MADHU MEHRA

The unanimous fivejudge verdict of the Supreme Court i n ‘Joseph Shine vs Union of India’ did more than just strike down adultery as a criminal offence. Flawing the law not just for being discriminatory, t he j udgment upheld sexual agency, autonomy and equality of spouses within marriage. In recent times, the court has contextualised privacy as embodying the right to choice of spouse and sexual autonomy for Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) people in the Shafin Jahan and Navtej Johar verdicts respectively. In Joseph Shine, the court affirmed women’s sexual agency and autonomy, within and outside of marriage, on an equal footing as an inviolable aspect of the rights to liberty and privacy.

The offence of adultery conferred upon the husband the power to prosecute the man with whom his wife commits adultery, except if he consented or connived in the act. Despite being patently discriminatory, the law survived several constitutional challenges on the illusory grounds that it protected the wife and the institution of marriage. Women’s sexuality, much less agency and autonomy, found no mention in the earlier constitutional challenges. This is why the verdict in Joseph Shine is constitutionally significant and necessary. Not only does it affirm the right to privacy in the context of sexual agency of women within marriage, but the judgment also clarifies that privacy cannot be a shield when it comes to protecting women from domestic violence.

Laying bare the oppressive scriptural, socio-legal roots of adultery, the judgment clarifies the reasons why the offence never intended to benefit women