- Research/Scholar Paper name – “An analysis of the Indian Supreme Court’s repealing of the law of adultery in light of the Hart-Devlin Debate: An “unadulterated” examination of the Supreme Court’s “shining” moment”
- Author: Raghav Sengupta
- Institution: Jindal Global Law School
- Affiliation: Centre for Study of Contemporary Legal Issues
- Date of Publication: 09/01/2021
The act of extramarital sexual intercourse, which occurs between a married person and someone other than that person’s lawfully wedded spouse, found itself criminalized in the form Section 497 of the Indian Penal Code. Traditionally, the concept of ‘marital infidelity’ has been viewed by society as morally detestable and that the intrusion of the state is legitimate, in such instances, to protect the sanctity of the institution of marriage. In the landmark judgment of Joseph Shine v. Union of India, the Supreme Court of India held this provision to be unconstitutional and struck it down from the respective statute. Through this paper, I shall provide a detailed background of how the criminal law understands and penalized adultery. In addition, I shall explore whether criminal law can be used to encroach upon the private rights of adulterous individuals and enforce certain norms to control such acts that it deems to be immoral. In order to explore these concepts, I shall employ the various thoughts and ideas propounded in the Hart-Devlin debate to analyze the case of Joseph Shine and the importance of public morality in the law.. Finally, I shall critique some important observations made by the Supreme Court, in Joseph Shine, to understand the reasons for the criminalization of adultery, and the Court’s ultimate verdict of decriminalizing it by deeming it to be a private matrimonial dispute.