JOSEPH SHINE v. UNION OF INDIA

JOSEPH SHINE v. UNION OF INDIA

2018 SC 1676

Court: Supreme Court of India

Date: 27th September, 2018

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

Parties:

Petitioner: Joseph Shine

Respondent: Union of India

INTRODUCTION

In Indian Penal Code, Adultery is defined under section 497 IPC, which states that whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be the wife of another man, without the consent or connivance of that man, will be guilty of adultery. Such offence does not amount to rape but comes under Adultery which is punishable with imprisonment of either descriptive term which may extend to the five years or with fine or both. In case of adultery, the wife shall not be punishable as abettor. The constitutional validity of this section had come under the purview of the courts several times however, the Supreme Court every time held it valid. On 27th September 2018, the Supreme court brought down the 158-year-old Victorian Morality law on adultery in the case of Joseph Shine v. Union of India. This case raised an important question that whether adultery is to be dealt under crime or not. The court was in the opinion that adultery should not be criminalized because if treated as a crime, there would be immense intrusion into the extreme privacy of matrimonial sphere. Therefore, it should be left as a ground for divorce.

Even before this verdict, the question on the constitutional validity of section 497 IPC and section 198 CrPC has come in front of Supreme Court. The legal spat on this issue began with the case of Yusuf Abdul Aziz v. State of Bombay (1954 AIR 321), where husband was accused of adultery. In this case, when the complaint was filed, the husband approached Bombay High Court under Article 228 of the constitution to check the constitutional validity of section 497 IPC. However, the case was decided against the husband. Although this case raised a question on the constitutional validity of the court stating that section 497 IPC is violative of Article 14 of the constitution because of the restriction on treating a wife as an abettor. However, the court held that this provision was safeguarded by Article 15(3) of the constitution of India which provides for special provisions for women and children. Thus, the history of adultery laws clearly depicts that this law is clearly in favour of husband by giving him ownership over the sexual relationship of his wife.

This law provided that any person who is engaged in sexual relation with the wife of another man and the husband of that women gives his consent for the same then such an act won’t be charged for adultery. Therefore, this section has never been in favour of women as it clearly denotes that that how women are considered as an object in the hands of their husbands.

Another case where this section was challenge was in the case of case Sowmithri Vishnu v. Union of India (1985 AIR 1618). The challenges were made on the following basis – (1) Section 497 does not give any right to wife to punish a woman with whom her husband has committed adultery (2) This section does not give any right to the wife to prosecute her husband for the act of adultery, and (3) This section does not cover cases where husband had sexual relations with an unmarried woman. However, in this case the then 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 IPC. In another case, V Revathi v. Union of India (1988 AIR 835), the court held that this section does not permit either the husband of the offending wife to prosecute her nor the wife of the offending husband for being disloyal to her. Therefore, since neither of the spouses can bring a charge against their disloyal nor offending spouses. Hence, this section does not discriminate on the basis of sex.

Now, with the decision of Supreme Court in Joseph Shine Case, adultery has become legal. The institution of marriage is based upon the trust between both the parties, i.e., husband and wife. Therefore, Hon’ble Supreme Court of India did not interfere in the personal and moral lives of the people. By the 2018 verdict, adultery is now considered as a civil wrong and the remedy for the act of adultery is only divorce.

FACTS

• Public interest litigation was filed under article 32 of the constitution by Joseph Shine, a non-resident Keralite. The petition challenged the constitutional validity of the offence of adultery under section 497 IPC read with section 198(2) of the CrPC.
• The rationale behind filing this petition was to protect Indian men from being punished for extra-marital relationship by vindictive women or their husbands.
• The PIL, in this case, was filed as petitioner’s close friend was maliciously accused of rape charges by a women co-worker and who thereafter committed suicide. The case brought to light the shocking occurrence of sexuality unfairness, authoritative imperialism and male patriotism.
• The traditional framework, under which section 497 IPC was drafted, is no longer applicable in modern society. The court reviewed the correctness of precedents which had upheld the constitutional validity of section 497 IPC in the past – Yusuf Abdul Aziz v. State of Bombay, Sowmithri Vishnu v. Union of India and V Revathi v. Union of India. In response, the Centre filed an affidavit in the month of July 2018, arguing that decriminalising adultery would impact the sanctity of marriage. The five-judge bench started hearing the matter from August 2018 onwards and finally in September 2018 diluted the provision of adultery.

ISSUES

• Whether the section making adultery a criminal offence (Section 497 IPC) is constitutionally valid?
• Whether section 198(2) CrPC is violative of fundamental rights Article 14, 15 and 21 given under the constitution?
• Whether Section 497 IPC is an excessive penal provision which needs to be decriminalized?

JUDGMENT

• A five-judge bench on 27th September 2018, stuck down section 497 IPC, thereby decriminalizing adultery. This section was stuck down on the grounds that it was violative of article 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). Section 198(2) CrPC specifies that only a husband can file charges for offences under Section 497. The bench overruled the previous judgements in Yusuf Abdul Aziz v. State of Bombay, Sowmithri Vishnu v. Union of India and V Revathi v. Union of India, where constitutional validity of section 497 IPC was upheld.
• Former CJI Dipak Mishra wrote an opinion on behalf of Justice Khanwilkar and himself. He stuck down section 497 IPC and stated that this section 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. 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’. Moreover, he emphasised on gender equality and stated that the Court could no longer allow women to be treated as the property of men. He referred to several progressive Constitution Bench judgments which aimed to protect women’s liberties. Accordingly, he held that Section 497 violates Article 14 of the Constitution, stating it is manifestly arbitrary and creates excessive and disproportionate distinctions based on 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 emphasised that the Court cannot deprive women of their right to equality. Further, he 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 opined that adultery cannot be a crime and remain consistent with principles of criminal liability established in previous Supreme Court cases, such as Central Inland Water Transport corporation Ltd. v.Brojo Nath Ganguly&Anr (1986 AIR 1571) and Common Cause (A Registered Society) v. Union of India (Case-Number- WP (C) 215/2005). He concluded that to criminalize adultery would be a regressive step for the Supreme Court, which has repeatedly spoken of the transformative nature of the Constitution.
• Justice Nariman delivered a separate opinion, concurring with Chief Justice Mishra’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. Similarly, Justice Chandrachud also concurred with the majority opinion. He found that Section 497 IPC ought to be struck down on the grounds that it violates the Constitution. He held 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.
• Justice Malhotra concurred with Chief Justice Mishra’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, ‘[the] times when wives were invisible to the law and subordinate to their husbands had long passed.’ She emphasised that laws cannot deny women equal societal status. She stated that while adultery is a civil offense, it should not be a criminal offense. She labelled adultery as morally wrong, but held that this is, in itself, not sufficient to make adultery a criminal offense. She held that the State does not have a legitimate interest in criminalising adultery. She concluded that adultery does not negatively impact society to the extent that it ought to remain a criminal offense. 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.
• The bench held that 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. The constitutional bench gave the following order – (1) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution (2) Section 198(2) of the CrPC which contains the procedure for prosecution under Chapter XX of the IPC shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

CONCLUSION

The judgement has put forward a good initiative as it stuck down the provisions based on discriminative classification against women. It is necessary that law marches in tune with changing ideologies in society. The section 497 IPC and Section 198(2) of CrPC are discriminative in two ways, firstly, women are not given the right to prosecute an adulterous man and secondly, it does not punish a woman in adultery not even as an abettor. Moreover, this judgment has put into practice the idea of transformative justice.

However, this judgment is a deviation in the realm of adultery law as it makes this practice non-punishable. It is criticized that the judgement leaves the spouses with no remedy in case his or her partner indulges in adultery. Further, the judgement is also silent about social institutions like marriage and rights of children born out of such relationships. Therefore, it can be concluded that the basic rationale and true spirit of this judgement will require time to fully amalgamate into the current social scenario.