Case Summary: Joseph Shine V. Union Of India (AIR 2018 SC 4898)

Case Title: Joseph Shine V. Union Of India 

Citation: AIR 2018 SC 4898

Court: Supreme Court Of India 

Bench: Chief Justice Dipak Mishra, Justice Khanwilkar, Justice Nirman, Justice Chandrachud, and Justice Indu Malhotra 

Date of Judgment: September 27, 2018

Key Provisions: Section 497 of the Indian Penal Code, 1860; Section 198 of the Criminal Procedure Code, 1973; Articles 14, 15, 16, and 21 of the Constitution of India 

Brief Facts 

A petition was filed under Article 32 of the Indian Constitution by Joseph Shine, a non-resident Keralite, challenging the constitutionality of Section 497 of the Indian Penal Code, 1860, read along with Section 198 of the Code of Criminal Procedure, 1973 being discriminatory against men, hence violative of Article 14, as  highlighted in Maneka Gandhi v. Union of India, R. D. Sherry v. Airport Authority and E. P. Royappa v. State of Tamil Nadu. It also violates Articles 15 and 21 of the Indian Constitution as it discriminates against women, brought into light for the first time in the case of Yusuf Abdul Aziz v. State of Bombay. It was initially a Public Interest Litigation, filed against the adultery law. A constitutional bench of 5 judges was set up to hear the petition.

Issues Raised 

1. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery?
2. Is Section 497 an excessive penal provision that needs to be decriminalised?
3. Does the exemption granted to married women under Section 497 violate the right to equality under the Constitution?
4. Is criminalizing adultery an intrusion of law on the right to privacy of an individual?
5. Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on a gender basis under Article 15 as if the husband has consented to such an act, then such an act will no longer be considered an offence?
6. Whether the dignity of a woman is compromised by the denial of her sexual autonomy and right to self-determination?

Petitioner’s Contentions ( Joseph Shine )

1. The petitioner contended that the provision is based on the notion that a woman is the property of her husband. The provision says that if the husband gives his consent, then adultery is not committed.
2. The petitioner contended that the provision is unconstitutional as it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination, hence violating Article 21. Further, the counsel claimed that the act of two parties engaging in sexual activity with each other comes under the Right to Privacy and that sharing such discreet information will be a violation of Article 21.
3. Further, the counsel argued that women were treated as mere objects under this provision or law, as the act was considered to be an offence depending on the husband’s consent or the lack thereof.
4. The counsel also contended that the provisions were against the fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution of India, considering their paternalistic and arbitrary nature.
5. The counsel also argued that as sexual intercourse was a reciprocal and consensual activity between both parties, both of them should be liable for punishment.
6. The counsel further argued that every individual had the unfettered right, irrespective of their marital status or gender, to engage in sexual intercourse, be it outside of wedlock, in case he/she is married.

Respondent’s Contentions ( Union of India )

1. The counsel for the respondents contended that adultery is an offence that breaks family relations and deterrence should be there to protect the institution of marriage.
2. 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.
3. The counsel for the respondent stated that such an act would outrage the morality of society and also cause harm to its members; thus, it should be punished and considered an offence.
4. The counsel further argued that Section 497 was valid as a form of affirmative action favoring women.
5. Also, the counsel contended that the Right to Privacy and Personal Liberty under Article 21 of the Constitution of India was not absolute and that there were reasonable restrictions when public interest was at stake. The Right to Privacy provision does not provide protection of privacy to an individual who is engaging in sexual intercourse with another married person outside the purview of his/her marriage.
6. Section 497 is actually acting as a protector for society from such an immoral activity that will outrage the institution of marriage; hence, it should not be struck down.

Judgment 

The Apex Court struck down Section 497 of the Indian Penal Code, 1860, and declared that legal subordination of one sex to another is wrong in itself. The court concluded that Section 497 IPC violates Articles 14, 15, and 21 of the Constitution. It was further held that Section 198(2) CrPC is also unconstitutional.

• Adultery is no longer a Criminal offence

Justice Misra observed that while adultery could be a civil wrong, it cannot be a criminal offence.

He held that the State could not criminalize actions occurring within the private realm of marriage. He opined that adultery cannot be a crime.

• The Husband is not the master of the wife

Speaking on gender equality, Misra (CJI) declared that the Court could no longer allow women to be treated as the property of  men. He emphasised that the Court has evolved a progressive jurisprudence on constitutionally protected liberties and, recently, conferred several rights to women. Accordingly, he held that Section 497 violates Article 14 of the Constitution, stating it is manifestly arbitrary and creates excessive and disproportionate distinctions based on gender stereotypes.

Ratio Decidendi 

1. It was observed that, Section 497 protects women from being punished as abettors. It articulated that this provision is lucrative for women, which is backed by Article 15(3). Article 15(3) was added to shield women from patriarchy and bring them out of male chauvinism. The aim of this text was to bring them capable men. But Section 497 isn’t protective discrimination but grounded in patriarchy and paternalism, i.e., male chauvinism.
2. The dignity of personal and sexual privacy is protected by the Indian Constitution under Article 21, i.e., the right to life, which is a fundamental right. A female has an equal right to privacy as a person. The autonomy of a private is the ability to form decisions on one’s own integral matters of life.
3. When the legal code was drafted, the societal notions regarding women were backward, and they were treated as chattel, but after 158 years, the status of women has improved to a similar level to that of men. Her dignity is of utmost importance, which can’t be undercut by a provision that eternalizes such gender stereotypes. It was based on the fact that women should not be considered as the property of their husbands or fathers. Women are not their property and they are not their masters.
4. It was held that Adultery is no longer a criminal offence as a crime is committed against 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.
5. Any legislation which treats similarly situated persons unequally, or discriminates between persons based on sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution. Legislation that deprives women of the right to prosecute cannot be termed beneficial legislation and is not gender-neutral. Any provision that might have, a few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. Legislation that institutionalizes discrimination and is based on such stereotypes that wives live under the shadows of their husbands is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.

Obiter Dicta 

Adultery can be considered a civil wrong and is a valid ground for divorce. The offence relies on the idea of women being a property of their husband, husband being their proprietor, and adultery is taken into account as a theft of his property because it says consent or connivance by the husband wouldn’t make it an offence.

The anomalies and inconsistencies in Section 497 render the provision liable to be struck down on the grounds of it being arbitrary and discriminatory. The right to privacy and personal liberty is not an absolute one but is subject to reasonable restrictions when legitimate public order is involved. 

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary.

The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realized in the fullest sense. 

Conclusion  

The court made a landmark judgment by overruling many previous judgments by decriminalizing adultery. The Striking Down of Section 497 of the IPC in the case of Joseph Shine v. Union of India, by the Apex Court, has cramped the marriage institution, which is an integral part of Indian Society. This will ultimately lead to the uninterrupted crime of Adultery. This will result in sexual anarchism. 

The Parliament Standing Committee on Home Affairs has earlier suggested that the Bharatiya Nyaya Sanhita Bill, 2023, be amended to make adultery a criminal offence again, but on gender-neutral terms. The Committee reasoned that adultery should be criminalised in a gender-neutral manner because it is crucial to safeguard the sanctity of the institution of marriage. However BNS does not include Adultery as an offence but retains Section 498 of the IPC which is (Section 84) of BNS which penalises a man for enticing the wife of another man.