Case Commentaries

CRIMINAL LAW

JOSEPH SHINE V. UNION OF INDIA

(2019) 3 SCC 39

Ms Twinkle Godhwani

LEGAL ANALYSIS: DECRIMINALISATION OF ADULTERY


Introduction:


In older times Adultery was influenced by the concept of patriarchy in our nation and then embedded as an offence in the statute. Section 497 of Indian penal Code states about Adultery as an offence which is a pre-constitutional law i.e. In 1860 when the law on adultery was passed, the women were treated as the property of man and suppressed by man, hence the adultery was treated as injury to man because adultery was considered as theft of his property. Section 497 of IPC was the reflection of this. This offence makes a man criminally liable if he engages in sexual relations with the wife of another man and if the husband of the wife gives consent to such an act of his wife and another man then Adultery does not come into the picture. Nor does this provision give any right to women to legally question or prosecute against her husband in case her husband is involved in adultery neither is the woman liable for the act of Adultery. This provision was discriminatory to our constitutional provisions i.e. equality, non-discrimination, right to live with dignity, etc. when the first draft was made of IPC Even lord Macaulay was not in favor of this provision to be there as criminally liable. He was of the view that this is a private wrong between parties, not a criminal offence. This offence is struck down in many countries and with the changing society, India has also joined these countries by striking down 158 years old law in this prominent Judgement of Joseph shine v. Union of India (2019).[1]


Facts:


In October 2017, Joseph Shine filed a Public Interest Litigation under Art. 32 of the Constitution of India challenging the constitutionality of section 497 of IPC (Indian Penal Code) read with section 198 of Cr.P.C. as being violative of Article 14, 15 and 21 of the Indian Constitution because the law provided under section 497 of Adultery is discriminatory, it is gender-biased and it basically snatches the right of women to live with dignity.


The 5 Judge Constitutional bench was set up to adjudicate in this matter.[2]


Issues raised:


Whether Section 497 of Indian Penal Code is unconstitutional being arbitrary and discriminatory of Article 14 of the constitution?


Whether the provision of adultery shows the women as the property of a man and discriminates against gender bias under Article 15 of the Constitution?


Whether the dignity of Women is compromised under the provision of Adultery?


Previous Judgements:


There have been many attempts to decriminalize the Adultery as an offence but there was no outcome of that, no visible results were there, as continuously in many cases the court has upheld its validity, the women were continuously discriminated against and strangled by man because of the existence of this arbitrary law.


⮚ Yusuf Abdul Aziz v. State of Bombay.[3]


In this case also the constitutionality of section 497 of IPC was challenged as being violative of Article 14 and Article 15 on the base of one statement given under section 497 which says “wife cannot be the culprit even as an abettor”. But the court rejected this plea and affirmed the validity of section 497 of IPC by giving the contention that the said provision is a special provision for women and is protected under Article 15(3) of the Constitution and Article 14 is a general provision it shall be read with its other Articles.


⮚ Sowmithri Vishnu v. Union of India & Anr.[4]


In this case, Petition was filed under Article 32 challenging the validity of a provision of Adultery i.e. section 497 of IPC by stating the fact that the provision does not provide the right to women to prosecute against another woman who indulged in the act of adultery with her husband but the court instead of this discriminatory provision held the validity of provision and stated that the Adultery can be committed by man only not by a woman.


⮚ V.Revathi v. Union of India [5]


In this case also the court held the validity of Section 497 by asserting that this provision does not allow both the spouses to prosecute against each other in fact it punishes the third person who interferes between the relationship of spouses hence it is not discriminatory.


⮚ W.Kalyani v. State through Inspector of police and another [6]


In this case, the validity of Section 497 was not challenged but in this case, the court has clearly stated that women are immune to the charge of adultery and she cannot be charged for this offence.


Judgement Pronounced:


This judgement was one of the renowned and influential judgements. In this judgement CJI Deepak Mishra started by stating that “the wives are not the property of husband and similarly husbands are not masters of wives.”


Section 497 of IPC (Indian Penal Code) was struck down on the basis that this section is against the dignity, status and privacy of women. This section denies equality as it does not provide right to women to give her own consent for sexual acts, it does not provide a right to women to prosecute against her husband, the women also cannot be prosecuted if she has committed the act of Adultery, therefore this provision is violative of Article 14 of the constitution, section 497 shows that man has control over his wife’s sexuality and this provision discriminates between a married man and married woman, therefore, this section is also violative of Article 15. As this section gives importance to the consent of man which subordinates woman hence it is clearly violative of Article 21 also of the Indian Constitution.


Adultery is now considered a private issue between husband and wife. Adultery is now treated as a civil wrong and a ground for divorce because crime is considered as against society as a whole and Adultery is not a crime against society. After this the court stated that the man and woman all are equal in the eyes of law and in society, they shall be treated equally.[7][8]


Critical Analysis of Judgement:


In this recent judgement section 497 was struck down by the supreme court as being violative of fundamental rights of the constitution and now treated as the ground for divorce. This decision is both widely accepted and at the same time criticized by many. According to the author instead of striking down the section 497 of IPC it should be amended, it should be made punishable for both man and woman, at the same time woman should also be provided with the right to prosecute against her husband, both should be made equally liable for their misconduct and commission as in the eyes of law both man and woman are equal, even on one hand we have been watching since long that many laws have been enacted to empower the woman and tried to bring her equal to man in the eyes of society & to protect woman against the cruelty by man and society in fact in the case of live-in relationship also equal rights and status are provided to women by law, but on the other hand we were having the law of Adultery which provided unfair powers to husband over his wife, which was suppressing & discriminating woman, so it is appreciated to take initiative against this law but this initiation of going against this law should be in the form of change or amendment not in form of completely wiping out the law as crime because completely ending up the law being penalize leading towards increase in cases of divorce, which not only destroy the life of man and woman but also affects the lives of their children (if any), their family. That will also result in an increase in crime rates including suicidal rates, the effect on mental health of human beings and other similar harsh consequences.


Rather than decriminalizing it if it would be amended, there was a possibility to reduce the act of Adultery & cases of divorce and other related crimes as penalizing acts as a deterrent to commit an illegal act, the amendment could lead to prevent man as well as woman to commit such an unauthorized act and could be resultant into increasing the understanding between husband & wife that could ultimately aid in making the bond of marriage stronger. As criminal law is considered as a guardian of moral principles of Indian society.


Conclusion:


This is a society with emerging changes. The women are no longer behind the shadow of man, the time has undergone a change. Law is also changing over time according to society. Similar changes took place in this case also. The law which was based on patriarchy was struck down in this judgement because the court was of the opinion that this should no longer be a crime, the court has considered Adultery as a private affair of husband and wife, rejected the contention of a woman to be equally prosecuted & declared it as a ground for divorce by keeping the law of privacy at the first place. This decision has made adultery a hot topic of debate in society.


It must be kept in mind that although the Adultery is not an offence now, it  doesn’t mean it has no consequences, it has found its place in civil law & considered as a ground for divorce in personal law.



References:


[1] K.Pallavi, A landmark judgement which decriminalizes adultery in India, BLOG IPLEADERS, (August 12, 2019), https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/amp/.

[2] Somyagoe, Joseph shine v/s Union of India, LEGAL SERVICE INDIA (January 20, 2019), http://www.legalserviceindia.com/legal/article-3127-joseph-shine-v-s-union-of-india.html#:~:text=In%20the%20recent%20case%2C%20the,leads%20to%20the%20sexual%20anarchy.

[3] Yusuf Abdul Aziz v. state of Bombay (1954) SCR, 930

[4] Sowmithri Vishnu v. Union of India (1985) Supp SCC, 137

[5] V.Revathi v. Union of India (1988) 2 SCC, 72

[6] W.Kalyani v. State through inspector of police and another (2012) 1 SCC, 358

[7] Supa 2.

[8] Devika, Adultery [S. 497 IPC and S. 198(2) CrPC], SCC ONLINE (February 21, 2019),

https://www.scconline.com/blog/post/tag/joseph-shine/.

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