By Kratanshi Srivastava from S R M S College of Law, Bareilly, UP
“Guilty and not guilty: these were the worst things. The only living worse than the guilty of the caught.” – ELIN HILDERBRAND
Joseph Shine Vs. Union of India, 2018 SCC Online SC 1676.
- Joseph Shine
- Supreme Court of India
Date of judgement
- September 27, 2018
- Justice Deepak Misra,
- Justice A.M. Khanwilkar,
- Justice D.Y Chandrachud,
- Justice Indu Malhotra, and
- Justice R.F. Nariman.
The fraudulent action is transpiring almost everywhere either in business or in family matters. Marriage is an action which is based on trust. Adultery let down the trust between the couple and it is illegal in India. Sexual intercourse between a married person and another person who is not their spouse and without the consent of, connivance of their partner, is known as adultery.
In French, there was the word “avouterie” which replaced “avouterie” in english and adultery in Latin, in the 15th century the word “adultery” changed into “adultery”.
HISTORICAL BACKGROUND OF SECTION 497-
- The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include “adultery” as an offence.
- Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties and not a criminal offence. It was overruled by the other members of the Law Commission, who believed that there should be a remedy for “adultery” under Common Law. Insufficient for the “poor natives”, who would have no recourse against the paramour of their wife.
- The debate for whether “adultery” should be a criminal offence. In India, it was noted in “Note Q” of “A Penal Code prepared by the Indian Law Commissioners”.
- The Law Commissioners considered that by not treating “adultery” as a criminal offence, it may confer sanction to immorality.
- The Law Commissioners considered the predicament of women in this country, which was much worse than the women in France and England. “Note 15 Q” (supra) records this was the purpose for not punishing women for the offence of adultery.
- “The native’s backwardness” to take the option to the courts for rectifying in cases of adultery, arose from the emit gloom on their part of obtaining a conviction. He was of the vision that if adultery is not made a crime, the adulterous wives will be tortured by their husbands. In his sight, offences such as adultery were inexcusable and must be punished.
- It was that Section 497 came to be included in the I.P.C.
JOSEPH SHINE vs UNION OF INDIA–
Writ Petition under the article 32 of Indian Constitutional has been filed to challenge the constitutional plausibility of Section 497 of the Indian Penal Code (I.P.C.) which promulgate “adultery” a criminal offence, and authorize punishment of imprisonment up to five years and fine. The petitioner also challenged the Criminal Procedure code, 1973 section 198(2).
- Article 15(3) of the Indian Constitution, permits the state to frame provision for the upliftment of women and children.
- The Petitioners have contended that the right to privacy under Article 21of the Constitution of India would include the right of two adults to enter into a sexual relationship outside marriage.
Section 497 of the Indian Penal Code as under: ―
“Adultery — Whoever has sexual relation with an individual who is and whom he knows or has a purpose to trust to be the wife of another male, without the consent or connivance of that man, such carnal knowledge not to amounting to the crime of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either prescribe for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be penalizable as an abettor.”
Section 198(2) of Code of Criminal Procedure as under: ―
“For the result of sub-section (1), no person other than the husband of the woman shall be considered to be aggrieved by any offence penalizable under section 497 or section 498 of the said Code: Furnished that in the non-appearance of the husband, some person who had the care of the lady on his behalf at the time when such crime was committed may, with the leave of the Court, make an objection on his behalf”.
CONTEMPORARY INTERNATIONAL JURISPRUDENCE
It is important to know about the law of the other country in reference to ‘adultery’.
- United States of America
17 out of 50 States treat “adultery” as a criminal offence under the State law in the United States of America. The characterization of the offence differs from State to State.
In Canada, the Criminal Code of Canada under Section 172 imposes criminal sanctions for adulterous conduct. This provision was introduced in 1918 and continues to remain on the Criminal Code.
In Malaysia, adultery is punishable as a criminal offence under the Islamic Laws. However, the Law Reform (Marriage and Divorce) Act, 1976 made it a civil wrong, for everyone.
In Japan, the provision for adultery was somewhat similar to the present Section 497 of I.P.C.; it punished the woman and the adulterer only based on the complaint filed by the husband.
- South Africa
The Court noted that even though adultery was of frequent occurrence in South Africa, and the reports of divorce cases were daily published in the newspapers in South Africa, the authorities took no notice of the offence.
- Whether the Indian Penal Code, 1860 or IPC section 497 is unconstitutional and violates the fundamental right?
- Whether the Criminal Procedure Code,1973 or CrPC section 198(2) is unconstitutional and violates the fundamental rights?
CASES OF ADULTERY IN INDIA
- Yusuf Abdul Aziz v. The State of Bombay.
- Sowmithri Vishnu v. Union of India & Anr.
- V. Revathi v. Union of India.
THE DOCTRINE OF COVERTURE
- Adultery is taken as an offence, not a crime in England, under common law.
- In England under Common Law, coverture determined the rights of married women.
- The ecclesiastical courts punish the accused, which exercised jurisdiction over sacramental matters which included legitimacy, marriage, separation, etc.
- The effect of “coverture” was that the legal rights of a married woman were subsumed by that of her husband.
- A married lady could not own property, execute legal documents, enter into a contract, or obtain an education against wishes of her husband, or preserve a salary for herself.
- Bracton (Medieval legal treatises describe the nature of ‘coverture’) states that husbands wielded power over their wives, being their “rulers” and “custodians of their property”.
- ‘The principle of coverture’ endured throughout the marriage of the persons. It was impossible to acquire a divorce through civil courts, which refused to encroach into the jurisdiction of the church. Adultery was the only way to procure a divorce.
The court observe and take into consideration the following point as passing the judgement-
- The court observed, “Thinking of adultery from the slant of criminality would be a regressive step. The Court has chosen the path of transformative constitutionalism and, therefore, it is completely inappropriate to be in a time machine to the other era where the machine travels on the path of retrogradation. Hence, to treat adultery as a crime would be unwarranted in law.”
- “John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others”.
- Under Sec 497, it is only the male- paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an “abettor”.
- The right to privacy under Art 21 would include the right of two adults to enter into a sexual relationship outside marriage ( Shafin Jahan v. Ashokan K.M & Ors)
The apex court declared that the provision criminalizing adultery deals with I.P.C.,1860 section 497. It violates Article 14, 15 and 21 of the Indian Constitution. Article 14 deals with the equality of law and in article 15(3) the state can make any special provision for women and children.
Justice Indu Malhotra
- She wrote, “The autocracy of an individual to enact his or her choices with esteem to his/her sexuality in the confidential spaces of life should be protected from overt censure.”
- Justice Malhotra stated that Section 497 is based on archaic norms and, hence, violates women’s fundamental rights to equality, autonomy and dignity. She emphasised that laws cannot deny women equal societal status.
- She stated that while adultery is a civil offence, it should not be a criminal offence.
- Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applied to the offence of Adultery under Section 497.
Chief Justice Dipak Misra
He wrote their views on behalf of Justice Khanwilkar and himself.
- Section 497 of I.P.C. is struck down as unconstitutional.
- He stated that Section 497 discriminates against women, treating them with indignity and inequality.
- He declared that legal subordination of one sex to another is wrong in itself.
- He further held Section 198(2) CrPC as unconstitutional.
- Section 198(2) deals with the procedure for filing a complaint in regards to adultery. He stated, ‘when the substantive provision goes, the procedural provision has to pave the same path’.
Justice Rohinton Nariman
- Justice Nariman delivered a different opinion, concurring with the decision of Chief Justice Misra.
- He struck down Section 497 IPC on the grounds that it violates Articles 14, 15(1) and 21.
- He also leads down Section 198(2) CrPC on the same grounds.
- Justice Nariman stated that the nature of the offence under Section 497 IPC is based on a paternalistic notion of a ‘woman as chattel’.
Justice DY Chandrachud
- On the question of equality under Article 14, He held that the power to make choices within marriage and on a single aspect concerned with it was a facet of the constitutionally protected value of freedom.
- Justice Chandrachud said that Section 497 violated the principle of substantive equality by denying equal protection of the rights of both parties to a marriage.
- He stated that Section 497 IPC is manifestly arbitrary.
The Adultery is a civil offence. It is morally wrong. “Section 497 of I.P.C. was rooted in patriarchal notions and beliefs, which resulted in centuries of female subjugation and oppression”.
“On The Criminalisation Principles, Oxford: Hart Publishing (2011) Adultery without any doubt is a moral erroneous qua the spouse and the family. The subject is whether there is enough element of unjustness to society in general, in regards to bringing it within the extent of criminal law? The part of public rebuke, visiting the disobedient with penal consequences, and uppermost a person’s rights, would be right only when the society is straightly impacted by such actions. De facto, a much stronger justification is needed where an offence is penalizable with imprisonment”.
In the Navtej Johar case, the court held that sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The justice DY Chandrachud said that “the purpose of Section 497 IPC is to preserve the institution of marriage, it does so in a manner that discriminates against women”.
“Men and women who decide to flirt with adultery just once can become enmeshed in misery and unhappiness for themselves and their precious families”. – Joseph B. Wirthlin