Citation- (2019) 3 SCC 39, AIR 2018 SC 4898
Names of judges
CJI Deepak Mishra
Justice A.M khanwilkar
Justice Indu Malhotra
Justice D.Y Chandrachud
Justice R.F Nariman
Petitioner- Joseph Shine
Respondent- Union of India
This is one of the most important landmark judgements related to Adultery in Indian Criminal Law. In this case Joseph Shine i.e. the petitioner filed a Public Interest Litigation (PIL), under article 32 of the Constitution of India, in the Supreme Court and challenged the constitutional validity of Section 497 of the Indian Penal Code, 1860 that dealt with the criminal offence of adultery and Section 198(2),
Code of Criminal Procedure 1973 stating that no person other than the husband of a person accused of adultery would be deemed to be aggrieved by the commission of an offence under Section 497 or Section 498 of the IPC.
A 5-judge bench of the Supreme Court of India held that Section 497 of IPC, and Section 198 of the CrPC, 1973,are indeed in violation of fundamental rights enshrined in Articles 14, 15, and 21 of the Constitution. This led to abolishment of a 158 year old Victorian Morality Law on Adultery.
Joseph Shine was a non- resident of Kerala living in Italy, a hotelier by profession challenged the constitutionality of the section 497 of IPC read with Section 198(2) of CRPC.
In the first of its kind petition against adultery, he contended that Section 497 of IPC is hindering the accomplishment of gender justice. According to section 497 of the IPC, adultery is an offence by a man against another man and it fails to meet with the requirement of equal treatment before the law which is guaranteed under fundamental rights in the Indian Constitution.
The main objective behind this petition was to shield Indian men from being punished for extra marital relationships by ill intended women or their husbands.
The petition was said to be triggered by the suicide of the petitioner’s close friend in Kerala who was falsely accused of a rape charge.
According to the petitioner, even if married women might have willingly participated, it will be the men who suffer (when the husband files a complaint). An adultery complaint can make a man feel very isolated. He might not be able to cope with it. This (abolishment of adultery) is a basic step, it can create further changes.
Further section 497 is a dangerous occurrence of gender unfairness and male patriotism. The conventional framework, under which section 497 was drafted, is no longer applicable in this modern and progressive society.
Whether Articles 14, 15 and 21 of the Constitution of India are violated by Section 497 of the IPC?
Does Section 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional and violative of the above mentioned articles?
The Supreme Court struck down Section 497 of the IPC as unconstitutional, being violative of Articles 14, 15 and 21 and held that Section 198(2) of the CrPC was unconstitutional to the extent that it was applicable to Section 497, IPC. This judgement struck down a colonial era law that was both outdated and ancient.
This judgement overruled several previous judgments that criminalised adultery.
It was held that this section is archaic and constitutionally invalid because it stripped a woman of her autonomy, dignity and privacy.
It was held that an exaggerated focus on aspects like connivance or consent of the husband translated to subordination of the woman.
Sexual privacy as a natural right under the Constitution was also reaffirmed by the court.
It was further held that Section 497 disregarded substantive equality because it reaffirmed the idea of women being not equal participants in a marriage, implying that they were incapable of independently consenting to a sexual act in society and a legal system that treated them as the sexual property of their husbands. Therefore, this Section was held to be in violation of Article 14.
The judges also held that Section 497 was based on gender stereotypes and in doing so, contravened the non-discrimination provision of Article 15.
Further, it was held to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy.
The Court noted that adultery still remained a civil wrong and a valid ground for divorce and although it was no longer a crime.
It stated that criminal offences are an offence against the society as a unit, while adultery falls under the umbrella of personal issues.
Treating adultery as a crime would be an interference in the personal lives of a couple.
The Court held that the State would be interfering with people’s personal lives subsequent to the act of adultery, the husband and the wife should be allowed to make a mutual decision based on their personal discretion.
Justice D. Misra observed (along with Justice A.M. Khanwilkar) that treating adultery as a crime was an intrusion into the extreme privacy of the matrimonial sphere.
This judgement added India to a growing list of countries scrapping historical legislation that put citizens’ sexual (mis)behaviour under the control of the courts.
The United Nations has also issued various calls to governments to repeal laws criminalising adultery, arguing that they are predominantly used to discriminate against women. “Provisions in penal codes often do not treat women and men equally and establish harsher rules and sanctions for women,” according to human rights expert Frances Raday.
Some, on the other hand , have criticised this decision as it paved a way for people to commit adultery without any fear.
As Justice D. Misra observed that any provision asserting that husband is the “master of wife” and treating her with inequality cannot be considered constitutional.
These provisions were indeed redundant and ancient that did not apply in modern society, abolishment of these provisions were needed to protect the fundamental rights enshrined in articles 14, 15 and 21 of the constitution of India.
This article is written by Srishti Sinha of New law college, Bharati Vidhyapeeth University.