Citation: 2018 SC 1676
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
Joseph Shine vs. Union of India is a landmark case on decriminalized adultery in India. Adultery is derived from the Latin word adulterium that means extramarital sex which is considered unacceptable in our society. A constitution of a single act is sufficient to be called adultery because if it is repeated then it is called an affair. In Indian law, adultery is an offense under both criminal and civil law. Adultery refers to extra-marital voluntary sexual intercourse.
Under Indian law, Section 497 of the Indian penal code, 1860 defines adultery. The section 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. It is clearly mentioned in the section that the wife is not punishable for being an adulteress. This section came under the purview of court many times and also been discussed in the supreme court but nothing happened and was held validly. But after a long period of time the Supreme court on 27 September 2018 held the offense of adultery as unconstitutional in this case.
The practice of adultery is not a new topic to be discussed. It is repeated from ancient times. There has been a lot of discussion and debates related to the provision of adultery that is section 497 of the Indian penal code. The language of this section is controversial and protects women, as a woman is not considered as a bettor or adulteress and won’t be punished under the provision of section 497. This provision violates Article 14 (equality before law), Article 15(1) (Prohibition of discrimination) and Article 21(Right to life).
Certain cases highlighted the problem of adultery before Joseph Shine case –
Yusuf Abdul Aziz v/s State of Bombay (1954 AIR 321)
In this above case, the appellant was charged for the offense of adultery under section 497 of the Indian penal code. After the filing of a complaint, the appellant approached Bombay high court to determine the constitutional validity of the section, as the section violates Article 14 and 15. The appellant said that in the act of adultery a woman is equally liable, so she is equally responsible for the punishment. But the court held that the disputed section came under the purview of Article 15(3) of the constitution (special provision made for women and children). So it held constitutional.
V Revathi v. Union of India
In this case, the court held that this section does not permit either the husband of the offending wife to prosecute her and or her wife of the offending husband to prosecute her. Since neither of the spouses can bring a charge against each other for being disloyal. So in this way, it is not discriminatory in relation to sex and held constitutional.
Sowmithri Vishnu v. Union of India
In this case law, challenges were made before the court on the basis of different grounds that this section does not give the right to a woman to punish another woman with whom his husband commits adultery. It does not give any right to a wife to prosecute his husband for adultery. And also it does not cover cases where the husband had sexual intercourse with an unmarried woman. In the instance, it appears that this section is for the benefit of women, but after deep study, it seems it is not. As it is equally unfair for women. Chief Justice Chandrachud stated that by definition, the offence of adultery can be committed only by men and not by women. This case fails to deal with the actual problem, i.e., the aspects of constitutional jurisprudence which have bearing on the validity of section 497.
Facts of the case
- Joseph Shine is a non – resident Keralite filed public interest litigation under Article 32 of the constitution in the Supreme court of India.
- In his petition he challenged the constitutional validity of the offence of adultery mentioned under section 497 of Indian Penal code read with section 198(2) of code of criminal procedure.
- He stated that this section discriminated between man and woman and made only men liable for having extramarital relationships with women other than his wife. The main reason for filing PIL is to protect Indian men from being punished for having extra marital affairs by vengeful women or their husbands. Petitioner’s close friend committed suicide after a co – worker of her put malicious charges of rape on him. This section was drafted with a traditional framework which no longer exists in modern society.
- Section 497 of IPC makes adultery a criminal offence. It imposes culpability on the men who have sexual intercourse with other women, the abettor of this is punished of imprisonment up to 5 years or fine or both. Women are exempted from prosecution.
- Section 198(2) of CRPC states that the husband of the woman was deemed to be aggrieved by the offence committed under section 497 of IPC and in absence of the husband, some person who has taken care of the woman at the time of offence committed with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.
Issues of the case
1. In the absence of gender neutrality, section 497 only punishes husband only and not wife, this shows the clear distinction between man and woman.
2. According to the language of section 497, the offence of adultery is no longer an offence if the husband has given his consent. So, his wife is treated as the property of her husband.
3. Whether this section violates Article 14, 15 and 21 of the constitutional and declared unconstitutional?
On 27th September 2018, a five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalising adultery. It struck down Section 497 IPC on the grounds that it violates Articles 14, 15 and 21 of the Constitution. The Bench held that the section is an archaic and paternalistic law, which infringes upon a woman’s autonomy and dignity. The Bench also read down Section 198 of the Code of Criminal Procedure Code (CrPC). 198(2) CrPC specifies that only a husband can file charges for offences under Section 497. The bench also overruled its judgement in previous case law Sowmithri Vishnu, Vishnu Revathi, and Y Abdul Aziz.
The Bench gave all separate concurring opinions. The opinion as judges as follow-
Chief Justice Dipak Misra’s Opinion
CJI Misra wrote an opinion on behalf of Justice Khanwilkar and himself. CJI Misra struck down Section 497 IPC. He stated that Section 497 discriminates against women, treating them with indignity and inequality. He declared that legal subordination of one sex to another is wrong in itself. He concluded that Section 497 IPC violates Articles 14, 15 and 21 of the Constitution of India. He further held Section 198(2) CrPC as unconstitutional. Section 198(2) deals with the procedure for filing a complaint in relation to adultery. He stated, ‘when the substantive provision goes, the procedural provision has to pave the same path’.
Speaking on gender equality, CJI Misra declared to the Court that men could no longer declare women as her own property. He emphasised that the Court conferred several rights to women. He referred to several progressive Constitution Bench judgments which aimed to protect women’s liberties, focusing on opinion in Triple Talaq. Accordingly, he held that Section 497 violates Article 14 of the Constitution, as it is based on disproportionate gender stereotypes. He declared that the Court cannot allow provisions which treat the husband as his wife’s master to remain on the statute books. He highlighted that the Court cannot deprive women of their right to equality.
CJI Misra also dealt with the question of whether Section 497 is violative of Article 21 of the Constitution. Article 21 guarantees personal liberty and dignity. He answered the question in the affirmative, observing that a husband cannot be his wife’s monarch. He said the invidious distinctions created by Section 497 curtail the dignity of a woman and severely restrict her autonomy.
Justice Misra observed that while adultery could be a civil wrong, it cannot be a criminal offense. He held that the State could not criminalize actions occurring within the private realm of marriage. He concluded that to criminalize adultery would be a regressive step for the Supreme Court.
Opinion of Justice Rohinton Nariman
Justice Nariman delivered a separate opinion, concurring with Chief Justice Misra’s decision. He struck down Section 497 IPC on the grounds that it violates Articles 14, 15(1) and 21. He also read down Section 198(2) CrPC on the same grounds. Justice Nariman stated that the nature of the offence under Section 497 IPC is based on a paternalistic notion of a ‘woman as chattel’.
He drew a distinction between the offences of bigamy and adultery to highlight that where the former punished the person indulging in bigamy, adultery was premised on protecting the proprietary interest of a man in his wife, and therefore punished a third party.
Justice Nariman emphasised that Section 497 is an archaic law, whose purpose no longer exists. He briefly referred to the background in which Section 497 was enacted to bring forth the rationale behind its inclusion in the Penal Code. He emphasized that the fact that a wife’s extra-marital sexual acts, when done with her husband’s consent, are not a criminal offense make Section 497 manifestly arbitrary. He stated the law is premised on a feudal and paternalistic understanding of a marital relationship. He concluded that a statutory provision, which degrades the status of a woman in society, must be struck down.
Justice DY Chandrachud’s Opinion
Justice Chandrachud also goes with the majority opinion. He struck down section 497 on the grounds that it violates Articles 14, 15 and 21 of the Constitution. Accordingly, he also read down Section 198(2) CrPC. He further opined that the Section was rooted in patriarchal notions and beliefs, which resulted in centuries of female subjugation and oppression.
On the question of equality under Article 14, Justice Chandrachud held that the ability to make choices within marriage and on every aspect concerned with it was a facet of the constitutionally protected value of liberty. He said that Section 497 violated the principle of substantive equality by not providing equal rights to both the parties of the marriage. He stated that Section 497 IPC is manifestly arbitrary.
While the purpose of Section 497 IPC is to preserve the institution of marriage, it does so in a manner that discriminates against women.
He stated Section 497 assumes a conception of marriage, which inherently deprives women of autonomy, in violation of Article 15(1). He held that Section 497’s attempt to preserve the fidelity of a woman is based on the false assumption that a woman contracts away her sexual desire upon entering into marriage. He emphasised that any discrimination, which is grounded in relation to stereotypes of gender, violates Article 15(1) of the Constitution. He concluded that the gender stereotypes entrenched in Section 497 have no place in a constitutional order.
Delving into the question of privacy and the right to life under Article 21, Justice Chandrachud criticized Section 497 IPC for denying women agency, autonomy and dignity. He emphasized that Section 497 is founded on the notion that a woman, upon entering marriage, is her husband’s subject, such that her sexual autonomy and dignity are seeded to the autonomy of the husband.
He dismissed the argument that Section 497 ought to remain a criminal statute on the grounds that the State has a legitimate interest in protecting the sanctity of marriage. According to him it is the duty of the state to protect both parties’ interest in marriage. He stated that Section 497 is based on a notion of marital subordination, which is neither sound nor rationale and, further, is inconsistent with the ethos of the Constitution. He stated that the underlying assumption that the husband is the owner of the wife’s sexuality, perpetuates a deeply entrenched patriarchal order. He concluded that the provision is manifestly arbitrary and that its true intent is to ensure a man’s control over the sexuality of his wife.
Justice Indu Malhotra’s Opinion
Justice Malhotra agreed with Chief Justice Misra’s opinion. She struck down Section 497 as unconstitutional on the grounds that it violates Articles 14, 15 and 21. Justice Malhotra stated that Section 497 is based on archaic norms and, hence, violates women’s fundamental rights to equality, autonomy and dignity. She stated that years wives were invisible in the eyes of law and considered subordinate to their husbands. She highlighted that laws cannot refuse women for equal societal status.
She read down Section 198(2) CrPC ‘to the extent of its applicability’ means it should have stuck down to the extent that it was applicable to the cases of adultery.
She stated that while adultery is a civil offence, it should not be a criminal offence. She labelled adultery as morally wrong but held that this is, in itself, not sufficient to make adultery a criminal offence. She held that the State does not possess any legitimate interest in criminalising adultery. She concluded that adultery does not impact society in a negative sense to the extent that it ought to remain a criminal offence. Accordingly, she stated that Section 497 must be struck down in its entirety and Section 198(2) CrPC, to the extent that it was applicable to cases of adultery, is unconstitutional.
We live in 21 century where equality and liberalism are a part of the whole world. Adultery was practised in ancient times when a woman was considered as an object or slaves in the eyes of men. At that time a stereotype was created that women belong to home only and she is subordinate to man. Women didn’t receive equal opportunities like men, they are treated as a property of men. Because of all these reasons, laws related to adultery came in the picture. But now the time has changed, the woman is no longer subordinate to men, there is not their shadow. Adultery is a private matter of family and the court should not interfere in it. It is no longer a criminal offence. It is only considered as a civil wrong and adultery can only be a ground for divorce. In India many laws become redundant with the passage of time and adultery is one of them. The Legislature should have taken this step long ago but nevertheless our judiciary has been very efficient in filling the gaps and removing redundant laws with changing societal notions.
Student, ICFAI University, Dehradun
Avni Mehra is a passionate law student who is ready to learn and face new challenges. As an avid reader and researcher, her interest areas include business law, criminal law and family law. She is enthusiastic, knowledge seeker and a hard worker. For any clarification, suggestion or advice you can reach her at firstname.lastname@example.org