Joseph Shine v Union of India

Benjamin Carson said that “Marriage is a very sacred institution and should not be degraded by allowing every other type of relationship to be made equivalent to it”.  With respect to adultery, we can say that “Father proposes and the son disposes”. In 1985 the then Chief Justice of India YV Chandrachud upheld the validity of section 497. But after 30 years his son Justice DY Chandrachud in August dumped on the judgment by saying “We must make our judgments relevant to the present day”. The Supreme Court has quashed the 158-year-old provision on adultery which is defined under section 497 of the Indian Penal Code in its judgment in the case of Joseph Shine v Union of India. Although adultery has become legal but is still not ethical and is against the morality, as the marriage is basically based on the confidence of the partners in each other. Now adultery is only a civil wrong and the remedy for the act of adultery is only divorce.

Section 497 IPC and 198(2) of CrPC:

Section 497 IPC lays down that 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 case the wife shall not be punishable as an abettor.

Ingredients for Adultery:

• Sexual Intercourse must have happened between a married man and a woman whom he believes to be the wife of another man.
• The woman must have consented to such sexual intercourse.
• The act should take place without the consent of the husband of the man.
• All the parties should be proven to be married.

Plain reading of Section 497 shows that adultery in India is based on the notion of patriarchy and male chauvinism. This offence makes a man criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband consents or connives to such an act it will no longer be adultery. There is no right to a woman in case her husband commits adultery. Thus, the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her as a sexual agency. This law basically provides that any person who is engaged in sexual relation with the wife of another man and the husband of that woman gives his consent for the same then such act won’t be charged for adultery. This clearly denotes that how women are considered as a toy in the hands of their husbands.

Section 198(2) of CrPC:

Section 198(2) of CrPC lays down that for the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. 

Earlier Precedents:

Yusuf Abdul Aziz v. Sate of Bombay, (1954) SCR 930, AIR 1954 SC 321:

In this case, the Hon’ble court was dealing with a fact situation where the question arose that whether section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case the appellant was being prosecuted for adultery under Section 497 of IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional validity of section 497 IPC. The Court observed that S. 497 IPC was a special provision which was made for women only and was saved by Article 15(3) of the Constitution.

According to the Court sex was a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.

Sowmithri Vishnu v. Union of India, (1985) Supp SCC 137:

A petition was filed and preferred under article 32 of the Constitution which challenged the validity of Section 497 of IPC. It was contended before the Court that the concerned section does not confer any right upon the wife to prosecute the woman with whom her husband had committed adultery. The wife also had no right to prosecute the husband who has committed adultery with another woman. It was submitted that Section 497 did not take in its ambit those cases where the husband has sexual relations with an unmarried woman and that husbands had a free licence under the law to have extramarital affair or a relationship with unmarried woman. The submission was advanced that section 497 is a flagrant instance of “gender discrimination, legislative despotism and male chauvinism”. However, the Hon’ble Court repelled the aforesaid submissions and held “The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough.” The court stated that breaking a matrimonial home is no less a crime than breaking a house. The Court felt that these arguments could only be taken into consideration by the Parliament for amending the relevant provisions. The court also placed reliance on Yusuf Abdul Aziz case and held that the same does not offend Articles 14 and 15 of the Constitution and opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.

V. Revathi v. Union of India And Others, (1988) 2SCC 72:

In this case the court analysed the design of the provision and ruled that “the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus, both the husband and the wife are disabled from striking each other with the weapon of criminal law’’.

Here the Court placed heavy reliance on the three-judge bench in Sowmithri Vishnu case and proceeded to state that the community punished the outsider who broke into the matrimonial home subject to the rider that the erring man alone could be punished and not the erring woman. It was observed that there was reverse discrimination in favour of the woman rather than against her. According to the Court there was no discrimination against the woman insofar as she was not permitted to prosecute her husband.

By expressing the above said view, the court stated that the concerned provision or section was not vulnerable to any kind of hostile discrimination.

W. Kalyani V. State Through Inspector of Police and Another, (2012) 1 SCC 358:

In this case, the court noted that section 497 IPC was under criticism from certain quarters for displaying a strong gender bias because it made the position of a married woman almost a property of her husband. The provision also came under criticism on the ground that only a man could be proceeded against and punished for adultery and the wife could not be punished even as an abettor. The issue of constitutional validity of Section 497 of IPC and Section 198 CrPC did arise in the concerned case.

Joseph Shine v Union of India, AIR 2018 SC 4898, 2018 SC 1676

In December 2017, a Public Interest Litigation Petition was filed challenging the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. A three Judge Bench, headed by the then Chief Justice of India, Deepak Mishra, had referred the petition to a five Judge Constitution Bench, conceding that the law dis seem to be archaic.

Petitioner	Joseph Shine
Respondent	Union of India
Intervenor	Partners for law in department; Vimochan
Lawyers for Petitioner	Kaleeswaram Raj
Lawyers for Respondent:	K.K. Venugopal
Lawyers for Intervenor	Meenakshi Arora; Jayna Kothari; Sunil Fernandes
Decided on	27th September 2018
Judges/Quorum:	Justice Deepak Mishra, Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra.

Facts of the Case:

• The petition was filed by a non-resident of Kerala named Joseph Shine who has raised question on the constitutionality of the Section 497 of the Indian Penal code.
• Petition was filed under Article 32 and he challenged the constitutionality of Section 497 of IPC read with Section 198 of Code of Criminal Procedure, he said that this is being violative of Article 14, 15 and 21.
• The reason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands.
• As it was observed that, Petitioner’s close friend in Kerala committed suicide when a women co-worker made malicious rape charge on him.
• Further he claimed that Section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism.
• The traditional framework within which Section 497 was drafted, is not any longer applicable in modern society.
• This was initially a PIL filed against adultery.
• The petitioner claimed the availability for adultery to be arbitrary and discriminatory on the idea of gender.
• The petitioner claimed that such a law demolishes the dignity of a lady.

Issues Involved:

• Whether section 497 of Indian Penal Code is unconstitutional?
• Whether exemption granted to married women under section 497 violates the right to equality under constitution?
• Whether section 497 should be made gender neutral by including women as offenders?

Following issues were also addressed:

• Law of adultery provides that man to be punished in case of adultery but no action is suggested for the women.
• Section 497 does not provide that a woman can file a complaint of adultery against her husband.
• And if the husband gives the consent for such an act, then such act is no more considered as a crime
• Section 198(2) of Criminal Procedure Code allows a husband to bring charges against adultery not the wife.

Provisions Discussed:

• Section 198 (2) of The Code of Criminal Procedure – defines that only the husband can be the aggrieved party.
• Section 479 of the Indian Penal Code – defines punishment for adultery.
• Article 14 – Right to equality – Adultery only prosecuted men and not women and hence, it was considered to be a violation of Article 14.
• Article 15(1) – prohibits the State from discriminating on the grounds of sex – The law only considered the husbands as the aggrieved party and no charges against women.
• Article 21 – protection of life and personal liberty – Women were treated as the property of their husbands under this law, which is against their basic dignity and individuality.

Contention of Petitioner:

The Counsel of Petitioners contented that:

1. The Petitioner argued on an outlined numerous components of Section 497 that the counsel believed were infringing on his fundamental rights.
2. The counsel urged that, it was maintained that the law provided for a man’s penalty in the event of adultery, but not for a woman’s punishment. Due to the lack of a legal provision to that effect, a woman could not make a complaint against her husband for adultery under the Section.
3. Furthermore, the counsel of Petitioner claimed that under this rule, women were treated as objects because the act was considered “illegal” depending on the husband’s agreement or lack thereof.
4. The Petitioner claimed that because of their paternalistic and arbitrary nature the restrictions infringed on fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution. Since sexual intercourse was a mutual and willing act for both participants, it was argued that neither should be held liable.
5. The Petitioner also claimed that Section 497 of the IPC violated Article 21- fundamental right to privacy because the choice of an intimate partner lay clearly within the realm of sexuality autonomy. It was argued that each individual (married or not; male or woman) had an unrestricted right to engage in sexual intercourse outside of his or her marital connection.

Contention of Respondent:

The counsel of Respondent Countered the Argument of the Petitioner and contented that:

1. Allowing persons to have sexual encounters outside of marriage.
2. According to the counsel of Respondent, it would eventually destroy the institution of marriage, and hence the clause criminalising adultery was necessary to safeguard the sanctity of marriage.
3. The counsel argued that an act that it offended society’s morality and its members should be punished.
4. The Respondent claimed that the right to privacy and personal liberty guaranteed by Article 21 was not absolute and might be limited when a legitimate public interest was at risk. Section 497 was also considered to be lawful as a type of affirmative action in favour of women.

Judgment:

The court in its judgement to this case struck down Section 497 of the IPC and held that this Section is violative of Articles 14, 15 and 21 and declared it unconstitutional. Court also held that Section 198(2) of the CrPC is also unconstitutional to the extent it is applicable to Section 497 of IPC. Thus, court here overruled all the previous judgements passed in this matter.

• The court in explanation said that every individual has full autonomy to make decisions regarding their sexual life. 
• If any wrong has criminal sanctions it should be a public wrong, but in adultery cases the wrongs are considered as private wrong. The right to dignity provides that punishments should be granted only when absolutely necessary and a proper analysis should be done before deciding it.
• Also no one can treat a woman as a chattel or some property.
• This law is almost ancient and has been created in a period when there was no constitution and thus, in those times the constitutionality not even a question nut now in present times such patriarchal laws do not hold any significance.
• Though the act of sexual infidelity is morally wrong but it does not give sufficient conditions to criminalize the same. The harm principle contains 3 elements. 1) harm 2) a wrongdoing 3) public element. All of these elements are needed to be proved to classify a wrongful act as a criminal offence. 

Thus, on above lines the Apex Court in its judgement declared that the law is quite discriminatory and is not consonant with the contemporary times and hence declared void. Thus, adultery as an offence has ceased to exist and now it can only be used as an excuse for divorce but its committers can’t be penalised.

Conclusion:

Law of adultery i.e. Section 497 is anachronistic and is unconstitutional. This section denies the substantive equality and it reinforces that women are unequal participants in a marriage, and she is incapable of freely consenting to a sexual act in legal order which regards them as the sexual property of their spouse that is why it is violating Article 14, 15 and 21. Section 497 is no longer a criminal offence still it is a ground of divorce and maintenance. Crime does not affect an individual, it affects the whole society, adultery is a personal issue, if adultery is treated as a crime, then it would be equivalent to the state entering into a real equivalent to the state entering into a real private realm. Adultery is not fitted in the concept of the crime as it extends into the private space of marriage. The husband is not the master of his wife. Section 497 shows arbitrariness. In the judgment it was illustrated that a consent given by the husband does not preserve the sanctity of the marriage.

Though the judgement is a progressive one but it totally rules out the crime of adultery from our laws and hence making the protection of the rights of a spouse in a marriage quite vulnerable. It somehow weakens the institution of marriage by giving absolute liberty by striking down adultery. Thus, this law is criticized on the notes of its socio- cultural impact. Thus this case gives a vague ending to the concept of Adultery.