Adultery, Family Stability and Constitutional Morality In Contemporary India: A Critical Socio-Legal Analysis
Main Article Content
Abstract
This paper critically examines the decriminalisation of adultery in India following the landmark Supreme Court judgment in Joseph Shine v. Union of India (2018), wherein Section 497 of the Indian Penal Code, 1860 was struck down as unconstitutional. Engaging with the intersections of constitutional morality, gender equality, marital autonomy, and family stability, the analysis situates the judgment within the broader socio-legal landscape of contemporary India. The paper surveys the historical foundations of adultery law, its patriarchal underpinnings, and its incompatibility with Articles 14, 15, and 21 of the Constitution. It further explores post-decriminalisation consequences for family law, including civil remedies under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954, and interrogates whether constitutional morality and popular morality can be reconciled. The paper concludes with a call for a gender-neutral, rights-based framework that protects marital dignity without criminalising personal choice.
Article Details
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
References
A. Table of Cases
Joseph Shine v. Union of India, (2018) 2 SCC 189 (Supreme Court of India).
Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.
V. Revathi v. Union of India, AIR 1988 SC 835.
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (Nine-Judge Bench).
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Shayara Bano v. Union of India, (2017) 9 SCC 1.
Supriyo @ Supriya Chakraborty v. Union of India, (2023) SCC OnLine SC 1348.
Lawrence v. Texas, 539 U.S. 558 (2003) (United States Supreme Court).
B. Statutes and Legislation
Indian Penal Code, 1860, § 497 (repealed by the Bharatiya Nyaya Sanhita, 2023).
Constitution of India, 1950, Arts. 14, 15, 21.
Hindu Marriage Act, 1955, §§ 13, 13B.
Special Marriage Act, 1954, § 27.
Protection of Women from Domestic Violence Act, 2005.
Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023).
C. Books, Articles and Reports
Baxi, Upendra, The Future of Human Rights (3rd ed., Oxford University Press, 2008).
Parashar, Archana, Women and Family Law Reform in India (Sage Publications, 1992).
Menski, Werner, Hindu Law: Beyond Tradition and Modernity (Oxford University Press, 2003).
Chandrachud, Y.V. (as CJI), "Constitutional Morality and the Role of the Courts," 49 Journal of the Indian Law Institute 1 (2007).
Law Commission of India, 227th Report: Preventing Bigamy via Conversion to Islam — A Proposal for Giving Statutory Effect to Supreme Court Rulings (2009).
Basu, Srimati, The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015).
Agnes, Flavia, Law and Gender Inequality: The Politics of Women's Rights in India (Oxford University Press, 1999).
Kapur, Ratna and Cossman, Brenda, Subversive Sites: Feminist Engagements with Law in India (Sage Publications, 1996