The Adultery Case: Balancing Individual Dignity and Holy Matrimony


Dheeraj Murthy

Nalsar University of Law, India

The recognition of individual dignity as the bedrock of the right to privacy, guaranteed under Article 21 of the Constitution of India, by the Supreme Court in its seminal ruling on the status of privacy, has given rise to a strong emphasis on the various facets of privacy as a fundamental right. Following the subsequent decision of the apex court in the Euthanasia case which ruled in favour of recognizing decisional autonomy, the ruling in Joseph Shine v. Union of India came as a result of a challenge to the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code.

The provisions criminalized adultery and punished a male for engaging in sexual relations with a married woman “without the consent or connivance” of the husband. The other portion of the provision, explicitly stating that the wife would enjoy immunity and not be punished as an abettor, revealed its gendered character, which in turn informed the challenge on the grounds of equal protection. This post explores the meaning of the right to privacy and the role played by its allied facets of bodily autonomy and decisional privacy in the context of marriage as a consensual union between two individuals.

Beyond Holy Matrimony: What does privacy entail?

The task of making an accurate assessment of the status of privacy in the backdrop of two individuals entering into a marriage requires a certain degree of clarity regarding the character of the right to privacy. The position of marriage as an institution sanctifying the union of a man and woman thereby reaching a conclusion that no privacy exists within this union for the participating individuals appears to be the rationale justifying adultery as being impervious against the claim of a general right to privacy. Notwithstanding the sweeping gendered notions of woman occupying the role of a chattel, the claim of a general right to privacy inheres in every individual whatever their marital status.

This is principally due to the conception of privacy as being the manifestation of a core that vests with every individual. The core allows for the right to an inviolate personality which cannot be subjected to any interference. The right to privacy as guaranteed by countries across the world is the recognition of the inviolate personality of an individual.  Due to the inviolate personality which every person enjoys, individual dignity and privacy become the legal standard against which interference with a person can be identified and tackled. These standards or rights can be viewed as being analogous to ownership of an individual over their person or personal-self, the argument being “that our bodies are ours and so we have the same rights with respect to them that we have with respect to our other possessions.”

The understanding of privacy therefore necessarily entails the autonomy to exercise one’s inviolate personality to act or make decisions with respect to sexual relations as well. The root of the dispute in the Joseph Shine case involves engagement with these facets of privacy.

The Verdict: Balancing a meaningful union and the right to sexual privacy

The court began by tracing the previous judicial decisions on privacy. In particular, the court directed its attention towards the decisions in Sowmithri Vishnu v. Union of India and Revathi v. Union of India and stated that the decisions adopted a skewed understanding of marriage. The court stated that marriage as understood in Section 497 viewed women serving in a position of inferiority in a marriage, violating Article 21 of the Constitution due to the infringement of the dignity of women.

The interesting aspect of the reasoning adopted by the court is the multi-faceted approach in conceptualizing privacy in the specific context of adultery. First, the understanding given to adultery as being covered by the realm of decisional privacy in terms of it being a conscious marital choice. Second, the character of adultery being a form of sexual expression thereby being protected under the freedom of association. Third, the recognition of adultery as an act covered by sexual privacy meaning consensual sexual conduct is a natural consequence flowing from the “moral fact that a person belongs to himself and not to others nor to society as a whole.”

Significantly, the reasoning employed by the decision places the dignity of a woman at the center of its analysis in line with its decision in Justice KS Puttuswamy v. Union of India. Making use of the multi-faceted approach mentioned above, the argument, that Section 497 essentially operated as a tool for depriving women of the ability to make choices within their sphere of autonomy, was accepted. The court stated:

“Patriarchy and paternalism are the underpinnings of Section 497. It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order which has recognised dignity as intrinsic to a person, autonomy being an essential component of this right.”

Thus, the decision striking down Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code was grounded in a dignity centric approach. Due to the status of a woman being divested of the autonomy to exercise her agency to conduct herself and more importantly her right to inviolate personality, the laws on adultery were struck down on the touchstone of dignity being the foundation of privacy in Article 21 of the Constitution.

Dheeraj Murthy is a student at Nalsar University of Law in India.

Suggested Citation: Dheeraj Murthy, ‘The Adultery Case: Balancing Individual Dignity and Holy Matrimony’ IACL-AIDC Blog (4 February 2019)