Case Analysis: Joseph Shine vs Union of India (2018)

Case title: Joseph Shine vs Union Of India

Court: Supreme Court of India

Bench: Justice Deepak Mishra, Justice R.F Nariman, Justice D.Y Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra

Petitioner: Joseph Shine

Respondent: Union of India

Citation: 2018 SC 1676

A short history of section 497 of the Indian Penal Code

In India, the provision of ‘adultery’ under the penal statutes has gained controversy from its inception. The main architecture of the Indian Penal Code, Lord Macaulay, was against the insertion of such section in the original draft and wanted to keep it out of the purview of penal statutes. According to him, such inclusion will unnecessary and unwarranted and shall be left to the society to take care for. Therefore the first proposed original draft of Indian Penal Code did not have any such provision. But it was included later on.

Section 497 of IPC states 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 offense of rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor.

This section of the IPC was heavily criticized by many prominent female activists, as it portrayed wife as a property of the husband rather than an equal partner.

A simple reading of the section implies that only a man can commit the act of adultery and only the man is punishable under this offense and the women is exempted from punishment even if she is an abettor.

Previous precedents on section 497

1. Yusuf Abdul Aziz vs The State Of Bombay (1954)

• The appellant was prosecuted under section 497 of the IPC. He contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.
• Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.

2. Sowmithri Vishnu vs Union Of India & Anr (1985)

 By this petition under Art. 32 of the Constitution, the petitioner challenges the validity of S. 497 of the Penal Code which defines the offense of ‘adultery’ and prescribes punishment for it.

• The petitioner contends that S. 497 of the Penal Code is violative of Art. 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men.
• The Supreme Court held that men were not allowed to prosecute their wives for the offense of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offense of adultery as a crime committed by a man against another man.
• The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.
• The argument was that if an unmarried man establishes an adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in sexual intercourse with a married man, she would not be held culpable for the offense of adultery, even though both disturb the sanctity of marriage.
• The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.

3. Revathi vs Union Of India & Ors (1988)

• The Supreme Court decided that the offense of adultery as defined in Section 497 is considered by the legislature as an offense against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.

• The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court.

• Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offense committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.

Facts of the case

Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offense of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

He argued that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects.

“Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said.

The law, Mr. Shine said, also “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.

Issued raised

1. Whether section 497 of the IPC (which makes adultery a criminal offense) is constitutionally valid?
2. Whether section 198(2) of the code of criminal procedure,1973 is violative of fundamental rights (14,15 and 21)?
3. Whether Section 497 is an excessive penal provision which needs to be decriminalized?

Arguments advanced by the petitioner

• Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India. When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, R.D. Shetty v. Airport Authority,(1979) 3 SCR 1014 and E.P Royappa V State Of Tamil Nadu, 1974(4) SCC 3.
• Section 497 of the IPC cannot be interpreted as a beneficial provision under Article 15(3). It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offense punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors., 2015(1) SCC 192. (Also see Frontiero v Richardson, (1973) 411 US 677).
• Since sexual privacy is an integral part of the ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15, and 21 of the Constitution of India since it excludes women from prosecuting anyone engaging in adultery.

Arguments advanced by the respondent

(Counter affidavit on behalf of the respondent)

• The writ petition under Article 32 of the constitution of India is liable to be dismissed at the very outset as section 497 of the Indian penal code,1860 supports, safeguards and protects the institution of marriage. In Sowmithri Vishnu vs Union of India, the court has supported this view.
• Striking down Section 497 of the Indian penal code, 1860 and section 198(2) of the code of criminal procedure, 1973 would tantamount to decriminalizing the offense of adultery, thereby eroding the sanctity of marriage and the fabric of the society at large.
• The government is already seized of the issue relating to gender bias. The honorable supreme court in W.Kalyani vs State Tr.Insp.Of Police & AnrThe Petitioner (2012)1SCC358 has held

The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law, as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offense of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offense.

Judgment

• A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is, therefore, ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.
• Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favor of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offense of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.
• The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”.
• The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.
• In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra):

1. legality, which postulates the existence of law;
2. need, defined in terms of a legitimate State interest, and
3. proportionality, which ensures a rational nexus between the object and the means adopted.

Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.

• To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrongdoing.
• The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the best interest of the individual.

Constitutional bench order

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offense of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Revathi (supra) and W. Kalyani (supra) hereby stand overruled.

Conclusion

The law must march in tune with the changed ideas and ideologies in a changing society. Law must take cognizance of the changing society and it must be compatible with the developing concepts and ideologies in the changing times. The need of the present has to be served with the interpretative process of law.

Equality before the law does not only signify equal access to the law, but also equal exposure to the law. This is one of the principles followed by the five-judge bench of the Supreme Court, which has struck down as unconstitutional Section 497 of the Indian Penal Code that had criminalized adultery for 158 years. But the decision’s basic rationale and it’s true spirit will require time in order to fully amalgamate into the current social concoction.

 Important; Read this – Adultery no longer a criminal offence as SC scraps Section 497 of IPC here

References

1. ssrn.com­, adultery paper
2. https://www.bbc.com/news/world-asia-india-45404927
3. Joseph Shine vs Union Of India SCC online judgment
4. Section 497 of the IPC – https://indiankanoon.org/doc/1833006/
5. Section 198(2) in The Code Of Criminal Procedure, 1973- https://indiankanoon.org/doc/289904/
6. Yusuf Abdul Aziz vs The State Of Bombay 1954 AIR 321, 1954 SCR 930- https://indiankanoon.org/doc/1343950/
7. Sowmithri Vishnu vs Union Of India & Anr 1985 AIR 1618, 1985 SCR Supl. (1) 741 – https://indiankanoon.org/doc/449750/
8. Revathi vs Union Of India & Ors 1988 AIR 835, 1988 SCR (3) 73- https://indiankanoon.org/doc/921415/
9. Acclaims- ISSN 2581-5504
10. Kalyani vs State Tr.Insp.Of Police & Anr- https://indiankanoon.org/doc/1183365563/