TITLE: Joseph Shine vs Union of India

CASE No. Writ petition (criminal) no. 194 of 2017

PETITIONER: Joseph Shine

RESPONDENT: Union of India

EQUIVALENT CITATION: 2018 SC 1676

BENCH: Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman.

DATE OF JUDGMENT: 27 September 2018

PREFACE:

In India, the law on adultery is set out in Indian Penal Code section 497. Section 497 came under the jurisdiction of the courts several times in the past, but section 497 was held valid every time by the Supreme Court. However in the case of Joseph Shine v. Union of India¹ the Supreme Court on 27 September 2018 struck down the 158-year-old Victorian Morality rule on adultery. The petition was submitted by a Kerala non-resident named Joseph Shine, who posed concerns regarding the constitutionality of Indian Penal Code section 497. The ruling overruled all the rulings passed that enforce the criminalization of adultery. Today, cheating is being legal but for society, it is still not acceptable. A marriage relationship is based on trust between the couples, i.e. the husband and wife. Hence, the Honorable Supreme Court of India does not intervene with people’s personal and religious lives. Adultery is often called a legal error and the only divorce is the cure for the crime of adultery.

Section 497 provides that-

“Whoever has sexual relations through a person who is and whom he knows and reason to assume to be the wife of another man, lacking the permission or connivance of that man. Such sexual intercourse does not amount to rape and is guilty of adultery.”

Section 497 also specifies that a man found guilty of adultery shall be punished with any definition being imprisoned for a period that may last to 5 years, or with fine, or both.

BACKGROUND

The question on the procedural validity of section 497 of the Indian Penal Code and section 198 of the Criminal Procedure Code before the Supreme Court of India had been presented many times before.

This began with the case of Yusuf Abdul Aziz v. State of Bombay² where the husband had been charged with adultery under section 497 of the Indian Penal Code. Yet after the petition was filed, the husband went to the Bombay High Court to test that the rules under Article 228 of the Indian Constitution were legally correct. The case was decided against the defendant, and Justice Chagla asserted the presumption set out in section 497.

“Mr. Peerbhoy is correct in stating that the fundamental principle of section 497 that wives are their husbands’ property. This point of view is reinforced by the simple fact this crime is only visible with the husband’s permission. This is arguable that section 497 does not file a position in the existing law code. Days are gone, as their husband sees women as possessions.”

There was a question before the court that applied solely to the prohibition on using a wife as an abettor. This clause was meant to contradict Article 14 of the Indian Constitution but the court held that Section 15(3) of the Constitution of India, which provides for separate arrangements for women and girls, safeguarded this article.

This section 497 history specifically shows that the rule on adultery was always in the husband’s favor, allowing him to claim control of his wife’s marital partnership. This section has therefore never been in favor of helping the women. This rule stipulates that any male engaging in sexual intercourse with another man’s wife and that woman’s husband must give his consent to the same then such an act will not be punished with adultery. This simply denotes how women in their husbands’ hands are called an entity.

There was also another case Sowmithri Vishnu v. Union of India³ where, on three points, the questions were put before the court-

Section 497 does not grant a wife the right to present a woman who had committed adultery with her husband.
This provision grants the wife the right to sue her husband for the crime of adultery.

This section does not cover cases where the husband had sexual relations with unmarried women.

At first glance, it may appear like this portion was for the benefit of women, but it was built on thorough analysis that the clauses are embedded based on the premise that women are like men’s chattels. Chief Justice Chandrachud claimed in this case that, by law, the crime of adultery can only be committed by men and not by women. This case does not answer the real issue, i.e. the facets of constitutional jurisprudence that have an impact on section 497’s validity.

In another case, the court held V Revathi v. Union of India⁴ that this provision does not authorize either the offending wife’s husband to sue her or the offending husband’s wife for disloyalty to her. Consequently, none of the partners will bring charges against their disloyal or guilty partners. Therefore this section does not discriminate based on age.

FACTS:

Joseph Shine, the hotelier has questioned the constitutionality of Indian Penal Code section 497. The main purpose of the petition was to protect Indian men from being abused by vengeful women or their husbands for extramarital relationships. A close associate of Petitioner’s in Kerala committed suicide after a woman co-worker threatened him with malicious rape. Section 497 is a grotesque incidence of unequal masculinity, hierarchical hegemony, and male supremacy. In contemporary society the conventional context under which section 497 was written no longer exists.

ISSUES:

Whether it is unethical to be unfair, unlawful, unreasonable, and breaching human freedoms, Sec 497 of the Indian Penal Code, 1860.
Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional in that it is unjust, unlawful, and violates human rights.

DECISION:

The Court found Section 497 in violation of Article 14, 15, and 21 of the Constitution to be unconstitutional and ruled that Section 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional to the degree that it relates to Section 497 Indian Penal Code, 1860.

REASONING:

The court acknowledged that the statute was based on a ‘societal expectation.’ The court has struck down the rule in four separate decisions and has ruled that the husband cannot be his wife’s master. The decision held the following observations:-.

Section 497 is old and is constitutionally invalid:-

Section 497 disposes of women of their sovereignty, their independence, and their privacy. It is seen as a violation of her right to life and personal freedom by embracing the notion of marriage that overthrows real equality. Equality is being overthrown by introducing criminal code penalties for a gender-based attitude to man-woman relationships. Under Article 21 of the Constitution of India, sexual equality comes under the domain of personal liberty. The aspirations which one has from another are very significant in a relationship. If all partner regards each other with integrity and dignity so the only regard is created for sexual autonomy.

This section rejects fundamental equality because it provides that women cannot give their free consent to sexual acts in a civil order that deems them to be their spouse’s personal property. Section 497 is also in violation of Article 14 of the Indian Constitution and therefore in breach of the non-discrimination provision of Article 15 of the Indian Constitution. This section also puts considerable focus on the husband’s approval that contributes to women’s subordination. It thus explicitly infringes Article 21 of the Indian Constitution.

Adultery is not a criminal offence any more:-

A crime is done against the entire humanity when fraud is a personal matter. Adultery does not work into the definition of criminality, because it would otherwise violate marriage’s intense realm of privacy. Adultery, however, may be treated as a legal mistake, which is a legitimate basis for divorce.

Husband is not the master of his wife:-

The decision reflects on the no longer seeing women as the property of their husband or spouse. They are of equal standing in society and will have the chance to bring forward their stance.

Section 497 is arbitrary:-

It was pointed out in the judgment that section 497 on existence is discriminatory. A husband may agree to permit his wife to have an affair with another male. Therefore, this section does not cover the ‘family sanctity.’ The clause retains the husband’s legal rights that he maintains over his partner. That clause forbids the wife from filing a lawsuit against her husband. There is no clause in this section that deals with a married man having an affair with unmarried women.

ANALYSIS:

The judgment brought forth a positive move when it struck down Section 497 Indian Penal Code, 1860, and Section 198(2) of Code of Criminal Procedure, 1973, as both provisions are based on gender discriminative status. The clause is unfair in two ways: firstly, it does not grant women the right to sue an adulterous partner, and secondly, it does not even punish a woman as an ‘abettor’ of adultery.

Furthermore, this decision has brought the principle of transitional justice into effect.

Nevertheless, in the world of adultery law, the decision has contributed to some sort of paradox because it makes the crime of adultery non-punishable. It is argued because when a wife indulges in adultery, the decision strips away alternatives open to either spouse. And the decision is still silent on its impact on social structures such as marriage, and also on children born out of these marriages or engaged in similar circumstances in some other way.

Additional point: If due to adulterous act, another spouse commits suicide, then the Adulterous spouse under section 360 of the Indian Penal Code, 1860 can be prosecuted for abetment to suicide.

SOURCES:

2018 SC 1676.
1954 SCR 930.
1985 Supp SCC 137.
(1988) 2 SCC 72.
https://lawtimesjournal.in/joseph-shine-vs-union-of-india/
https://indiankanoon.org/doc/42184625/
https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/

This blog is written by Akriti Sharma, Banasthali University

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