Joseph Shine v. UOI

Adultery in India was based on the notion of patriarchy. This offense makes a man criminally liable who has sexual relations with a woman who is the actual wife of another man. And if a husband consents to or connives at such an act, it will no longer be adultery. There is no right for a woman in case her husband commits adultery.

The word itself is forbidden in Indian culture. And people hardly talk about it openly. It was proscribed even to discuss adultery in public places, but with the increase in the means of communication and media, these things are no longer considered taboo in India, especially in metropolitan towns where adulterous relationships are on the rise, marriages are falling apart, and homes are breaking due to these reasons.

Adultery in India does not treat women as a culprit but as a victim who has been seduced by a man to do such an act. This law is violative of our constitutional principles, i.e., equality, non-discrimination, the right to live with dignity, and so on. Adultery has been struck down as an offense in as many as 60 countries, including South Korea, South Africa, Uganda, Japan, etc., for being gender-discriminative and violating the right to privacy. Even Lord Macaulay, the creator of the Indian Penal Code.

Objected to its presence as the offense in the code rather suggested that it should be better left as a civil wrong. The law evolves with the times, and many recent judgments have increased the ambit of fundamental rights in conformity with the changing societal values and increasing individual liberty. This judgment joins them in creating history by striking down a 158-year-old law that has lost its relevance with changing social and moral conditions.

Perhaps every educated person knows that adultery is a sexual liaison that somehow infringes on a marital relationship. The true meaning of the word lies in your own perception of an association and that of a bonding. ^[1] The relationship of marriage was and is still the most sacred correlation in all the senses, and if someone commits adultery, he/she renounces the marriage vows and breaches the trust and love on which the marriage is based.

MEANING AND DEFINITION OF ADULTERY:

Adultery is known as infidelity, philandry, extra-marital affair, or physical betrayal in marriage. Adultery is different from rape, as the adultery is voluntary while the rape is not. The consent of both individuals for a physical relationship is a must for the adultery to exist. Earlier, the term was associated with married women only who got involved in adulterous acts with someone who was not her husband, but now the term is applied to married men as well, and if either one is married.

Adultery can be defined as “an intended sexual contact between two people of opposite gender who are not married to each other under law.” ^[2]

Black’s Law Dictionary defines adultery as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” ^[3]

III. TYPES OF ADULTERY:

There are two types of adultery:

1. Single Adultery—If the relationship is between a married person and an unmarried person.
2. Double Adultery—If both partners involved are married to someone else.

The Bible considers adultery an immoral act and an offense. Adultery is an unrighteous act that affects the faith and lives of people and causes a lot of misery for the sufferers.

THE STATUTORY PROVISIONS:

Adultery is defined in Section 497 of IPC, 1860, and Section 84 of BNSS, 2023.

The procedure for prosecution of an offender is contained in Section 198 of the CrPC, 1973, and Section 219 of BNSS, 2023.

FACTS OF THE CASE:

A writ petition was filed under Article 32^[4] by a non-resident of Kerala named Joseph Shrine, who raised questions on the constitutionality of Section 497 of the IPC read with Section 198 of the CrPC., being violative of Articles 14, 15, and 21 of the Constitution of India. This was the first public interest litigation filed against the adultery. The petitioner claimed that the provisions for the adultery were arbitrary and discriminatory based on the gender. The petitioner claimed that such a law.

Demolishes the dignity of a woman. The question arose whether adultery should be dealt with under crime or not. The court believed adultery does not fit in the concept of crime, that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.

Now adultery has become legal, but it is still not ethical with the societal views, as the institution of marriage is based upon the trust between both parties, i.e., husband and wife. Therefore, the honorable Supreme Court of India did not interfere in the personal and moral lives of the people. ^[5] Currently, adultery is only considered a civil wrong, and the remedy for the act of adultery is divorce.

ARGUMENTS:

By Petitioner.

1. The counsel for the petitioner contended that the provision criminalizes adultery on a classification based on sex alone, which has no rational nexus to the object to be achieved; the consent of the wife is immaterial. Hence, a violation of Article 14 of the constitution.
2. The petitioner contended that the provision is based on the notion that a woman is property of the husband. The provision says if the husband gives consent or connives, then adultery is not committed.
3. The provision for adultery is discriminatory on the basis of gender, as it provides only men with the right to prosecute against adultery, which is a violation of Article 15.
4. The petitioner contended that the provision is unconstitutional as it determines the dignity of a woman by not respecting her sexual autonomy and self-determination. It is violative of Article 21.
5. Section 497 of the IPC and Section 198 of the CrPC must be struck down.

By Respondent.

1. The respondents contended that adultery is an offense that breaks family relations, and deterrence should be there to protect the institution of marriage.
2. The respondents argued that the adultery affects the spouse, children, and society as a whole. It is an offense committed by an outsider with full knowledge to destroy the sanctity of marriage.
3. The discrimination by the provision is saved by article 15(3), which provides the state the right to make special laws for women and children.

They requested the code to delete the portion, deeming it unconstitutional, but retained the provision.

PREVIOUS JUDGMENTS RELATED TO ADULTERY

Yusuf Abdul Aziz v. State of Bombay^[6]

In this case, the constitutionality of section 497 was challenged on the grounds that it violates articles 14 and 15 by saying a wife cannot be a culprit even as an abettor. The 3-judge bench upheld the validity of the set provision as it’s a special provision created for women and is saved by article 15(3). And Article 14 is a general provision and has to be read with other articles, and sex is just a classification, so by combining both, it is valid.

Sowmithri Vishnu v. Union of India & Anr.^[7]

In this case, a petition was filed under Article 32 challenging the validity of section 497 of IPC. The challenge was based on the fact that the set provision does not provide the right for a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3-judge bench in this case also upheld the validity by stating that extending the ambit of the offense should be done by the legislature and not by courts. The offense of breaking a family is no smaller than breaking a house, so the punishment is justified. The code accepted that only men can commit such an offense.

V. Revathi v. Union of India.^[8]

In this case, the court upheld the constitutional validity of section 497 read with section 198 of the CrPC by stating that this provision disables both husband and wife from punishing each other for adultery. Hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus it is a reverse discrimination in “favour” of her rather than against her.

W Kalyani v. State Through Inspector Of Police and Another^[9]

In this case, the court noted that section 497 IPC was under criticism for certain quarters for displaying a strong gender bias because it made the position of a married woman almost a property of her husband. The provision also came under criticism on the ground that only a man could be proceeded against and punished for adultery and the wife could not be punished even as an abettor. The issue of constitutional validity of Section 497 of IPC and Section 198 of CrPC did not arise in the concerned case.

VIII. ISSUES RAISED:

1. Whether the provision for adultery is arbitrary and discriminatory under Article 14?
2. Whether the provisions for adultery encourages the stereotypes of women being the property of men and discriminates on gender bias under Article 15?
3. Whether the dignity of a women is compromised by denial of her sexual autonomy and right to Self-determination?
4. Whether criminalizing adultery is intervention by law in the private realm of an individual

COURT OBSERVATIONS:

Issue 1: The test of manifest arbitrariness should be applied to validate the legislation or any sub-legislation. Any law found arbitrary will be struck down.

The following 2 judgments were cited.

• Shayara Bano v. Union of India and others^[10]
• P. Royappa v. State of Tamil Nadu^[11]
• The classification is found to be arbitrary in the sense that it treats only the husband as an aggrieved person given the right to prosecute for the offense and no such right is provided to the wife. The provision is not based on the equality.
• The offense is based on the notion of women being a property of husband and adultery is considered to be a theft of his property because it says consent or connivance by the husband would not make it an offense.
• The provision does not treat the wife as an offender and punishes only the third party.

Such classification is arbitrary and discriminatory has no relevance in present times where women have their own identity and stand equal to men in every aspect of life. This provision clearly violates Article 14.

Issue 2: The court cited the following judgments

• Government of Andhra Pradesh v. P. B. Vijayakumar^[12]
• Independent Thought v. Union Of India^[13]
• The provision discriminates between a married man and a married woman to her detriment on the ground of sex.
• This provision is based on the stereotype that a man has control over his wife’s sexuality and she is the property. It perpetuates the notion that women are passive and incapable of exercising their sexual freedom.
• Section 497 protects women from being punished as abettors. Its enunciated that this provision is beneficial for women, which is served by Article 15(3). Article 15(3) was inserted to protect the women, from patriarchy and pull them out of suppression. This article was aimed to bring them equal to men. But \Section 497 is not protective discrimination but grounded in patriarchy and paternalism.

Thus the said provision violates Article 15(1) of the constitution because it is discriminatory on the basis of gender and perpetuating of controlling a wife’s sexual autonomy

Issue 3: The dignity of an individual and sexual privacy is protected by the constitution under Article 21. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decision on vital matters of life.

The following judgments were cited:

• Puttaswamy and Anr. v. Union Of India and Others^[14]
• Common Cause v. Union Of India and Ors^[15]
• The provisions allows adultery on the husband’s consent/ connivance, which gives a man control over her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality.
• When the penal code was drafted the societal thinking regarding women was backward and she was treated as a chattel but after 158 years the status of women is equal to that of men. Her dignity is of utmost importance which cannot be undermined by a provision which perpetuates such gender stereotypes.
• Treating women as victims also demeans her individuality and questions her identity without her husband.

The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality provided under Article 21.

Issue 4:

• A crime is defined as an offence which affects society as a whole. Adultery, on the other hand, is an offence which tantamount to entering into the private realm.
• Adultery may be committed by two consenting adults making it a victimless crime.
• The provisions aims to protect the sanctity of marriage but we have to admit that because of a pre-existing disruption of marital tie adultery is committed.
• The other offences related to matrimonial realms such as section 306, 498A, 304-B, $94 or any violation of protection of women from Domestic Violence Act, 2005 or violation of Section 125 CrPC are related to the extinction of the life of a married woman and punishes her husband and relatives.
• In adultery, a third party is punished for a criminal offence with a maximum 5 years imprisonment. This is not required in the opinion of the court.
• This provision makes a husband an aggrieved person and a woman a victim. Even if the law changes and provides equal rights to women against adultery, it is totally a private matter.
• Adultery is better left as a ground for divorce and not a crime.

Section 497 of IPC is struck down and adultery can be ground for any civil wrong including dissolution of marriage.

1. LAW COMMISSION RECOMMENDATIONS:

1. In the 42^nd Law Commission report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5years to 2years. It was not given effect.
2. In the 152^nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman but it was not accepted.
3. In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provisions as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery.’ The same is pending for consideration.

1. JUDGMENT:

Justice Dipak Misra opined that “Women have to be registered as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, i.e., in thinking, participating and leadership.”

Section 497 of IPC is arbitrary. In the whole of the judgment. As husband can give his consent to allow his wife with some other person. Hence, this section preserves the proprietary rights of the husband that he has over his wife. This Section does not protect the “sanctity of marriage”. This Section preserves the proprietary rights of the husband that he has over his wife. This section does not allow the wife to file a petition against her husband. This Section does not contain any provisions which deals with a married man having an affair with unmarried women.

As a result of all the discussion it was declared that,

• Section 497 of IPC is struck down as unconstitutional being violative of Article 14, 15 & 21 of the constitutional.
• Section 198(2) of CrPC, which contains the procedure for prosecution under Chapter XIX of the IPC shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

In the present case, Joseph Shrine v. Union Of India^[16] the Supreme Court led down certain guidelines regarding the provisions of adultery. The Court held that Section 497 of IPC is violative of Article 14, 19 & 21. Through now adultery is decriminalised and considered as a ground for divorce, it must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not to be criminal, and a remedy may be found in civil law, where adultery already has a place. Such an approach is also in conformity with the right to privacy and does not require the state to expand it resources.

Author:– Manushree M B, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

^[1]1 Adultery Divorce available at https://www.advocatekhoj.com/library/lawareas/divadultery/index.php?Title=Adultery%20Divorce (accessed on 28-12-2020)

^[2]2 Ibid.

^[3] Henry Campbell Black, Black’s Law Dictionary (West Publishing Co., 4th edn., 1971) p.71

^[4]4. The Constitution of India, 1950.

^[5]5 Somyagoel, Joseph Shrine v. Union of India available at https://www.legalserviceindia.com/legal/article-3127-joseph-shine-v-s-union-of-india.html (accessed on 25-11-2020)

^[6] AIR 1954 SC 321

^[7] (1985) Supp SCC 137

^[8] (1988) 2 SCC 72

^[9] (2012) 1 SCC 358

^[10] (2017) 9 SCC 1

^[11](1974) 4 SCC 3

^[12] (1995) 4 SCC 520

^[13] (2017) 10 SCC 800

^[14] (2017) 10 SCC 1

^[15] (2018) 5 SCC 1

^[16] 2018 SCC Online SC 1676