Decriminalization of Adultery : Joseph Shine v Union of India

AUTHOR- Sankalp Khurana, Guru Nanak Dev University, Amritsar.

1. Facts of the case

In October 2017, Joseph Shine, a non-resident Keralite filed a Public Interest Litigation in the apex court under Article 32 of the constitution challenging the constitutionality of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code, 1973 on the grounds that the provision was drafted under such traditional framework that was no longer applicable in the modern society, also, the assumption that man is always the seducer was no longer relevant. It was contended that intimate relations between two parties is a private matter and not a societal one and thus criminalizing any action related to these is not reasonable. The provision that only the male adulterer was considered to be the offender and no action could be taken against the female adulterer even as an abettor was gender discriminative. It was contended that this section was arbitrary as the wife of the adulterer could neither file a complaint against her husband nor against the female adulterer. There could also be no legal action if the female adulterer was unmarried or a widow or if committed the act by the consent of her husband, this provision, it was contended, made it seem as though women were the property of their husbands. Taking in consideration that there was precedent where this provision was upheld, the matter was referred to a 5 judge constitutional bench.

2. Issues

i) Whether Section 497 of IPC which imposes criminal liabilities on the male but none on the female for taking part in the same act was in violation of article 14 and 15 of the Indian constitution?

ii) Whether Section 497 of IPC comes under the ambit of Article 15(3) providing special protection to women?

iii) Whether the criminalization of Adultery violates Article 21 of the Constitution of India as one’s private relations are covered under right to liberty and it abuses the dignity of women?

iv) Whether Section 198(2) of CrPC which does not consider the wife of adulterer male as an aggrieved party and thus gives her no power to take legal action against her husband or the female adulterer violates Article 14 and 15 of the Indian constitution?

v) Whether the provision stating that no crime is committed if Adultery is committed with the consent or connivance of the husband of the female adulterer is arbitrary and patriarchal in nature?

3. Rules

i) Constitution of India, 1949

Article 14 – Equality before law or equal protection of law.[i]

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.[ii]

Article 21 - Protection of life and personal liberty.[iii]

ii) 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.[iv]

iii) Criminal Procedure Code, 1973

Section 198(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.[v]

4. Application

While coming to a decision, the court delved upon four previous cases on this matter:-

1. Yusuf Abdul Aziz v State of Bombay[vi]

In this case, it was contended by the petitioner that Section 497 of IPC is unconstitutional on the basis that thus offence can only be committed by a man and the women was not punishable even as an abettor. This provision was said to be in violation of Article 14 and 15 of the constitution as it discriminated between people on the basis of ‘sex’. The court while answering to this argument said that clause (3) of Article 15 provided state with the power to make special laws for women and Section 497 was thus covered under such provision. It was further argued that Article 15(3) should be used only to provide benefit to women and not protect them from criminal liability. Answering to this argument, the court held that it couldn’t find any such restriction in said clause of Article 15 and thus upheld the constitutionality of Section 497 of IPC.

2. Smt. Sowmithri Vishnu v Union of India & Anr[vii]

In this case, the petitioner claimed Section 497 of IPC to be unconstitutional on the grounds that it was in violation of Article 14 of the constitution as the husband of the female adulterer could press charges against the male adulterer but the wife of the male adulterer had no such right as she could neither prosecute her husband or the female adulterer. It was further contended that the section failed to take into its ambit such situations in which a man commits adultery with an unmarried woman or a widow. The petitioner further claimed that the section stemmed from the assumption that women, like chattels, are the property of men. Answering to these arguments, the court held that there were no legal basis for these arguments as the definition of Adultery in itself only identified the male adulterer as the offender and thus there is no question of prosecution against the female adulterer and as to the inability of the section to take into ambit the situation in which adultery is committed with an unmarried woman or a widow, the court remarked, ‘an under-inclusive definition is not necessarily discriminatory.’[viii] The court also relied on the judgment in Yusuf Abdul Aziz (supra) and thus dismissed the petition.

3. V.Revathi v Union of India & Ors. [ix]

In this case, the constitutionality of Section 198 of CrPC was challenged stating that according to this section, in a case of adultery neither the husband of the disloyal wife could bring her under prosecution nor the wife of the disloyal husband could bring him under prosecution i.e. both are unable to prosecute each other in the case of adultery. Answering this argument, the court placed reliance on the Sowmithri Vishnu case (supra) and said that the sole purpose of the provision is to punish the third party which destroyed the sanctity of the matrimonial home which is generally a man (assumed to be generally be the seducer) and thus dismissed the appeal.

4. W.Kalyani v State Tr. Insp. of Police & Anr[x]

The question of constitutionality of Section 497 also arose in this case but the court held that it was clear on mere reading the case that the provision only considered the male adulterer as the offender and the husband of female adulterer as the aggrieved party and thus relied on previous judgments to uphold the constitutionality of the section.

So, in all these cases, although the courts found the law to be inapt in some arguments but rendered the responsibility of changing such situation on the legislature and upheld the constitutionality of the section.

Now, when these questions were placed before the court in Joseph Shine v UOI, the court looked upon the judgment in Shayara Bano case in which it was held that if a provision was arbitrary and against the existing moral principles of the society and the fundamental rights of the citizens then it was subject to contemplation by the court and could be struck down on the basis of unconstitutionality.

In reference to the Yusuf Abdul Aziz case the court held that in the previous judgment where it was held that Section 497 is protected under Article 15(3) of the constitution the court had failed to consider the whole Article in its entirety. The court held that the provisions of this section on mere reading seem arbitrary and they are not in accordance to providing any relief to women but to protect them from criminal liability which was in violation of Article 14 and 15. Thus the court held Section 497 of IPC to be arbitrary.

In reference to the Sowmithri case, the court upheld the contention that the provisions of Section 497 of IPC and Section 198 of CrPC made it seem like that women were property of the men to be used and subjected as they wished. The court looked upon various cases where right to life under Article 21 of the constitution was deemed to include the right to live with dignity. The court held that the sections in question abused the dignity of women due to the aforementioned reasons and thus held the provisions to be in violation of Article 21 of the constitution.

The other question in front of the court was that if Adultery should exist as a criminal offence at all. Answering to these questions, the court held that this matter is very much different from other such as domestic violence or case of dowry as these were social wrongs but criminalizing adultery would mean the state to delve into very private matters of two people which could lead to abuse of their reputation. Further answering to the arguments by the respondent the court remarked, “If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognizing the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage.” iii thus nullifying the very basis of identifying Adultery as a crime. Thus, the court held that Adultery should not be considered a crime and only be used in civil matters such as a ground for divorce.

Thus, the court ordered decriminalization of Adultery and struck down Section 497 of IPC holding that it was arbitrary and in violation of Article 14, 15 and 21 of the constitution. Also, it meant that Section 198 of CrPC would witness the same fate as it was a mere directive provision which ceased to have any value without its parent provision.

5. Conclusion

Any provision which fails to pertain to the principles of modern society and is arbitrary or in violation of any of our Fundamental Rights is subject to scrutiny and thus the decriminalization of Adultery is a veracious step. This decision reflects the position of women in the modern society and screams of their equal status among men. The act of Adultery may not necessarily mean the obliteration of a marital relationship but could also be a result of already damaged marriage. This section has long outlived its purpose and does not square with today’s morality. Thus, the judgment of the apex court in Joseph Shine v UOI is an audacious and just step which upholds the principles of Articles 14, 15 and 21 of the Constitution of India.

REFERENCES- [i] [ii] [iii] [iv] [v] [vi] [vii] [viii] [ix] [x]

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