Joseph Shine

v.

Union of India (2018)

Introduction- In india, Adultery law is defined in  section 497 of Indian Penal Code. Section 497 comes under the purview of the courts several times in the past but everytime Supreme Court held section 497 as valid. But the Supreme Court on 27th September 2018 in the case of Joseph Shine v. Union of India has brought down the 158 years old Victorian Morality law on adultery. The petition was filed by a non resident of Kerala named Joseph Shine who has raised question on the constitutionality of the section 497 of the Indian Penal Code. The judgment has overruled all the past judgments which upholds the criminalization of adultery. Now, adultery is become legal but it is still not ethical with the society. The institution of marriage is based on the trust between both the partners i.e. husband and wife. Therefore, Honorable Supreme Court of India does not interfere in the personal and moral lives of the people. Currently, adultery is only considered as a civil wrong and the remedy for the act of adultery is only divorce.

 

Background of the section 497 of Indian Penal Code- There were several times before where the question has been arisen on the constitutional validity of section 497 of Indian Penal Code and section 198 of Criminal Procedure Code in front of Supreme Court of India.

 

• It has been begin with the case of Yusuf Abdul Aziz v. State of Bombay where the husband was accused of adultery under section 497 of Indian Penal Code. But when the complaint was filed, the husband went to the Bombay High Court to check the constitutional validity of the provisions under article 228 of the constitution of India. The case was decided against the husband and an observation was made by Justice Chagla about the assumption laid down in section 497.

• There was another case Sowmithri Vishnu v. Union of India, where the challenges were made before the court on the basis of three grounds –

1. Section 497 does not give any right to wife to presents a wpmen with whom her husband had committed adultery.
2. This section does not give any right to the wife to prosecute her husband for the act of adultery.
3. This section does not covers cases where husband had sexual relations with an unmarried women.

• In another case, V Revathi v. Union of India the court held that this section does not permit either the husband of the offending wife to prosecute her nor it wife of the offending husband for being disloyal to her. Therefore, since neither of the spouses can bring a charge against their disloyal nor offending spouses. Hence, this section does not discriminate on the basis of sex.

 

Facts of the Case-

• Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal Code.
• The core reason  behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands.
• Petitioner’s close friend in Kerala committed suicide after a women co-worker made malicious rape charge on him. Further section 497 is an engregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism.
• The traditional framework in which  section 497 was drafted, is no longer applicable in modern society.

 

Issues-

• Whether section 497 of Indian Penal Code is unconstitutional ?

• The petitioner wanted certain problems with section 497 to be addressed :-

• Adultery law provides that man to be punished in case of adultery but no action is suggested for the women. Hence, it made the gender neutral.
• As per section 497, there is no legal provision that a woman can file a complaint of adultery against her husband.
• According to section 497, if the husband gives his consent for such an act then such act is no more considered as a crime. Therefore, women are treated as an aobject under adultery law.

 

Judgment–

In December 2017, Joseph Shine has filed a petition raising the question on the constitutional validity of section 497. A three judge bench headed by then CJI Dipak Mishra has referred this petition to a five judge constitution bench which comprised of CJ Dipak Mishra, and Justices R.F Nariman, A.M Khanwilkar, DY Chandrachud, and Indu Malhotra.

 

• The court had observed that law is based on certain ‘Societal presumption’. In four different judgments, the court has struck down the law and declared that husband cannot be the master of his wife. The judgment held the following things:-

 

• Section 497 is archaic and is constitutionally invalid-

Section 497 disposes women from her autonomy, dignity and privacy. It is considered as the encroachment on her right to life and personal liberty by accepting the notion of marriage which overthrows the true equality. Equality is overthrow by adopting the sanctions of penal code to a gender based approach to the relationship of man and woman. Sexual autonomy falls within the area of personal liberty under article 21 of Constitution of India. It is very much important in a relationship the expectations that one has from the another. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established.

 

• Adultery is no longer be a criminal offence-

A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

 

• Husband is not the master of his wife-

The judgment focuses on the fact that women should not be considered as the property of their husband or father anymore. They have equal status in the society and should be given every opportunity to put their stance forward.

 

Section 497 is arbitrary-

In the whole of the judgment it was pointed out that nature section 497 is arbitrary. As husband can give his consent to allow his wife to have an affair with some other person. Hence, this section does not protect the ‘sancity 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 provision which deals with a married man having an affair with unmarried women.