BY- PRAKHAR SINGH
IN THE SUPREME COURT OF INDIA
|NAME OF THE CASE||Joseph shine vs. Union of India|
|CITATION||Writ petition (Crl) no. 194 of 2017|
|DATE OF THE JUDGEMENT||27, September, 2018|
|RESPONDANT||Union of India|
|BENCH/JUDGE||Chief Justice Dipak Mishra, Justice A. Khanwilkar, Justice R. F. Nariman, Justice D. Y. Chandrachud, Justice Indu Malhotra|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India; Indian Penal Code, 1860; Criminal Procedure Code, 1973|
|IMPORTANT SECTIONS/ARTICLES||Indian Penal Code, 1860, S. 497, S. 498, S. 498-AConstitution of India, Arts. 14, Arts. 15(1), Arts. 21, Arts. 15(3), Arts. 32, Arts.228 Criminal Procedure Code, 1973, S. 198|
According to section 497 of the IPC, adultery is defined, the Supreme court upheld the validity of this section despite the fact that it had been addressed and brought up in court many time. The 158 year old morality law prohibiting adultery was overturned by the Indian Supreme court on 27th September 2018 in the case of Joseph shine vs. Union of India. In the judgement, it is well explained that how the concept of adultery has grown over time. The control over the sexual agency of the spouse, the wife as the property of the husband. The women’s devotion and the husband’s control over it, are considered as maintaining the possession of a husband in his wife.
Joseph Shine, a non-Kerala resident, filed the writ petition and raised the issue of the constitutionality of Section 497 of the IPC. The judgement of current case overruled all the past judgements which upheld the prohibition of adultery. The issue arise that whether adultery can be considered under crime or not. The opinion of the court is that adultery does not match the definition of a crime . If adultery can be considered as a crime, there would be a serious breach into the extreme privacy of the marriage relationship. It would be preferable if adultery could still be used as grounds for divorce. Although adultery is now legal, but society still views it as immoral. Adultery is exclusively regarded as a civil wrong, and the only available remedy is divorce.
Honorable Supreme court of India cannot interfere in a person’s private or moral affairs.
In India, male chauvinism and patriarchy were the guiding principles in the legalisation of adultery. When a man engages in sexual activity with a woman who is the wife of another man, adultery is committed. And it won’t be adultery if the male gives his consent or complicity to the act. Adultery was considered a shameful behavior in ancient times, whether it was committed by a married man or woman. In India, a woman is not viewed as the perpetrator of an act but rather as the victim of a man’s seduction into committing the crime. Our constitutional principles, such as equality, non-discrimination, and the freedom to live in dignity, among others, are violated by the statute of adultery.
Lord Macaulay, The creator of Indian Penal Code “criticized its presence in the penal code as an offence rather suggested that it should be better to place in the civil wrong”. The law changes over time, and numerous recent judgements have expanded the scope of fundamental rights to reflect shifting societal ideals and rising individual liberties.
Since its commencement, Section 497 of the Indian Penal Code has been the subject of debate and controversies for a number of reasons, including its gender bias approach, equality, and ability to reflect cultural conflicts. Strong arguments have been made both for its modification and removal from penal statutes.
The Indian Penal Code Section 497 has been challenge on the grounds that it frequently violates the spirit of equality inculcated in the constitution. One of the most controversial cases was in 1951, when Yusuf Abdul Aziz, “who was charged for adultery, struggle before the Bombay High Court that Section 497 of IPC is unconstitutional as it in infringement of Article 14 and 15 of the constitution as it intervene unequally between a man and women by making the former of women and against men”.
Writ Petition: “writ petition is an order by a higher court to a lower court or courts, directing them to do something or stop them from doing something. Writ is a form of written command in the name of the court. It directs you to act in a specific way.
In the Indian legal system, you can file or draft a writ petition under Article 226 in the High Court and under Article 32 of the Indian Constitution in the Supreme Court. Article 32 and Article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. Or else, at any point in time, you can consult an expert lawyer to draft a writ petition for you. You can also file a criminal or civil writ petition in the High Court or the Supreme Court, depending on the case matter. In case the High Court doesn’t give a suitable judgment, you can then submit the petition of the writ in the Supreme Court.”
FACTS OF THE CASE
Joseph Shine, hotelier filed a writ petition under Article 32 challenging the constitutionality of section 497 of the Indian Penal Code read with section 198 of the CrPc, which is the infringement of Articles 14, 15, and 21 of the constitution. The major reason of this petition was to protect Indian males from being punished for extramarital affairs by women or their husbands. In Kerala, the close friend of the petitioner committed suicide after a female co-worker falsely accused him of rape. The petitioner argued that the provision of adultery was arbitrary and discriminatory against women. A powerful example of sexual injustice, authoritative imperialism, and patriotic masculinity is Section 497 of Indian Penal Code. The traditional context in which section 497 of the IPC was drafted was not appropriate in contemporary culture. This law undermines a woman’s dignity.
ISSUE RAISED BEFORE THE COURT
- Whether the section 497 of Indian Penal Code is unconstitutional?
- Whether section 497 of the IPC read with section 198 of the CrPc is the infringement of Article 14, 15 and 21 of the constitution of India?
- Whether the provision for adultery is arbitrary and discriminative under Article 14?
ARGUMENTS FROM THE APPELANT SIDE
- Learned counsel for the petitioner submitted that section 497 tended to violate the fundamental rights of the person. It was argued that the law provided for a man’s punishment in case of adultery, whereas no action was taken against the women.
- It was also argued that a women was not permitted to file a complaint against her husband for adultery due to the lack of provision. Adherence of the women, and the husband’s control over it, is seen as maintaining the property interest of a husband in his wife.
- Learned counsel for the petitioner argued that the section 497 of the IPC is the violation of fundamental rights granted under Article 14, 15 and 21 of the constitution, due to their paternalistic and arbitrary in nature.
- Learned counsel for the petitioner stated that the provision for adultery is discriminative on the grounds of gender as it provides only men with the right to prosecute against the adultery which is the violation of Article 15 of the constitution.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel representing the respondent argued that allowing the individual person have sexual relations outside the marriage would destroy the institution of marriage and thus, the provision of criminalising the adultery was essential for maintaining the purity of marriage.
- It is also argued that section 497 of IPC acting as a protector for the society from this immoral conduct which outrages the institution of marriage, hence it should not be struck down.
- Learned counsel representing the respondent request the court to delete the portion which is unconstitutional but keep the provision of adultery.
- Constitution of India:
- Article 14:- Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 15(1):- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
- Article 21:- Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 15(3):- Nothing in this article shall prevent the State from making any special provision for women and children.
- Article 32:- Remedies for enforcement of rights conferred by this Part
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
- The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
- Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
- Article 228:- Transfer of certain cases to High Court If the High Court is satisified that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may
- either dispose of the case itself, or
- determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in confirmity with such judgment
- Indian Penal Code, 1860
- Section 497:- Adultery—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.
- Section 498:- Enticing or taking away or detaining with criminal intent a married woman—Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
- Section 498-A:- Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
- any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
- harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
- Criminal Procedure Code, 1973:
- Section 198:- Prosecution for offences against marriage.
- No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence: Provided that-
(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf.
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code,1860 is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(2) 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 com- mitted may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer.
(5) Any document purporting to be such an authorisation and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse the a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
The judgement was given by Chief Justice of India, Deepak Mishra starting with the statement “Proving that wife’s are not the property of the husbands and husbands are not their masters.”
The Hon’ble Court of India declared Section 497 of the IPC to be unconstitutional because it violates Articles 14, 15, and 21 of the Constitution and determined that Section 198(2) of the CrPC was unconstitutional insofar as it applied to Section 497 of the IPC. This decision overturned several earlier rulings that had upheld the criminalization of adultery.
According to the ruling, section 497 of the IPC is outdated and unconstitutional because it deprives women of their freedom, dignity, and privacy. It is claimed that the contested provision is the violation of a women’s right to life and personal liberty by endorsing the notion of marriage. By applying the penalties of the penal code to a gender-based approach to the relationship of men and women, equality is defeated. When both the spouses respect each other with respect and equality then only the respect of women for sexual liberty is achieved. According to Article 21 of the Constitution, sexual autonomy falls under the category of personal liberty.
The apex court five judge bench headed by Chief Justice Dipak Mishra said that “The beauty of the Constitution is that it includes the I, me and you”.
There were various times before the question has been arisen on the constitutional validity of section 497 of the IPC. In the case of Yusuf Abdul Aziz vs. State of Bombay, “in this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article 14 and Article 15 of the constitution, by saying a wife cannot be a culprit even as an abettor. The 3 judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). And Article 14 of the constitution is a general provision and has to be read with other Articles and gender is just classification, so by combining both it is valid.”
There were another landmark case Sowmithri Vishnu vs. Union of India, “in this case, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not provide the right for a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3 judge bench in this case also upheld the validity by stating that extending the ambit of offences should be done by the legislature and not by the courts. The offence of breaking a family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men could commit such an offence.”
In the aforementioned case, which has been brought before the Supreme Court of India, the issue of whether Section 497 of the IPC and section 198 of the CrPC are constitutionally valid has come up. Sections 497 of the IPC and section 198 of the CrPC are both constitutionally legitimate, the court determined in both cases.
In the present case of Joseph Shine vs. Union of India, it was decided that adultery is not a criminal offence. A crime is committed against society as a whole, although adultery is a personal matter. Adultery does not fit into the definition of a crime. Adultery, on the other hand, is a legal basis for divorce and might be regarded as a civil wrong.
“Husband is not the master of his wife, the fact that women should not be consider as the property of their husband, They have equal status in the society and they should be given every opportunity to put their stance forward.”
Justice Indu Malhotra said that the provision of adultery is the violation of fundamental right of a women right to privacy under Article 21 of the Constitution laid down in the case Justice K.S. Puttaswamy & Anr. vs. Union of India, “in this case Supreme court held that the right to privacy was a fundamental right derived from life and personal liberty under Article 21 and from Part 3 of the Constitution. This right is subject to reasonable restrictions.”
It was pointed out by the court that the nature of section 497 of the IPC is arbitrary.
Adultery, in my opinion, not only erodes a woman’s dignity but also constitutes gender discrimination. When society was characterized by patriarchy and paternalism, adultery was deemed to be unlawful. In the current situation, equality and liberalism have confiscated the planet. Laws that are discriminatory against women are intended to be repealed through legislative amendments.
An important milestone in Indian legal history was reached by the court when it declared this law was unconstitutional. The honourable court correctly acknowledged the values of equality and women’s dignity. It clearly shows a positive sign and it is a way towards women’s empowerment.
“The legal subordination of one gender 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 equality, admitting no power and privilege on one hand, nor disability on the other.”
 Author is 3rd semester student of Amity Law School, Lucknow.
 MYADVO, https://www.myadvo.in/blog/how-to-file-writ-petition-in-court/ (last visited Jul. 4, 2022).
 INDIA CONST. art. 14.
 INDIA CONST. art. 15, cl. 1.
 INDIA CONST. art. 21.
 INDIA CONST. art. 15, cl. 3.
 INDIA CONST. art. 32.
 INDIA CONST. art. 228.
 Indian Penal Code, 1860, §497.
 Indian Penal Code, 1860, §498.
 Indian Penal Code, 1860, §498, cl. A.
 Code of Criminal Procedure, 1973, §198, No. 2, Acts of Parliament, 1973(India).
 Sowmithri Vishnu vs. Union of India, AIR 1985 SC 1618.
 K.S. Puttaswamy (Privacy- 9J) V. Union of India, (2017) 10 SCC 1.