Rajasthan High Court: Supreme Court's Joseph Shine Judgement Decriminalizing Adultery Applies Retrospectively, All Pending Cases To Be Discarded

The Rajasthan High Court has held that the Supreme Court's 2018 judgement in Joseph Shine v. Union of India which decriminalized adultery will be applicable retrospectively and thereby nullifying all ongoing and pending cases.

The Court was considering a Petition seeking quashing of an order whereby cognizance was taken against the Petitioner for the offence punishable under Section 497 of the Indian Penal Code.

The bench of Justice Anand Sharma held, "In the light of above consistent judgments, it is clear that the objection raised by the learned Public Prosecutor regarding the prospective application of judgment of the Hon'ble Supreme Court in the case of Joseph Shine (supra) is unfounded and cannot be accepted. Thus, it is hereby held that the declaration of unconstitutionality of Section 497 IPC by the Hon’ble Supreme Court operates retrospectively, nullifying all pending prosecutions based solely on that provision. However, the proceedings already culminated in the cases by concluding the trials prior to the judgment in the case of Joseph Shine (supra) cannot be reopened."

The Petitioner was represented by Advocate Rajneesh Gupta, while the Respondent was represented by Public Prosecutor Vivek Choudhary.

Facts of the Case

The marriage of the Complainant was solemnized in the year 2000 and two children were born out of their wedlock. The Complainant lodged a Complaint before the Trial Court alleging that his Wife, who was working as a teacher at Saint Soldier School, Jaipur, had developed physical relations with the Petitioner who happened to be her student. On the basis of said complaint, FIR was registered under Section 497 of the Indian Penal Code.

After investigation, the Police submitted a negative final report finding absence of any evidence in support of the allegations in FIR and observing that the FIR appeared to have been lodged merely on suspicion. A Divorce Petition between the Complainant and his wife had already been filed in the year 2005.

The Complainant filed a Protest Petition, which was dismissed and the negative final report was accepted by the Trial Court which eventually took cognizance against the Petitioner for the offence punishable under Section 497 of the IPC.

The Petitioner challenged cognizance order and during the pendency of the Revision Petition and during the pendency of the Revision Petition, the Supreme Court delivered judgment in the case of Joseph Shine v. Union of India, 2019, striking down Section of the 497 IPC as unconstitutional, being violative of Articles 14, 15 and 21 of the Constitution of India.

Nevertheless, the Revisional Court dismissed Petitioner’s Revision holding that the judgment of Joseph Shine (supra) would operate prospectively.

Reasoning By Court 

The Court ruled that in the case of Joseph Shine (supra), the Supreme Court struck down Section 497 IPC as unconstitutional being violating fundamental rights, which would apply retrospectively to all pending and ongoing cases.

"This retrospective application means that when the law was void ab initio, prosecutions under it could not legally stand. Unlike prospective overruling, retrospective effect here is necessary to fully uphold constitutional guarantees of equality, dignity and privacy, which would resultantly invalidate past and present pending prosecutions under the abolished law", it held.

The Court further observed that the declaration of unconstitutionality by the Apex Court in above case did not contain any qualification restricting its operation prospectively.

"Once a provision is declared unconstitutional, it becomes void ab initio and cannot be the basis of any prosecution thereafter or even in respect of pending proceedings", the Court stated.

The Petition was accordingly disposed of.

Cause Title: Anuj Sharma v. State of Rajasthan (2025:RJ-JP:44461)

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