The Joseph Shine Judgment (1980) which decriminalised adultery, as it treated wives to be the “chattel” of their husbands, was widely exhorted. Even the new Bhartiya Nyaya Sanhita, 2023 omitted the said provision. However, another provision that was slid under the carpet was the Section 498 of Indian Penal Code, 1980, entitled “Enticing or taking away or detaining with criminal intent a married woman” which has been carried forward in the BNS under Section 84, prodding us to ask the question: Did the presumption of husband’s property in wife really cease to exist post the landmark judgment? Laws such as Section 84 of the Bharatiya Nyaya Sanhita (BNS) and Section 219 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) perpetuate the assumption of women as property and its taking away as theft. Justice Indu Malhotra, in the Joseph Shine Judgement for Adultery, said – “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.” (Joseph Shine v. Union of India, AIR 2018 SC 4898)
Now, casting a deeper look at erstwhile Section 198 of the Code of Criminal Procedure (CrPC) and Section 219 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which lay down the procedural framework for the substantive criminal laws IPC and BNS respectively, we find that both regulate prosecution for offences against marriage and are nearly identical in structure, preserving the requirement that courts may take cognisance only upon a complaint made by an “aggrieved person.” They allow third-party complaints in cases involving minors, persons with mental illness, or cultural constraints on women appearing in public, and include special provisions for husbands in the armed forces. Additionally, both sections specify that only the husband is deemed aggrieved in cases under Section 498 IPC or Section 84 BNS, respectively, thereby preserving male-centric grievance logic. The BNSS version replaces some terminology (e.g., replacing “idiot or lunatic” with “intellectual disability” and “person with mental illness”) and raises the age in marital rape exemptions from 15 (CrPC) to 18 years (BNSS), but otherwise carries forward the same procedural framework and gendered assumptions.
Section 84 BNS, states, “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The harm addressed by the provision is not the coercion or exploitation of the woman, but the injury caused to her husband. The redundancy and bias of Section 84 become even more evident when contrasted with Section 140 BNS, which criminalises kidnapping or abduction for murder, ransom, slavery, or sexual exploitation. Unlike Section 84, Section 140 is victim-centric—the crime exists because a person is harmed, regardless of marital status or gender. It protects all persons, including unmarried women and children, from being abducted with criminal intent.
By contrast, Section 84 is husband-centric, i.e. the crime exists only if the woman is married, and only the husband is positioned as the aggrieved party. Thus, even if the act were non-consensual, the law’s language prioritises the husband’s violation, not the woman’s trauma. On one hand, where Section 140 treats the woman as an autonomous victim, Section 84 treats her as the object of someone else’s injury—a legal re-enactment of chattel logic cloaked in procedural form.
Section 219 BNSS (formerly Section 198 CrPC) further entrenches this by stipulating that only the husband shall be deemed the “aggrieved” party in offences under Section 84 BNS (formerly, Section 498 IPC). This structure cannot be justified even under the differentiation between groups in terms of their treatment by law, using the principle of reasonable classification under Article 14 of the Constitution. It requires an intelligible differentia, and a rational nexus to the objective of the law. In simple terms, the differential treatment must have rational and legitimate grounds. Here, the classification based on who has the right to prosecute – only husbands- lacks intelligible differentia, why not concerned parents, siblings or any other person.
The “conjugal right” engendered from the nuptial contract is entrenched in the relationship of dominance and subordination, as argued by Carole Pateman (Pateman 1988). The idea of women being a personal property gained salience with the Law of Coverture and Victorian morality from which the underpinnings of the Indian Penal Code, 1850, were derived. The law of coverture, a doctrine rooted in English Common Law, governed the legal rights and responsibilities of married women in England under which, a femme covert did not have the independent legal status that an unmarried woman (femme sole) held; she generally could not own property, enter into contracts, or take legal actions on her own due to subsumption of her identity into her husband’s, owing to the principle of ‘“Unity of Persons’”. Influenced by the notion that a husband and wife were “one in flesh and blood,” the doctrine effectively absorbed a married woman’s legal identity, rights, and legal powers under the “protection and cover” of her husband, referred to as her “baron” or “lord” (Joseph Shine v. Union of India, AIR 2018 SC 4898).
As detailed in William Blackstone’s ‘Commentaries on the Laws of England’, coverture dictated that upon marriage, a wife’s “being or legal existence” was “suspended” or “incorporated and consolidated into that of the husband.” Consequently, a married woman could not make independent legal decisions without her husband’s consent. This state of dependency was termed coverture, creating significant personal and legal disabilities for the wife. For example, any legal contract made between husband and wife was considered void, since one could not enter into a contract with oneself (Pateman, 1988).
The mediaeval legal treatise ‘Bracton on the Laws and Customs of England’, attributed to Henry of Bratton, elaborated on this principle, emphasising that a husband was both the ruler and custodian of his wife’s property. Marriage, regarded as a sacramental union, fell under the jurisdiction of ecclesiastical courts, thus precluding wives from seeking civil divorce, except on the grounds of adultery. The principle of coverture imposed near-total legal invisibility on married women, who were denied individual liability for legal actions, as it was assumed they acted under their husband’s orders.
The origins of adultery as a legal action in England were established in the 19th-century case Pritchard v. Pritchard and Sims, which acknowledged the husband’s right to pursue legal action against a third party who interfered with his “property” by engaging in an adulterous relationship with his wife. Under this action, the mere act of adultery constituted grounds for a husband to seek punitive damages, and the wife’s consent to the relationship was irrelevant to her husband’s legal recourse. (Joseph Shine v. Union of India, AIR 2018 SC 4898)
Wife was her husband’s “authorised agent”, and any transactions entered by her at shops were contracts between the shopkeeper and her husband. If a wife had been deserted by her husband, the idea of “agency of necessity” was used to enable essential purchases, such as food or clothing, for the household, and her husband was obliged to pay for them unless he could prove she had committed adultery and he was no longer liable for her care. This led to husbands placing notices in newspapers disclaiming liability for their wives’ purchases on the grounds of their wives’ desertion or adultery, highlighting the absence of any financial and social agency among women during this period.
Thence, the provision of Adultery became part of IPC, 1980 under Section 497, which said –
“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, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such cases, the wife shall not be punishable as an abettor.”
The provision granted immunity to women from criminal liability because the act of adultery was based on the assumption that women are “submissive”, “passive”, and “naive”; rather, it is the “outsider” who “seduces” the innocent wife. So the “outsider” man could be prosecuted, not the wife, even if the act was consensual.
Additionally, in the erstwhile Code of Civil Procedure, Section 198(2) of the CrPC restricted wives from filing complaints regarding adultery, limiting women’s legal agency in matters of fidelity. Under the Joseph Shine Judgment (2018), the court expunged Section 497 and Clause 2 of Section 198 on the ground that they violated Articles 14 and 21 of the Indian Constitution. Construing from the Court’s intent, other sections with a similar premise should have invited legislative scrutiny and thus subsequent removal. However, given the paternalistic nature of the law, only the möbius strip of legislation and judicial review seems to be able to tame the discriminatory forces of entrenched institutional structures, of which the persistence of Section 498 of the erstwhile IPC is a testament.
References
Pateman, Carole. 1988. The Sexual Contract. Cambridge. UK: Polity Press.
Joseph Shine v. Union of India. AIR 2018 SC 4898.
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
Bharatiya Nyaya Sanhita, 2023
Bharatiya Nagarik Suraksha Sanhita, 2023
Shubhra Jyotsna Singh holds a Master’s degree from the Centre for Political Studies, Jawaharlal Nehru University.
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