Joseph Shine v. Union of India

Kaustubh Chourey

Bench – Justice Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman.
A writ petition was filed in the Supreme Court of India under Article 32 of the Constitution challenging the constitutional validity of section 497 of Indian Penal Code, 1860 read with section 198 of Criminal Procedure Code, 1973. Joseph Shine claimed that article 497 of IPC and section 198 of CrPC are arbitrary and discriminatory on the grounds of gender.
Joseph Shine’s close friend in Kerala committed suicide after a woman made a malicious rape charge on him. He claimed that this article demolishes the dignity of women and is an egregious occurrence of sexuality, unfairness, authoritative imperialism and male patriotism. Constitutional Bench of five judges stepped up to hear the petition. The section 497 of IPC defines Adultery as “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 a case, the wife shall not be punishable as an abettor.” As it is known that the Indian Penal Code was enacted in 1860, and some articles of IPC are purposeless in today’s India.
In 18th and 19th century India was a male dominant society, the women had no rights. Every decision of a daughter was taken by her father and every decision of wives were taken by the husband. But today the women of our country are educated and share equal rights. The traditional framework in which article 497 was drafted is no longer applicable in modern society. Thus, the Honorable Supreme Court of India struck down 158-year-old provision on September 27th 2018. But the story is a little old and long before this judgement. The very first time when this article was questioned was in 1951 right after when the Constitution of India was enacted.
Yusuf Abdul Aziz V/s State of Bombay
In this case, it was argued that the two articles, article 14 and 15 have been violated by section 497 of IPC. Supreme Court upheld the validity of the sections by pointing out that neither man nor a woman can prosecute their disloyal partner. It is only the ‘outsider’ to the relationship who can be prosecuted and that too by the distressed husband only.

Sowmithri Vishnu V/s Union of India
This judgment retained the offence of adultery as an offence committed by a man against another man. The Supreme Court conjointly rejected the argument that unmarried women should be brought under the extent of the adultery law.

V. Revathi V/s Union of India
The Supreme Court during this case observed that article 427 is “shield rather than sword”. The judge ruled that the existing adultery law does not contradict any constitutional rights by restricting the ambit of section 497 to men.
This provision was also hit by the ratio laid down in – Justice K.S Puttaswamy V/s Union of India:
In both of them, it was ruled out that sexual intercourse is an integral part of ‘Right to Privacy’ as section 198 of CrPC violates article 14, 15 and 21 of the constitution of India.

1. Is section 497 of the Indian Penal Code unconstitutional?
2. Petitioner wanted certain problems with the section to be addressed –
• Section 497 provides that only man has to be punished in case of adultery but no punishment is advised for the woman.
• There is no legal provision under which a woman can file a complaint of adultery against her husband.
• According to the article, if the husband gives his consent to his wife to perform adultery then such an act is not adultery. Here women are treated as an object.

The Supreme Court had observed that article 497 of IPC is based on certain ‘Societal Presumptions.’
The court observed that this law was drafted a long time ago and it is not applicable in today’s world. In four different judgements, the court struck down the law and declared that the husband cannot be the master of his wife. Wife and husband both are considered equal in the court of law and any one of them cannot enjoy any special privilege. The judgement further held that Article 497 of the Indian Penal Code is archaic and is constitutionally invalid. The court observed that the article is very old and it violates article 14 which talks about Right to Equality and Right to Privacy under Article 21 of the Indian Constitution. The court said that article 497 is arbitrary. The Supreme Court also held that adultery is no longer a criminal offence.
Still, adultery can be a reason for divorce, which means adultery is a civil wrong, not a criminal offence. From now the remedy of adultery is not five years in prison or fine or both but both husband and wife can ask for divorce on the grounds of adultery. Hence, adultery can take you to court, not to jail.

Section 497 of Indian Penal Code defines adultery, in simple words if a man has sexual intercourse with a married woman with the consent of woman but without the consent of her husband than the man would be considered guilty of adultery.
The problem with this law was it treated the woman as the victim of the offence and as ‘property’ of husband and it was also not an offence if a man had sexual intercourse with the woman after getting her husband (if present) and her consent. In the judgement, the Supreme Court held that the law is unconstitutional and is invalid as now adultery can be ground to divorce but it’s no more a criminal offence attracting up to 5 years of jail, thus, now adultery is a civil wrong.
Although adultery is no more a criminal offence if the spouse commits suicide because of partners adultery then it could be treated as an abetment to suicide. The marriage in India is considered very sacred and pure. Within marriage, partners make an oral agreement to be with each other for their entire life, during this both the partners should treat each other equally and the state should also treat both of them equally.
As Justice Dipak Mishra said, “making adultery a crime is retrograde and would mean punishing people and would mean punishing unhappy people, thus any law which dents individual dignity and equity of a women in a civilized society invites the wrath of the constitution”.

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