ADULTERY: A CASE STUDY

CASE NAME- Joseph Shine vs Union of India

CITATION- AIR 2018 SC 4898

HON’BLE JUDGES- Dipak Misra (CJI)

Rohinton Fali Nariman

A.M. Khanwilkar

D.Y. Chandrachud

Indu Malhotra

PETITIONER NAME- Joseph Shine

RESPONDENT NAME- Union of India

DATE OF DECISION- 27th September 2018



INTRODUCTION

Patriarchy and male chauvinism have been one of the most evil elements of our society which have bred along generation to generation, and adultery has been a part of it all along. Adultery is an offence which makes a man liable who has had sexual relations with someone’s wife. If the husband approves or gives his affirmation to the act, it is no longer an offence. There are no rights for a woman, in case her husband commits adultery. This law is identified as against our constitutional rights and principles i.e., equality before law, right to live with dignity, gender equality, etc. Adultery has been struck down in as many as sixty countries like Japan, South Africa, South Korea, etc. The judgement of Joseph Shine vs UOI has created history by striking down 158-year-old law which has brought relevance in society and change in moral and social conditions.



FACTS OF THE CASE

A writ petition was filed under Article 32 of the Indian Constitution by Joseph Shine challenging the constitutionality of section 497 of IPC, 1860 and section 198 of CrPC, 1973, being violative of Article 14, 15, and 21 of The Indian Constitution, 1949. This was the first Public Interest Litigation (PIL) filed against adultery in India. The petitioner said the provisions were discriminatory and arbitrary in nature on the basis of gender. A constitutional 5-judge bench was set up to hear the filed petition.


ISSUES RAISED

Whether section 497 of IPC, 1860 and section 198 of CrPC, 1973 violates Article 14, 15, and 21 of the Indian Constitution?



CONTENTIONS

Petitioner-

● The counsel argued that adultery is an offence that criminalises it on the classification of coital intercourse alone which is not rational. The consent of the wife is immaterial. Therefore, it is violative of Article 14 of the Indian Constitution which talks about equality before law.

● The petitioner said that the section is based on the notion that a woman is a property of a husband. Mere consent of the husband decriminalises adultery.

● The petitioner claimed that the provision of adultery is gender biassed because only the man has a right to prosecute, and the wife does not have the right to do it. This violates Article 15 of the Indian Constitution i.e., prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

● The petitioner contended that the provision is also violative of Article 21 of the Indian Constitution that talks about protection of life and personal liberty. Adultery undermines the dignity of a woman by not respecting her sexual autonomy and self-determination.

● The petitioner requested that section 497 of IPC, 1860 with section 198 of CrPC, 1973 must be struck down.


Respondent-

● The respondents contended that adultery breaks the whole family relations and deterrence should be there to protect the sacred institution of marriage.

● The respondents claimed that adultery is committed by an outsider who has full knowledge and intention to destroy the sacred and holy relation of marriage. It affects the spouse, children, and society as a whole.

● The discrimination is protected under Article 15(3) of the Indian Constitution that gives the right to the state to make special laws for women and children.

● The respondents requested the court to delete the unconstitutional portion but retain the provision of adultery.


OBITER DICTA

The offence relies on the notion of women being a property of the husband. Adultery is taken into account to be a theft of his property because it says consent or connivance by the husband wouldn’t make it an offence.



JUDGEMENT

● After hearing both sides, the then Chief Justice of India, Deepak Misra, said that the provision of adultery, i.e., section 497 of the Indian Penal Code, 1860 was unconstitutional and hence, should be struck down.

● The court held that the provision was gender biased and violated Article 14 and Article 15 of the Indian Constitution.

● The court also struck down section 198(2) of the Criminal Procedure Code, 1973 which allowed the husband to bring charges against the man with whom the wife was involved.

● The court also held that it is essential for one of the spouses to commit suicide in order to call the act of adultery as a criminal offence. In that case, the other spouse would be held liable for abetment of suicide under section 306 of the Indian Penal Code, 1860.



● CJI Deepak Misra, while pronouncing the judgement said that any provision asserting the husband as the master of his wife and treating her with inequality is unconstitutional. He also said that if there is absence of consent from the women side, then the act amounts to rape and if consent is present from both the side then it doesn’t.

● Justice Indu Malhotra observed that section 497 of the IPC, 1860 institutionalised discrimination on the basis of gender and therefore should be struck down.

● The Supreme Court on the question of passing a judgement for a new, gender-neutral adultery offence, remarked that subjecting interpersonal relationships to the severity of criminal law would amount to an intrusion into the right to privacy guaranteed under Article 21 of the Indian Constitution.[1]



CONCLUSION

The debate on the topic, adultery is ample and unstoppable. The court while pronouncing the judgement and stating this law to be unconstitutional took a landmark step in the legal history of India. There’s a desire to eliminate and construct new legislative reforms that are unconstitutional and discriminative in nature. Adultery not only was discriminatory for women, but it was also demeaning and degrading the dignity of them. Adultery was declared as an offence when our society’s mindset was deeply rooted in patriarchy and misogyny and when women didn’t have an individual identity to live with. Adultery should have been decriminalised long back, but nevertheless our judiciary has been very efficient in filling the gaps and removing redundant laws with changing societal notions.

[1]https://blog.ipleaders.in/supreme-court-struck-adultery-law-section-497-ipc-justified/#The_Supreme_Courts_judgement_in_the_present_case



This article is written by Mansi Verma of Manipal University Jaipur.

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