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Decriminalized adultery in India: Joseph Shine v/s Union of India

The existing dominance of one sex over the other sex must be patronized as the dignity of individual sex is important. The culture in the society deserves kindness and honour to appreciate the individuality of woman. Police is trying to cure out the inequality, favoritism or unfairness and outrage of a woman attracts the vengeance of the constitution. There has been a various disputes between interest group and lawmaking bodies which would be dealt in the case analysis.

Joseph Shine (Petitioner) Versus Union of India (Respondent)

In The Supreme Court Of India - Criminal Original Jurisdiction - Citation: Writ Petition ( criminal) no. 194 of 2017
Bench: 5 judge bench:
  1. CJI, Deepak Misra
  2. Justice, A.M Khanwikar
  3. Justice, D.Y Chandrachud
  4. Justice, Indu Malhotra
  5. Justice, R.F Nariman
Date of judgement: 27th July 2018

Highlights of the case:
  1. This was a landmark judgement which decriminalized adultery in India.
  2. The disputed provision of the Indian Penal Code was declared unconstitutional.
  3. The court should have amended the provision rather than striking it down entirely.

Facts:
In February 2016, the hon'ble president of India had called for a thorough revision of IPC. After revision it was found that from last 150 years the statute has gone with very few changes. Even now there are some provisions enacted by the British which are not applicable in present days.

In view of the same it is submitted that section 497 of the IPC was a outdated provision.
In October 2017, Joseph Shine an Italy based Indian businessman who a non- resident Keralite filed a PIL under article 32 of the constitution. The main reason of filing the petition was to shield Indian men from being punished for extra marital, relationships by vengeful women or their husband.

Petitioner's close friend in Kerala committed suicide after a woman co- worker made malicious rape charge on him. Then he filed PIL and challenging the validity of section 497 of the IPC and said it violated Article 14, 15 and 21 of the Constitution.

The case was first given to 3 judge bench and then refered to 5 judge bench headed by Chief Justice of India Deepak Misra.

Details of the disputed provision:

Section 497 of the IPC:

Whoever has sexual intercourse with a person who is or who he has a reason to believe to be a wife of another woman without the consent or connivance of that man such sexual intercourse not amount to the offence of rape is guilty of offence of adultery and shall be punished with imprisonment for 5 years or with fine or with both. Wife shall not be punished as an abettor[1].

Section 198 pf the CRPC:

This section deals with the prosecution of the offence against marriage. Under sub clause 2 only the husband of the woman is deemed to be aggrieved of an offence committed under section 497 of the IPC[2].

Issues:
  • Whether section 497 is violation of article 14,15 and 21 of the constitution of India?
  • Whether the benefit of section 497 be given to one specific gender?
  • Whether section 497 of IPC, 1860 needs to be decriminalize?

The contention of the petitioner:
The petitioner contented that section 497 of IPC violates article 14, 15(3) and 21 of the constitution because according to article 14 everyone is equal but in section 497 is not. It make inequality between men and women[3].

The petitioner said that according to article 15(3) of the constitution of India woman are given special protection but it cannot operate as a cover for exemption from on offence having penal consequences as a section which perpetuate oppression of woman is unsuitanable in law and cannot take cover under the guise of protective discrimination. The right of privacy includes at least a right to make one own decision about intimate matter.

The right to privacy under article 21 of the constitution of India would include the right of two adults to enter into a sexual relationship outside marriage[4].

The petitioner said that section 497 of the IPC is indirectly discriminatory against woman and limit the sexual freedom of a married woman but not to a married man. And this eventually gives rise to several dimension that woman is incapable of committing adultery and is a property of man rather than a person with dignity.

The petitioner contented that section 497 of the IPC is a old provision made by British according to the environment and society of that time. Because that woman are suppressed by man and many other orthodox rituals like child marriage, polygamy etc and many other restrictions are also imposed on woman by the society and men.

So, this liberty is given to woman by the Britishers but at present it is not applicable a/c to present day sometimes woman are also caught guilty for seducing men because they know that they are not going to punished.

The contention of the respondent:
The respondent contented that section 497 of IPC violates the right of married parties to live a good and peaceful marital life.it is also very problematic for the mental health of the victim.
The respondent further contended that it gives tension and frustration which is against the right to live a good life under article 21 of India. Article 21 is not absolute right and is conditional to public decency morality and order apart from some other exception.

Decision:
The decision is given by 5 judge bench which is headed by chief justice of India Deepak Misra. the court unanimously struck down section 497 of the IPC.

The bench produced 4 concurring decision:
  • CJI Deepak Misra

    Husband is neither the master of the wife nor does he have legal sovereignity over her. He observed that “any system treating a woman with indignity invites the wrath of the constitution.

  • Justice Nariman said that:

    Under adultery law man is convicted but women is not so clearly it goes against article 14 and 15(3) on the ground of sex.
    The ancient notion that man is being the perpetrator and woman bring the victim is no longer good. Due to the statement of justice Nariman it bring a gender equality in the society under which a man can also file a case of rape against woman.

  • Justice DY Chandrachud said that:

    When husband and wife are married then wife is not give up her sexual freedom she can also explore sexuality outside the marriage as well since at the time of marriage the wife does not lose her freedom her control over her sexuality and section 497 of the IPC deprives the woman of the sexuality of her sexual freedom. It does against the very concept of privacy and dignity under article 21 of the constitution of India.

  • Justice Indu Malhotra said that

    She is the only woman judgement of the bench said that adultery can be a moral wrong but this is a case to be decided by husband and wife together so, it is best that it can be a civil wrong. It can't be a crime.
After all the opinion and statement of the judges. The SC held that section 497 is decriminalize but sec 497 of the IPC is still used as a ground for divorce.

Judgement:
The supreme court after hearing the contention and after seeing each and every aspect of the society gives a landmark judgement and held section 497 of the IPC, 1860 unconstitutional but it is not fully strick down from the statute. It is amended and now section 497 of IPC is only used for the ground of divorce.

This was done because of manifest arbitrariness:

  • Under article 14 of the constitution of India it also gives us arbitrary and under section 497 it only punish men not women so it is manifest arbitrary.
  • Section 497 of the IPC treats woman as a personal property of a woman which goes beyond the dignity of a woman. So it is unconstitutional.

Related cases:
  1. Yusuf Abdul Aziz v. state of bombay[5]

    in this case question raised that it goes against the fundamental right adultery law in this case infringe the fundamental right because only men are prosecuted for that not women.
    The supreme court held that no it was not the case because there is a special provision for the upliftment and betterment of woman under article 15(3) of the Constitution of India.

  2. Revati v. UOI[6]

    The supreme court held that not including women in prosecution of adultery cases promoted social good. It offered the couple a chance to makeup and to maintain the sanity of marriage. The supreme court also observed that adultery law act as a shield rather than a sword.
The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of section 497 of the IPC to men and it was also said that section 497 of the IPC should make gender neutral.

Ratio Decendi:

The ratio decendi behind the judgement is to recognize the conceptual equality of woman is entitled to him. Because woman is not a thing she is a living being a human. So she cannot be treated as a property of man. The section 497 o the IPC also create gender inequality and court also think that adultery is a matter of two people husband and wife it does not effect the public. It is a private matter. So, the cout declared section 497 of the IPC without any hesitation unconstitutional and said it is a civil matter only used as a ground of divorce.

Critical Analysis:
After analysing the case and contention . I found the judgement put forward to declare section 497 of the IPC, 1860 unconstitutional is good for the society and the woman. The provision is being discriminative in two ways:
  1. It does not give the right to woman to prosecute an adulterous husband.
  2. It does not punish a woman for adultery even as a abettor.
The adultery law became a means to exploit a married woman. It was a means to question and control the sexuality of woman.

It has played a important role to protect the woman from exploitation by consolidating the notions:
  1. Regressive society

    Section 497 of the IPC is made by Britishers 150 year ago so this law is not applicable according to the change in the society.

  2. Means of exploitation

    Section 497 of the IPC becomes the means of exploitation by domestic violence. It is a question mark over the sexuality of woman while leads man to use violence against woman whenever the woman transgressed the so called male notion of obedient wife.

  3. Deprives married woman from her right

    However, the conclusion is that it is very important to understand the sprit of the relationship. The obligation of the legislation which comes into the role is to implement proper interpretation of every enactment.

End-Notes:
  1. The Indian Penal Code, 1860 Act (No 45 of 1860).
  2. The Criminal Procedure Code, 1973 Act (2 of 1974).
  3. Yusuf Aziz v. state of Bombay, available at “ 5th voice.news” visited date July 11,2020.
  4. Shafin jahan v. Ashokan K.M & orss., “ lawtimesjournal.in” visited date July 12,2020.
  5. 1954 AIR 31 Joseph shine v. U.O.I (Adultery judgement) available at lawaudiance.com visited date July 14th , 2020.
  6. 1988 AIR 835 adultery no more criminal offence in India available at iasscore.in, visited date July 14, 2020.

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