Judges involved in the judgement – CJ. Dipak Mishra, J. A. Khanwilkar, J. R. F. Nariman, J. D. Y. Chandrachud, J. Indu Malhotra
On 27th September 2018 Joseph Shine v. Union of India caused the legalisation of adultery in India. Adultery is defined as the wilful sexual engagement with another person’s marriage partner. Adultery was criminalised under section 497 of IPC. This section procured a husband the rights to file charges against anyone who had performed adultery with his wife. This Law's integrity was challenged under Joseph Shine v. Union of India in December 2017. The Bench struck down Section 497 with Section 198 of the criminal procedure code for violating Article 14 and Article 15. Section 198 of the Criminal Procedural Code dealt with the prosecution for offences against marriage.
Under Article 32 of the Constitution of India A Writ petition was filed by Joseph Shine a Keralite against adultery. At first this case was a Public Interest Litigation against adultery. The cause of action of this case is the suicide of a close friend of the petitioner in Kerala where he was falsely accused of a rape case by a co-worker maliciously. The purpose of this case was to protect Indian men from further false accusations and malicious prosecution by grudge-bearing women. It was claimed that the provision of adultery is gender biased and violated fundamental rights Article 14 and Article 15. This matter was heard by a Supreme Court Bench of five judges. On 27th September 2018 the Supreme Court Struck downed the Sections 497 of IPC and 198 of the Criminal Procedural Code for being unconstitutional.
Whether Section 497 the provision of adultery is Unconstitutional in nature?
Whether the provision for adultery provides for gender discrimination?
Whether Private Life of an individual is infringed by section 497 of IPC?
The petition filed under article 32 of the constitution challenged Laws including Section 497 of the Indian Penal Code, 1861 along with Section 198 of the criminal procedure code, 1861 arguing it is in violation of the fundamental rights 14,15. And 21. Article 14 provides right to equality, article 15 provides right against discrimination and article 21 looks after right to life and personal liberty.
It was argued there was no provision for women to make a complaint about her adulterous husband and Section 497 of IPC saw women as an object to men as it was the husband’s discretion whether to make the act illegal or not. It was also argued adultery was voluntary activity with mutual consent and willingness, hence no one is to be held liable and that because of the gender discrimination this statute has, this violated the fundamental rights under article 14, 15 and 21. It was also argued that a person is free under law to sexually engage outside his or her marriage and that the provision violated right to privacy as it the choice of a person.
According to the respondent taking away the provision would result in harm to the institution of marriage, hence arguing that the provision was necessary to safeguard the same institution. The counsel argued that adultery offended the society’s morality and practisers should be punished and argued that Article 21 is subjected to reasonable restrictions and that this should account for a reasonable restriction. Further it was argued by the respondents that article 15(3) of the constitution gives the rights to state for making laws specially for women and children. Therefore, the argument of discrimination by this provision can be refused.
It was held that the Section 497 of the Indian Penal Code was in violation of Article 14, 15 and 21 and this section was therefore struck down along with section 198 of the Criminal Procedural code. This resulted in the overruling of many case laws that held adultery a criminal offence. Supreme court in this case identified sexual autonomy or privacy as a right. It was also held that section 497 was unconstitutional because wives were treated as subordinate to husbands as this provision provides for the husband’s decision to criminalise the matter. The court noted that adultery should remain as a civil wrong and as a ground for divorce. Crime is against society while adultery is against a person or is a personal issue.
The 160-year-old concept of adultery as a criminal offence was struck down in this case Joseph Shine v. Union of India making it an important case law, also overruling many other case laws and paving way for new cases to deliver justice. Identifying Sexual privacy as a right and moving forward by making equal opportunities and working towards gender equality and ending gender stereotypes, altogether is what makes this case an important case.
This article is written by Ivan Saleem of Christ University.