An invasion of privacy u/Art. 21, by the State must meet a three-fold requirement i.e. (i) legality, (ii) need and (iii) proportionality – Section 497 IPC as it stands today fails to meet the three fold requirement and therefore violative of Art. 21 – Section 198(2) of Cr.P.C. which contains the procedure for prosecution under Chapter XX of IPC shall be unconstitutional only to the extent that it is applicable to the offence of adultery u/s. 497 IPC – Constitution of India – Arts. 14, 15 and 21. Constitution of India: Art. 15(3) – Protective discrimination – Applicability of – To s.497 IPC – Held ( Per: R.F. Nariman, J.): Art. 15(3) is applicable only to the law made by the State after coming into force of the Constitution and not to “existing law” – s. 497 is, in constitutional language, an “existing law” which continues, by virtue of Art. 372(1), to apply, and could not be said to be law made by the “State” – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protect a statutory provision that entrenches patriarchal notions in garb of protecting women – ‘Protection’ afforded to women u/s. 497 A B C D E F G H JOSEPH SHINE v. UNION OF INDIA 767 highlights the lack of sexual agency that the Section imputes to a woman – (Per: Indu Malhotra, J.): – The purpose of Art. 15(3) is to further socio-economic equality of women – Section 497 cannot be considered to be beneficial legislation covered by Art. 15(3) – Penal Code, 1860 – s. 497. Art. 21 – Right to privacy and personal liberty – Held: (Per Indu Malhotra, J.): An invasion of privacy u/Art. 21, by the State must be justified on the basis of a law that is reasonable and valid – Such invasion must meet three-fold requirement i.e. (i) legality, (ii) need and (iii) proportionality – Section 497 of IPC fails to meet the three-fold requirement – Therefore, right to privacy u/Art.21 would include the right of two adults to enter into a sexual relationship outside marriage – Penal Code, 1860 – s. 497. Art. 21 – Right to live with dignity – Scope of – Held: (Per: Indu Malhotra, J.): – Right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary – Penal Code, 1860 – s. 497. Criminal Law: Criminal sanction – When justified – Held:(Per: Indu Malhotra, J.) – Criminal sanction may be justified where there is a public element in the wrong – State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices – Adultery is only a moral wrong qua the spouse and the family – In order to determine what conduct requires State interference through criminal sanction, the State must consider whether civil remedy will serve the purpose – Where civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State – Penal Code, 1860 – s. 497 – Remedy. Presumption: Presumption of constitutionality – Held: (Per Indu Malhotra, J.) – There would be no presumption of constitutionality in a pre-constitutional law – Constitutionalism. Legislation: Purpose of legislation – Held (Per Dipak Misra, CJI) – A legislation should serve and promote good life – It should be fit A B C D E F G H 768 SUPREME COURT REPORTS [2018] 11 S.C.R. A and equitable so that it can have a right to command obedience. Law: Constitutionality of procedural law – When substantive provision is held unconstitutional – Held (Per Dipak Misra, CJI) When the substantive provision goes, the procedural provision has to to pave the same path. Doctrine/Principle: Principle of Conventure – Explained. Maxim: ‘Cessante ratione legis, cessat ipsa lex’ – Applicability of. Words & Phrases: ‘Adultery’ – Meaning of. ‘Crime’ – Meaning of. Allowing the writ petition, the Court HELD: Per: Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)

1.1 The progression in law and the perceptual shift compels the present to have a penetrating look to the past. Though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. [Para 2][804-C-D]

1.2 A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid B C D E F G H JOSEPH SHINE v. UNION OF INDIA 769 bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts. [Para 3][804-G-H; 805-A-B]

1.3 Despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable. [Para 3][805-B-C] On the subjection of women by John Stuart Mill, 1869 Chapter 1 - referred to.

2.1 The husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. The offence is non-cognizable. [Para 11][811-D-E]

2.2 On a reading of s. 497 IPC it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted. [Para 22][818-F-G]

2.3 Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The dictionary meaning of “adultery” is that a married person commits adultery if he has sex with a woman with whom he has not entered into wedlock. ‘Adultery’ is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC. [Para 23][818-G-H; 819-A-B] A B C D E F G H 770 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H

2.4 Section 198 CrPC deals with a “person aggrieved”. Sub- section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC. and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. It does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. Thus, on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary. [Para 23][819-B-F] Shayara Bano v. Union of India and others (2017) 9 SCC 1: [ 2017] 7 SCR 797 – followed. State of Mysore v. S.R. Jayaram (1968) 1 SCR 349; Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1: [1976] SCR 347; E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3: [1974] 2 SCR 348; Maneka Gandhi v. Union of India (1978) 1 SCC 248: [1978] 2 SCR 621; A.L. Kalra v. Project and Equipment Corporation of India Ltd. (1984) 3 SCC 316 : [1984] 3 SCR 646; Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 :[1981] 2 SCR 79; K.R. Lakshmanan v. State of T. N. (1996) 2 SCC 7 226 : [1996] 1 SCR 395; Mithu v. State of Punjab (1983) 2 SCC 277:[1983] 2 SCR 690; Sunil Batra v. Delhi Administration (1978) 4 SCC 494 : [1979] 1 SCR 392;Charu Khurana and others v. Union of India and others (2015) 1 SCC 192: [2014] 12 SCR 259 – referred to. Black’s Law Dictionary – referred to. JOSEPH SHINE v. UNION OF INDIA 771

#3. There cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance. The Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the subordination of women. husband Therefore, the same offends Article 21 of the Constitution. [Paras 36, 41][826-D-E; 831-B-C] tantamounts Arun Kumar Agrawal and another v. National Insurance Company Limited and others (2010) 9 SCC 218: [2010] 9 SCR 303; State of Madhya Pradesh v. Madanlal (2015) 7 SCC 681: [2015] 7 SCR 998; Pawan Kumar v. State of Himachal Pradesh (2017) 7 SCC 780 : [2017] 3 SCR 458; Voluntary Health Association of Punjab v. Union of India (2013) 4 SCC 1: [2013] 5 SCR 111; Shakti Vahini v. Union of India and others (2018) 7 SCC 192; K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1; National Legal Services Authority v. Union of India and Others (2014) 5 SCC 438; Common Cause (A Registered Society) v. Union of India and another (2018) 5 SCC 1:[2008] 8 SCR 1; Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 – referred to. R v. R (1991) 4 ALL ER 481 – referred to. Lord Denning The Due Process of Law (London, Butterworths, 1980) – referred to.

4.1"a good legislation should be fit and equitable so that it can have a right to command obedience”. These are two compartments, namely, ‘equity’ and ‘utility’. Thus, laws and legislations are necessary to serve and promote a good life. [Para 42][831-H; 832-A] A B C D E F G H 772 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H

4.2 Treating adultery an offence, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. [Para 49][835-C-D]

4.3 The Parliament has the law making power. The Court makes it very clear that it is not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. 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. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. [Para 49][835-E-F]

4.4 In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. [Para 53][837-C-D]

4.5 When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a JOSEPH SHINE v. UNION OF INDIA 773 third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said ‘act’ should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness. [Para 54][837-E-H; 838-A-B]

4.6 Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law. [Para 55][838-C-D] Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly (1986) 3 SCC 156: [1986] 2 SCR 278; Common Cause (A Registered Society) v. Union of India and another (2018) 5 SCC 1:[2008] 8 SCR 1 – relied on. Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48 : [2013] 10 SCR 306; Ghusabhai Raisangbhai Chorasiya v. State of Gujarat (2015) 11 SCC 753:[2015] 2 SCR 594 – referred to. “Principles of Criminal Liability” Halsbury’s Laws of England, 4th Edn., Vol. 11 p.11,; Kenny’s Outlines of Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner – referred to.

#5. As the court has held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with A B C D E F G H 774 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path. [Para 56][838-F] Sowmithri Vishnu v. Union of India and another (1985) Supp SCC 137:[1985] Suppl. SCR 741; V. Revathi v. Union of India and others (1988) 2 SCC 72 : [1988] 3 SCR 73 – overruled. Yusuf Abdul Aziz v. State of Bombay 1954 SCR 930; W. Kalyani v. State through Inspector of Police and another (2012) 1 SCC 358; Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (2005) 2 SCC 673: [2004] 6 Suppl. SCR 1054; W. Kalyani v. State Thro’ Inspector of Police and another (2012) 1 SCC 358 – referred to. Per: R. F. Nariman, J. (Concurring)

#1. The crime of adultery punishes only a third-party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is therefore punished as ‘adultery’ is not ‘adultery’ per se but the proprietary interest of a married man in his wife. [Para 1][839-F-G]

#2. Article 15(3) of the Constitution is not applicable in the present case as Art. 15(3) states that, “nothing in this Article shall prevent the State from making a special provision for women”, would refer to the “State” as either Parliament or the State Legislatures or the Executive Government of the Centre or the States, set up under the Constitution after it has come into force. Section 497 is, in constitutional parlance, an “existing law” which continues, by virtue of Article 372(1), to apply, and could not therefore, be said to be a law made by the “State”, meaning any of the entities referred to above. Article 15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article 15(3) is in this respect similar to Article 16(4). Article 19(2)-(6) clearly refers to “existing law” as being distinct from “the State making any law”, indicating that the State making any law would be laws made after the Constitution comes into force as opposed to “existing law”, which are pre-constitutional JOSEPH SHINE v. UNION OF INDIA 775 laws enacted before the Constitution came into force, as is clear from the definition of “existing law” contained in Article 366(10). The vital difference in language between Articles 15(3) and 16(4) on the one hand, and Article 19(2)-(6) on the other, must thus be given effect. [Paras 12-15][851-B-C; 852-D; 853-D] Yusuf Abdul Aziz v. State 1954 SCR 930; Dattatraya Motiram More v. State of Bombay AIR 1953 Bom 311 – referred to

3.1 In order to constitute the offence of adultery, the following must be established: Sexual intercourse between a married woman and a man who is not her husband; the man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man; such sexual intercourse must take place with her consent, i.e., it must not amount to rape; sexual intercourse with the married woman must take place without the consent or connivance of her husband. [Para 21][857-D-F]

3.2 What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape. [Para 22][857-G]

3.3 This archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. A legislation can be struck down on the ground of manifest arbitrariness. [Para 23][858-F-G]

3.4 It is clear, therefore, that the ostensible object of Section 497, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not in fact the object of Section 497 at all. A B C D E F G H 776 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence. [Para 24][859-B-E]

3.5 Section 497 of IPC is also discriminatory and therefore, violative of Article 14 and Article 15(1). In treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. [Para 25][859-E-F] Shayara Bano v. Union of India and Ors. (2017) 9 SCC 1 : [2017] 7 SCR 797;Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569 – relied on.

#4. The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also. [Para 26][863-D-E]

#5. Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally infirm. [Para 25][859-F-G]

#6. Ancient notions of the man being the seducer and the woman being the victim permeate the judgment, which is no H JOSEPH SHINE v. UNION OF INDIA 777 longer the case today. The moving times have not left the law behind and so far as engaging the attention of law makers when reform of penal law is undertaken, that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, “cessante ratione legis, cessat ipsa lex,” apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court’s solemn duty not to wait for legislation but to strike down such law. [Para 28][864-B-D]

#7. Therefore, Section 497 of IPC and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid. [Para 28][864-F-G] Sowmithri Vishnu v. Union of India and Anr. (1985) Supp SCC 137:[1985] Suppl. SCR 741; V. Revathi v. Union of India and Ors. (1988) 2 SCC 72 : [1988] 3 SCR 73 – overruled. Charcles A. Tinker v. Frederick L. Colwell 193 US 473 (1904); Pritchard v. Pritchard and Sims [1966] 3 All E.R. 601 – referred to. The Laws of Manu 150 (Translation by G. Buhler, Clarendon Press, UK, 1886); Dharmasutras – The Law Codes of Apastamba, Gautama, Baudhayana, And Vasistha 70-71 (Translation by Patrick Olivelle, Oxford University Press 1999); The Koran (Al–Qur’an): Arabic- English Bilingual Edition with an Introduction by Mohamed A. ‘Arafa 363 (Maulana Muhammad Ali Translation, Teller Books, 2018; Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23 Harvard Women’s Law Journal 1, 21-22 (2000); A Penal Code prepared by the Indian Law Commissioners, and published by command of the Governor General of India in Council 91-93 (G.H. Huttmann, The Bengal Military Orphan Press, 1837 – referred to. A B C D E F G H 778 SUPREME COURT REPORTS [2018] 11 S.C.R. A Per Dr. D Y Chandrachud, J. (Concurring)

#1. In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far. To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women. [Para 3][866-F]

#2. The Court has evolved a jurisprudence of rights- granting primacy to the right to autonomy, dignity and individual choice. The right to sexual autonomy and privacy has been granted the stature of a constitutional right. [Para 4][866-G; 867-A]

#3. The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole. [Para 7][869-C-D]

#4. Section 497, in its effort to protect the sanctity of marriage, has adopted a notion of marriage which does not regard the man and the woman as equal partners. It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21. [Para 11][872-G-H; 873-A-B]

#5. Section 497 of the Penal Code, 1860 makes adultery a punishable offence against “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.” It goes on to state that, “in such case the wife shall not be punishable as an abettor.” The offence applies only to the man committing adultery. A woman committing adultery is not considered to be an “abettor” to the offence. The power to B C D E F G H JOSEPH SHINE v. UNION OF INDIA 779 prosecute for adultery rests only with the husband of the woman. [Para 14][875-B-C] A

#6. The history of adultery throws light upon disparate attitudes toward male and female infidelity, and reveals the double standard in law and morality that has been applied to men and women. [Para 14][875-D]

#7. In its 156th Report, the Law Commission made a proposal which it believed reflected the “‘transformation’ which the society has undergone,” by suggesting removing the exemption from liability for women under Section 497. In 2003, the Justice Malimath Committee recommended that Section 497 be made gender-neutral, by substituting the words of the provision with “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.” The Committee supported earlier proposals to not repeal the offence, but to equate liability for the sexes. Neither the recommendations of the Law Commission nor those of the Malimath Committee have been accepted by the Legislature. Though women are exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. The power to prosecute lies only with the husband (and not to the wife in cases where her husband commits adultery), and whether the crime itself has been committed depends on whether the husband provides “consent for the allegedly adulterous act.” [Para 23][882-B-C; F]

#8. Women, therefore, occupy a liminal space in the law: they cannot be prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of their status as their husband’s property. Section 497 is also premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. Effectively, Indian jurisprudence has interpreted the constitutional guarantee of sex equality as a justification for differential treatment: to treat men and women differently is, ultimately, to act in women’s interests. The status of Section 497 as a “special provision” operating for the benefit of women, therefore, constitutes a paradigmatic example of benevolent patriarchy. [Para 24][882-F-G; 883-A-B] B C D E F G H 780 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H

#9. A woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires the Court to enforce the constitutional guarantees of equality before law, non- discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497. [Para 25][883-C-D]

#10. Numerous countries around the world have taken measures to decriminalize the offence of adultery due to the gender discriminatory nature of adultery laws as well as on the ground that they violate the right to privacy. However, progressive action has primarily been taken on the ground that provisions penalising adultery are discriminatory against women either patently on the face of the law or in their implementation. Reform towards achieving a more egalitarian society in practice has also been driven by active measures taken by the United Nations and other international human rights organizations, it has been emphasized that even seemingly gender-neutral provisions criminalising adultery cast an unequal burden on women. The abolishing of adultery has been brought about in equal measure by legislatures and courts. [Para 26][883-E-F; 884-A-C]

#11. The act which constitutes the offence under Section 497 of the Penal Code is a man engaging in sexual intercourse with a woman who is the “wife of another man”. For the offence to arise, the man who engages in sexual intercourse must either know or have reason to believe that the woman is married. Though a man has engaged in sexual intercourse with a woman who is married, the offence of adultery does not come into being where he did so with the consent or connivance of her husband. These ingredients of Section 497 lay bare several features which bear on the challenge to its validity under Article 14. The fact that the sexual relationship between a man and a woman is consensual is of no JOSEPH SHINE v. UNION OF INDIA 781 significance to the offence, if the ingredients of the offence are established. What the legislature has constituted as a criminal offence is the act of sexual intercourse between a man and a woman who is “the wife of another man”. [Para 30][893-D-F]

#12. No offence exists where a man who has a subsisting marital relationship engages in sexual intercourse with a single woman. Though adultery is considered to be an offence relating to marriage, the legislature did not penalise sexual intercourse between a married man and a single woman. Even though the man in such a case has a spouse, this is considered to be of no legal relevance to defining the scope of the offence. That is because the provision proceeds on the notion that the woman is but a chattel; the property of her husband. The fact that he is engaging in a sexual relationship outside marriage is of no consequence to the law. The woman with whom he is in marriage has no voice of her own, no agency to complain. If the woman who is involved in the sexual act is not married, the law treats it with unconcern. The premise of the law is that if a woman is not the property of a married man, her act would not be deemed to be ‘adulterous’, by definition. [Para 30][893-G; 894-A-B]

#13. Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision. [Para 32][894-D-G] A B C D E F G H 782 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H

#14. The hypothesis which forms the basis of the law on adultery is the subsistence of a patriarchal order. Section 497 is based on a notion of morality which fails to accord with the values on which the Constitution is founded. The freedoms which the Constitution guarantees inhere in men and women alike. In enacting Section 497, the legislature made an ostensible effort to protect the institution of marriage. Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfilment. Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination. In recognising, accepting and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded – liberty, dignity and equality – cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness. [Para 35][897-A-D]

#15. While engrafting the provision into Chapter XX of the Penal Code – “of offences relating to marriage” – the legislature has based the offence on an implicit assumption about marriage. The notion which the law propounds and to which it imposes the sanctions of penal law is that the marital tie subordinates the role and position of the woman. In that view of marriage, the woman is bereft of the ability to decide, to make choices and give free expression to her personality. Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties. [Para 36][897-E-F; 898-A]

#16. Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having JOSEPH SHINE v. UNION OF INDIA 783 sexual intercourse with another. Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. The provision is proffered by the legislature as an effort to protect the institution of marriage. But it proceeds on a notion of marriage which is one sided and which denies agency to the woman in a marital tie. The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage. Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14. [Para 36][898-A-D]

#17. The procedural law which has been enacted in Section 198 of the Code of Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497. Cognizance of an offence under Chapter XX of the Penal Code can be taken by a Court only upon a complaint of a person aggrieved. In the case of an offence punishable under Section 497, only the husband of the woman is deemed to be aggrieved by the offence. In any event, once the provisions of Section 497 IPC are held to offend the fundamental rights, the procedure engrafted in Section 198 Cr.P.C. will cease to have any practical relevance. [Para 37][898-E]

#18. Section 497 IPC amounts to a denial of substantive equality. The decisions in *Sowmithri and **Revathi Cases espoused a formal notion of equality, which is contrary to the constitutional vision of a just social order. Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. [Para 38][898-F-H] A B C D E F G H 784 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H

#19. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. The disadvantage must be addressed not by treating a woman as ‘weak’ but by construing her entitlement to an equal citizenship. The former legitimizes patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation. Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage. [Para 38][899-A-C]

#20. From a joint reading of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, the following propositions emerge: Sexual relations by a married woman with another man outside her marriage without the consent of her husband is criminalized; In an ‘adulterous relationship’, the man is punished for adultery, while the woman is not (even as an abettor); Sexual relations by a married man with an unmarried woman are not criminalized; Section 497 accords primacy to the consent of the husband to determine whether criminality is attached to the man who has consensual sexual relations with the spouse of the former. Consent or willingness of the woman is irrelevant to the offence; a man who has sexual relations with the spouse of another man is relieved of the offence only if her spouse has consented or, even connived; and Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole right to lodge a complaint and precludes a woman from initiating criminal proceedings. [Para 40][900-B-F]

#21. The operation of Section 497, by definition, is confined to the sexual relations of a woman outside her marriage. A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted under the Section. However, a married man may engage in sexual relations outside marriage with a single woman without any repercussion in criminal law. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she JOSEPH SHINE v. UNION OF INDIA 785 engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency. The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship, is of no consequence to the possible prosecution. [Para 41][900-G-H; 901-A]

#22. The effect of Section 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Though Section 497 does not punish a woman engaging in adultery as an abettor, a married man and a married woman are placed on different pedestals in respect to their actions. The effect of Section 497 IPC, despite granting immunity from prosecution to the married woman, is to attach a notion of wrongdoing to the exercise of her sexual agency. Despite exempting her from prosecution, the exercise of her sexual agency is contingent on the consent or connivance of the husband. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, Section 497 IPC discriminates between a married man and a married woman to her detriment on the ground of sex. This kind of discrimination is prohibited by the non-discrimination guarantee in Article 15 of the Constitution. Section 497 IPC also places a woman within marriage and the man with whom she shares a sexual relationship outside marriage on a different footing. [Para 41][902-D-E]

#23. Underlying Section 497 IPC is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the ‘aggrieved’ party is given the right to initiate prosecution. The proceedings once initiated, would be geared against the person who committed an act of ‘theft’ or ‘trespass’ upon his spouse. Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497 IPC. [Para 44][902-D-E] A B C D E F G

#24. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual H 786 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H relations outside marriage without the permission of her husband is offensive to the values of liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values. [Para 44][902-F-G; 903-A]

#25. A provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates. In its operation, law “permeates and is inseparable from everyday living and knowing, and it plays an important role in shaping (legal) consciousness.” A contextual reading of the law shows that it influences social practices, and makes “asymmetries of power seem, if not invisible, natural and benign”. Section 497 IPC has a significant social impact on the sexual agency of women. It builds on existing gender stereotypes and bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage. In restricting the sexual agency of women, Section 497 gives legal recognition to socially discriminatory and gender-based norms. Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminally condemned. [Para 45][903-B-D]

#26. Article 15(3) encapsulates the notion of ‘protective discrimination’. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of ‘protection’. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3). In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that JOSEPH SHINE v. UNION OF INDIA 787 she was ‘seduced’ into a sexual relationship. The ‘protection’ afforded to women under Section 497 highlights the lack of sexual agency that the section imputes to a woman. Article 15(3) when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women. [Para 48][905-A-G; 906-A-C]

#27. The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution. [Para 50][907-D-E]

#28. Constitutional protections and freedoms permeate every aspect of a citizen’s life - the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity is an affront to th by curtailing sexual autonomy fundamental right to dignity and equality. In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, ‘public’. It becomes imperative for the Court to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink-women are equal citizens of this nation, entitled to the protections of the results Constitution. in the denial of these Constitutional guarantees to women, cannot pass test of constitutionality. [Paras 52 and 66][908-D-F; 918-B] legislation Any A B C D E F G H 788 SUPREME COURT REPORTS [2018] 11 S.C.R.

#29. Section 497 IPC is not simply about protecting the sanctity of the marital relationship. It is all about protecting a husband’s interest in his “exclusive access to his wife’s sexuality”. [Para 52][909-A-B]

#30. Marriage as a social institution has undergone changes. Propelled by access to education and by economic and social progress, women have found greater freedom to assert their choices and preferences. The law must also reflect their status as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. [Para 54][910-E-F]

#31. Section 497 seeks the preservation of a construct of marriage in which female fidelity is enforced by the letter of the law and by the coercive authority of the State. Such a conception goes against the spirit of the rights-based jurisprudence of this Court, which seeks to protect the dignity of an individual and her “intimate personal choices”. It cannot be held that these rights cease to exist once the woman enters into a marriage. [Para 55][911-D-E]

#32. In so far as two individuals engage in acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with. [Para 58][913-F-G]

#33. In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship. [Para 59][914-C-D]

#34. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to the other the same element of companionship and respect for A B C D E F G H JOSEPH SHINE v. UNION OF INDIA 789 choices. Respect for sexual autonomy, it must be emphasized is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. Control over sexuality attaches to the human element in each individual. Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another. [Para 59][914-E-F]

#35. There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be compelled for reasons personal to them to continue with the veneer of a marriage which has ended for all intents and purposes. The interminably long delay of the law in the resolution of matrimonial conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law. Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing. [Para 60][914-G-H; 915-A-C]

#36. The legitimate aims of the State may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. In criminalizing certain types of wrongdoing against women, the State intervenes to protect the fundamental rights of every woman to live with dignity. Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. The A B C D E F G H 790 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H sexuality of a woman is part of her core. Neither the state nor the institution of marriage can disparage it. [Para 61][915-E-F; G-H; 916-A-B]

#37. To construe Section 497 in a vacuum (as did *Sowmithri Vishnu case ) or in formalistic terms (as did *Revathi case) is a refusal to recognise and address the subjugation that women have suffered as a consequence of the patriarchal order. Section 497 is a denial of substantive equality in that it re-inforces the notion that women are unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal order which regards them as the sexual property of their spouse. [Para 65][917-E-F]

#38. Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster. [Para 67][918-C-D]

#39. Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution; Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution; Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution. Section 497 is unconstitutional. [Para 67][918-D-F] Shayara Bano v Union of India (2017) 9 SCC 1 : [2017] 7 SCR 797 – followed. E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 : [1974] 2 SCR 348; Navtej Singh Johar v Union of India (2018) 1 SCC 791 ;Anuj Garg v Hotel Association of India (2008) 3 SCC 1 : [2007] 12 SCR 991; (1995) 4 SCC Government of A P v P B Vijayakumar 520 : [1995] 1 Suppl. SCR 462; Independent Thought v Union of India (2017) 10 SCC 800; K S Puttaswamy JOSEPH SHINE v. UNION OF INDIA 791 v Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569 – relied on. *Sowmithri Vishnu v. Union of India 1985 Supp SCC 137:[1985] Suppl. SCR 741;**V Revathi v Union of India (1988) 2 SCC 72 : [1988] 3 SCR 73 – overruled. Yusuf Abdul Aziz v State of Bombay [1954] SCR 930; Union of India v Elphinstone Spinning and Weaving Co. Ltd (2001) 4 SCC 139 : [2001] 1 SCR 221 – referred to. R v Mawgridge (1707) Kel. 119; Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007); DE v RH, [2015] ZACC 18; Thornburgh v. 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(1986); Rosemary Coombe, Is There a Cultural Studies of Law?, A Companion to Cultural Studies, Toby Miller (ed.), Oxford, (2001); Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, Yale Journal of Law & the Humanities, (2001); Charles Jean Marie Letorneau, The Evolution of Marriage (2011); Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994); Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35 – referred to. Per Indu Malhotra, J. (Concurring) A B C D E F G

1.1 Section 497 of Penal Code (IPC) is a pre-constitutional law which was enacted in 1860. There would be no H 794 SUPREME COURT REPORTS [2018] 11 S.C.R. presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution. [Para 10][942-C-D]

1.2 Section 497 of the IPC it is placed under Chapter XX of “Offences Relating to Marriage”. The provision of Section 497 is replete with anomalies and incongruities, such as: Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an ‘abettor’. The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery. The Section only gives the right to prosecute, to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour. Section 497 read with Section 198(2) of Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute ‘adultery’ under Section 497. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery. The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory. [Para 11][942-D-G; 943-A-B] Pritchard v. Pritchard and Sims [1966] 3 All E.R. 601; Oliverson v. West Valley City 875 F. Supp. 1465; Hobbs v. Smith No. 15 CVS 5646 (2017) [Superior Court of North Carolina); Lawrence v. Texas 539 US 558 (2003); DE v. RH (594/2013) [2014] ZASCA 133 (25 September 2014); Green v. Fitzgerald 1914 AD 88 – referred to. Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500–1860; Cambridge, UK: Cambridge University Press; Fernandez, Angela “Tapping Reeve, Nathan Dane, and James Kent: Three Fading A B C D E F G H JOSEPH SHINE v. UNION OF INDIA 795 Federalists on Marital Unity; Married Women and the Law: Coverture in England and the Common Law World, edited by Tim Stretton and Krista J. Kesselring, McGill- Queen’s University Press, 2013, pp. 192–216; Blackstone’s Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778; Bracton: De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115; “Out of his shadow: The long struggle of wives under English Law” The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9 October 2012; Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003); ‘A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q; A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code; Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003); Illinois Criminal Code, 720 ILCS 5/11-35, Adultery; Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal Of Family Law 45, 51-52 (1991); H. Meyers, “Revision of Criminal Code of Japan” Washington Law Review & State Bar Journal, Vol. 25, (1950) at pp. 104- 134; Anayasa Mahkemesi, 1996/15, 1996/34 (Sept. 23, 1996); Adultery Case, 27-1 (A) KCCR 20, February 26, 2015; – referred to.

2.1 The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination. [Para 12.1][943-C-D]

2.2 Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is A B C D E F G H 796 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G permissible if two conditions are satisfied: i.e. The classification is made on the basis of an ‘intelligible differentia’ which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and the said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision. [Para 12.2][943-D-F]

2.3 The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis or a nexus with the object sought to be achieved. With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved. [Para 12.2][943-F-G; 944-A] E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : [2004 ] 5 Suppl. SCR 972 – relied on.

2.4 Section 497 of IPC makes two classifications: The first classification is based on who has the right to prosecute: It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery. Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour. The second classification is based on who can be prosecuted. It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence. The aforesaid classifications were based on the historical context in 1860 when the IPC was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or ‘property’ of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a ‘theft’ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. [Para 12.2][944-A-F]

2.5 A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the H JOSEPH SHINE v. UNION OF INDIA 797 adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary. [Para 12.3][944-G-H]

3.1 A law which could have been justified at the time of its enactment with the passage of time may become out-dated and discriminatory with the evolution of society and changed circumstances. What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic. A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality. [Para 13][945-A-B]