Case Commentary on Joseph Shine v. Union of India

INTRODUCTION

The practice of Adultery is considered as a criminal offence not only in this era but since ages. Interestingly, Indian folklore and epics are full of stories about extra-marital love. According to scholar J Moussaief Masson, majority of poems on love in the language Sanskrit, are “about illicit love”.

But Manusmriti, an ancient Hindu text, says: “If men persist in seeking intimate contact with other men’s wives, the king should brand them with punishments that inspire terror and banish them”.

Section 497 of Indian Penal Code was the section dealing with the act of Adultery. Section 497 stated 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.”

The Supreme Court of India has struck down the Victorian Morality Law which is as old as 158 years, on Adultery, in a recent judgment given by it in the case of Joseph Shine v. Union of India[1]. There have been numerous debates on the provisions of law related to Adultery. The major bone of contention is that the language used in Section 497 was discriminatory towards women as they have not rights to prosecute their adulterous husbands. Whereas Men raised the point that the law punishes only a man for adultery and the woman on the other hand is not even considered an abettor.

Also the concept that only men can seduce has also changed in the present scenario. “The Legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect quality, admitting no power and privilege on the one side, nor disability on the other.[2]” This passage from British philosopher and economist, John Stuart Mill, was noted by the Supreme Court while deciding upon the validity of Sections 497 IPC and 198 CrPC.

This Judgment is very unique in itself because it has overruled all the previous judgments that criminalized the act of Adultery. Every coin has two sides and so does this judgment. With various positive aspects this judgment brings to us certain negative aspects as well. Though Adultery has become legal but in our society it is still not considered ethical. The pillars of the institution of marriage are the trust and confidence between the partners.  The Court has decided to not interfere in the personal and ethical lives of people and hence it stepped down, making Adultery just a Civil wrong with Divorce as its only remedy.

LEGAL BACKGROUND OF THE CASE

The very important question of the constitutional validity of Section 497 of the Indian Penal code along with Section 198 of Criminal Procedure Code has come before the Court of law on various occasions earlier as well.

In the case of Yusuf Aziz v. State of Bombay[3]  the appellant was charged under Section 497 of the IPC for Adultery. The High Court of Bombay had its decision against him but awarded him a certificate to file a petition under Article 136 of the Constitution of India in the Apex Court. In the Supreme Court, he argued that Section 497 of IPC is illegal as it invalidates the Articles 14 and 15 of our Constitution. When the act of Adultery is performed the women give her consent and are equally liable and should also be punished.

The Court said that the contended provision comes within the scope of Article 15(3) of the Constitution that relates to special provisions for women and children. Therefore the Appellants appeal was dismissed and the validity of Section 497 of IPC was held constitutional.

In another case of Sowmithri v. Union of India[4] the petitioner’s husband accused a man of Adultery with his wife (the petitioner) and filed a suit against him. The Petitioner in her counterclaim against the validity of Section 497 of IPC stated that women do not have any rights to sue their Adulterous husbands and the Section gives free opportunity and license to the male Spouses to have Adulterous relationships with unmarried females. Therefore the Section stands against the spirits of Article 14 and 15.

The court countered that in a relationship of Adultery it is the man who seduces the woman, therefore making the woman victim of the act and not as the offender. Not only this, the court also disagreed to the point of a husband having an illegitimate relationship with an unmarried woman and hence held the Section 497 valid.

In Revathi v. Union of India and Ors[5] case, the wife of the Petitioner contended that the wife cannot be refused the right to prosecute her husband. When we read the Section 497 of IPC with Section 198(2) of Crpc, they violated the Article 14 enshrined in our constitution and deny the opportunity to women to prosecute their husband for Adultery. The court decided that the denial of the right to prosecute the husband is balanced with the denial of the husband’s right to accuse his wife for Adultery. According to the Section 497, only males can be convicted for Adultery. Therefore the section does not violate Article 14 and is constitutionally valid.

In October 2017, Joseph Shine, a 41 year old, non-resident Keralite and an Italy based Indian Businessman, filed a Public Interest Litigation under Article 32 of the Constitution of India, which challenged the Constitutional validity of Section 497 of IPC, as the language of the same implies that women are the property of their husbands. His petition elucidated that “Married women are not a special case for a purpose of prosecution of Adultery. They are not in any way situated differently than men.”

ISSUES IDENTIFIED

1. Whether Section 497 of IPC and Section 198(2) of CrPC are constitutionally valid?
2. Whether the Provisions contained in Section 497 of IPC and Section 1989 of CrPC arbitrary and against Article 14 of the Constitution?
3. Whether Section 497 of IPC discriminates on the ground of gender?
4. Whether Section 497 of IPC violates Article 15(1) of the Constitution?
5. Whether Section 497 of IPC violates Article 21 in respect to sexual autonomy?
6. Whether Section 497 of IPC and Section 198 of CrPC legitimate as per today’s definition of morality?

ARGUMENTS FROM BOTH THE SIDES

PETETIONER’S ARGUMENTS:

• The ancient and historical in which Section 497 of IPC was framed and included in the Code is not longer applicable in today’s modern society. This law does not make sense in current scenario of India and is no longer relevant in the general public.
• The very base of the law i.e. Section 497 of IPC and Section 198 of CrPC are very discriminatory and violates article 14 of our constitution. It does not give the right to the women to prosecute her husband involved in the act of adultery. It does not fulfill the criteria of equal treatment for all and is discriminatory on the grounds of marital status as well.
• The classification made by section 497 holds no sensible connection with the object sought to be achieved as it is based on the classification made on sexism and hence is totally discriminatory.
• Section 497 punishes only the male for the act of adultery and the female who is also very much involved in the act is not punished, even as an abettor.
• The right to privacy given under Article 21 of the constitution also would include the right to enter into sexual relationship outside the institution of marriage between two adults.[6]
• The scope of Article 15(3) cannot take under the exemption from an offence having illegal consequences, as a section to promote oppression of women is not acceptable in law and cannot hide under the pretext of protective discrimination.
• A legislation that declines the women of their right to prosecute cannot be termed as ‘beneficial legislation’ under Article 15(3) of the constitution.
• This Section 497 does not take under its ambit the scope of extra marital affair with an unmarried, widow or a divorced woman.
• The court observed that on going through Section 497, we understand that women are treated secondary to men as when there is consent of the man it is treated as no offence, therefore implying that women are the property of man and they are the masters of them.
• When a woman enters into an adulterous relationship with another man outside the institution of marriage with pure consent and knowledge, it is very impractical to think of her as a ‘victim’ and the man as a ‘seducer’.

RESPONDENT’S ARGUMENTS:

• The right and freedom to have sexual relationship with consent, outside the institution f marriage, does not come under the ambit and scope of protection of Article 21. Also the right to privacy and personal liability is not an absolute right and is subject to certain restrictions which are reasonable and for the benefit of public interest.
• Section 497 is a special provision for the benefit of women and hence is covered by Article 15(3) which relates to protective discrimination.
• This act of Adultery outrages the morality of society and is dangerous to its members. This act hence should be punished as a crime.
• Family is a very fundamental and important unit of our society. If people enter into adulterous relationships breaking the sanctity of the institution of marriage, it will disrupt families and also the societies at large.
• Adultery does not only sabotage the marriage of two individuals but also ruins the future and mental stability of their child. Hence it is for the public interest to consider adultery as a criminal offence.
• Though it is a private affair between two people, it is not a victim-less crime for the society. Marital relationship is based on trust and this act destroys the trust between the partners. Also their family and their child’s future.

JUDGMENT AND REASONING

The court struck down Section 497 of IPC as being unconstitutional and violating the Articles 14, 15 and 21 of our Constitution. The court also decided to strike down Section 198(2) of CrPC as unconstitutional to the extent that whenever it is applicable to Section 497 of IPC.

The main Judgment was delivered by then Chief Justice Deepak Mishra and Justice Khanwikar. Also separate and concurring opinions immerged on a variety of issues consisting of antiquity of adultery to sexual and individual autonomy intermingled with legal, historical and literary anecdotes delivered by Justice D.Y. Chandrachud, Justice Nariman and Justice Indu Malhotra.

SECTION 497 IS ARCHAIC AND IS UNCONSTITUTIONAL

This law takes away from a woman her autonomy, dignity and privacy. It is a threat on her right to life and personal liability as it undermines the essence of equality in the institution of marriage. This takes place as the law has a gender based approach to the relationship of a man and a woman. Sexual autonomy is very personal and integral part of privacy and falls within the ambit of personal liability under Article 21 of the Constitution of India. We should firstly bring into recognition the expectations one has from the relationship and should also acknowledge them.

Respect of choice and equal element of companionship is one of those expectations and this can only be fulfilled when both the partners treat each other with equality and dignity. This law is very biased towards men as it treats women as subordinate to man and that they cannot consent to have sexual relationships and hence makes them a sexual property of their partners/ husbands. This violates Article 14 of our constitution as it is based on gender stereotypes and discriminates on the basis of sex violating the spirit of Article 15.

SECTION 497 NO LONGER A CRIMINAL OFFENCE IN TODAY’S WORLD

The act that is committed on the society as a whole is termed as crime. But adultery is a very personal issue. Declaring adultery as a crime would be equivalent to state entering into private lives of the individuals. If treated as a crime, adultery would not satisfy the criteria of crime as it will be infringement of the personal and private affair of marriage. Adultery will continue to be a civil wrong and a strong ground for divorce. It is the sole decision of the husband and wife, what happens when one of them commits adultery and it will be very difficult for the court to jump into their personal matter and find out the circumstances that led them to take such step. Hence, terming adultery as a crime would allow injustice to creep into the system of law.

HUSBAND IS NOT THE MASTER OF THE WIFE

This Judgment stresses on the fact that women are not the property of their fathers or their husbands. They are equal to man in every sphere of life and should be given equal opportunities to put forward their stance.

RATIO OF THE CASE

It was observed by the court that as the time passes the conceptual equality of the women and dignity should be recognized and they are entitled to have it. There can be denial for the same. But the abovementioned section successfully does the same by making distinction based on gender stereotypes which makes the individual dignity of the women hollow. Besides the component of the consent of the husband for indulgence in any sexual activity with other male, typecast the subordination of women. Therefore the court did not hesitate in holding the law unconstitutional.

CRITICAL ANALYSIS

The judgment in Joseph Shine has put forward a very good and essential initiative by striking down Section 497 of IPC and Section 198(2) of CrPC, as both of these sections were based on discrimination and arbitrariness against women. The provision was arbitrary in two ways, first being, it did not allow the woman to prosecute her adulterous husband and secondly, it did not punish women for adultery, not even as an abettor.

The present case will lead to a drastic increase in suicide rates in marital relationships, resulting in increase in prosecution under Section 306 related to abetment of suicide. It would have been better if the Section in IPC would have been amended instead of eradicating it completely. The barring of women in this provision discriminates the sexuality of women by very vigilant removal of it. Section 198 of CrPC could have been struck down instead, as it curbs women from prosecuting their husbands for adultery.

On the other hand this judgment has also very successfully used the idea of transformative justice. It is seen that maximum numbers of progressive nations around the world have abolished the criminal element of adultery. As the matter is very private and intimate to the couple, the action can be taken only for it being a civil wrong or a claim in law of torts. It is very critical to note that adultery can take place due to unhappy married life. It is the fundamental right of the couple to be left alone in their private sphere, having freedom to proceed for a civil remedy, if they want to do so.

However, we all know that adultery is an accepted norm in the society till today. The moral perceptions of the society will surely not accept adultery as a new normal. However, it is everybody’s duty to follow whatever constitutional morality is set by the constitution. The rule of law is the basic feature of the constitution and cannot be ignored.

I would like to state that the intent of the Supreme Court in this case is very gracious. The court has tried to uphold the spirit of our constitution by standing against the gender inequality that has been a major point of argument over many years on the issue of adultery. But also we must not forget a very fundamental unit of our society that is family and marriage. Adultery is not only harmful to the reputation of the family but also deviates the person from socially accepted norms, ethics and morals.

It can also in many cases result in the complete destruction of the family. A moral law cannot be legal right is the thinking of many natural law thinkers. Later many positivists agreed to the point that laws should have moral content in them. This practice of adultery results in bad future of the child in many cases, breakdown of the family and destroys the reputation of the family in the society. But this declaration of the law as unconstitutional has also helped women gain their deserved social status that must be equal to men.

Women must not be treated as a property of their husbands and should stand equally with them in all spheres of life.  It is rightly cited by Justice Indu Malhotra in her Judgment that “Women are no longer invisible to law, and they no longer live in the shadows of their husbands.”

CONCLUSION

• The court said that treating adultery as a crime in India would dither the spirit of Articles 14, 15 and 21 of our constitution. Thus the court took the step of transformative constitutionalism and said that making adultery a crime is unjustifiable in law.
• The court held the Section 497 of IPC and Section 198 of CrPC unconstitutional and declared that adultery will no more be a criminal offence.
• Section 497 consisted many loopholes in it despite being a provision that protected the institution of marriage.
• The decisions in Sowmithri Vishnu and V. Revathi and many other judgments related to adultery were overruled.

[1] WP (Crl.) 194/2017

[2] John Stuart mill on Subject of Women

[3] 1954 SCR 930

[4] 1985 AIR 1618

[5] 1988 AIR 835

[6] Shafin Jahan v Ashokan K.M. & Ors (S.L.P. (Crl.) No. 5777 of 2017)

Author: Archita Tiwari,
NATIONAL LAW INSTITUTE UNIVERSITY (1st Year)