CASE COMMENT on JOSEPH SHINE v. UNION OF INDIA WP (Crl.) 194/2017

BENCH: Indu Malhotra, D.Y. Chandrachud, Ajay Manikrao Khanwilkar, Rohinton Nariman, Dipak Misra
PETITIONER: Joseph Shine
RESPONDENT: Union of India
Date of Judgement: 27/09/2018

FACTS

Joseph Shine, a non-resident from the state of Kerala, filed a PIL under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under section 497 of the IPC and Section 198(2) of the CrPC. The following sections read as follows-
Under Section 497, “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 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” and Section 198(2) of CrPC specified how a complainant may file charges for offenses committed under Sections 497 and 498 IPC. Section 198(2) CrPC specified that only the husband may file a complaint about the offence of adultery.
The court reviewed the correctness of the precedents- Yusuf Abdul Aziz v. State of Bombay[1954 AIR 321], Sowmithri Vishnu v. Union of India and Anr 1985 SCR Supl. (1) 741 and V. Revathi v. Union of India and Others 1988 SCR (3) 73 – which have in the past upheld section 497 as constitutionally valid.
The Centre filed an affidavit in the month of July, arguing that diluting adultery in any form will impact the ‘sanctity of marriage‘. The five-judge Bench started hearing the matter from 1st August 2018 onwards and finally on 27th September, the Bench delivered its judgment, decriminalizing adultery.

Issues Raised

1) Whether exemption granted to married women under Section 497 violates articles 14 and 15 of the Constitution?
2) Whether the benefit of section 497 be given to one specific gender?
3) Whether Section 497 is an excessive penal provision which needs to be decriminalized?

The Contention of Petitioner:

1). Petitioner contended that Sec. 497 IPC is violative of Articles 14 and 15 of the Constitution, being directly discriminatory against men since it punishes men alone for the commission of adultery when adultery is admittedly an act between a man and woman. It was further submitted that punishing only one of the parties by holding an erroneous presumption, is arbitrary and strikes at the root of anti-discrimination clauses of Article 14 and 15.
2). The second contention was that the section is indirectly discriminatory against women and limits the sexual freedom of the married woman but not of a married man and this eventually leads to several dimensions like women is incapable of committing adultery and is a property of man rather than a person with dignity.
3). The last contention was that the said section is violative of the Fundamental Right to Privacy since the right includes decisional privacy and decisional privacy includes at least a right to make one’s own decisions about intimate matters.

Judgement:

The main judgment was delivered by Chief Justice Mishra and Justice Khanwilkar while separate and concurring opinions dwelling on a range of issues from the antiquity of adultery to sexual and individual autonomy interspersed with legal, historical and literary anecdotes were delivered by Justices D.Y. Chandrachud, Nariman and Indu Malhotra. “A constitutional court cannot remain entrenched in precedent for the controversy relates to the lives of human beings who transcendentally grow,” observed the lead judgment. All the judges concurred that the section had an element of “romantic Paternalism” wherein it reduced the woman to a chattel. Section 487, and the concept of adultery, circumscribed as it was too monogamous relationships, was curiously silent on extramarital relationships between a married man and an unmarried woman or widow. A man was liable under certain conditions and not under another set of conditions. It was, therefore, arbitrary and malifidely irrational. In any case, there needs to be a classification based on an intelligible differentia which distinguishes between persons or things that are grouped together and the said differentia must have a rational nexus with the object sought to be achieved by the legal provision. In any event, it is pointed out in the judgment that theoretically punishing adultery would not act as a guarantee to save a marriage. It said adultery was often not the cause of an unhappy marriage but a result of it. Justice Nariman held that used in a liberal perspective the law can enhance democratic values and that “law and the courts had a responsibility in the application and conferring of constitutional rights”. While testing the validity of Section 497, “we also test the constitutionality of moral and societal regulation of women and their intimate lives through the law”, he observed.

COMMENT

The judgment has put forward a good step and has left no stone unturned to bring in lucidity to the law, as it struck down Sec 497 IPC and Sec 198(2) of CrPC as both the sections are based on discriminative classification against women. The provision is being discriminative in multifarious ways, firstly it does not give a woman the right to prosecute her husband who has committed adultery and secondly it does not punish a woman, not even as an ‘abettor’. When the time demands it becomes necessary for the court to have keen scrutiny of the provision in the context of progressive interpretation. A constitutional court cannot remain entrenched in a precedent and perpetuate the dogmas, because any controversy which relates to the lives of human beings transcendentally grows. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have space. It is abhorrent to any kind of regressive approach. What might be acceptable at one point in time may transmogrify into total insignificance at another point in time. Recently the Bombay High Court according to the law laid down in A.S. Gauraya v. S.N. Thakur (1986) 2 SCC 709 , in which it was held that law declared by Supreme Court applies to even the pending proceedings with retrospective effect. In effect, the clauses which have been declared unconstitutional vacuumed out the agency of a woman to be a willing participant, a discriminatory practice and it is time to say that husband is not the owner or ruler of wife.

Author: Shaijal Shekhar,
Faculty of Law, A.M.U (2nd Year)