Published On: 1st September, 2024
Citation: 2018 SCC ONLINE SC 1676
Court Name- The Supreme Court of India at Delhi
Judges- C.J. Dipak Misra, J. A.M. Khanwilkar, J. D.Y. Chandrachud, J. R.F. Nariman, J. Indu Malhotra
Petitioner Name- JOSEPH SHINE
Respondent Name- Union Of India
Date of Judgment- Sep 27, 2018
INTRODUCTION
The landmark case of Joseph Shine v. Union of India marked a turning point in Indian legal history, leading to the decriminalization of adultery. India’s adultery laws were deeply rooted in patriarchal and chauvinistic ideas, criminalizing men who have sexual relations with married women, while women themselves were considered mere victims. This legal framework provides no legal remedy for women whose husbands commit adultery, reflecting gender bias that violates the constitutional rights to equality, non-discrimination and a right to live with dignity. Historically, adultery was considered a sinful act, regardless of whether it was committed by a man or a woman. However, Indian law treated women as passive participants who were seduced into adultery by men, thus perpetuating gender inequality. This outdated mindset was not only discriminatory but also violated the right to privacy. Recognizing these problems, many countries, including South Korea, South Africa, Uganda and Japan, have abolished adultery as a crime. Even Lord Macaulay, the framer of the Indian Penal Code, was against criminalising adultery and argued for treating it as a civil matter. Over time, in response to changing social values and expanding individual freedoms, the law has evolved and expanded the scope of fundamental rights. The judgment in Joseph Schein v. Union of India reflects this development, repealing a 164-year-old law that is no longer relevant in the modern world.
FACTS OF THE CASE
In its 42nd Report, 1971, The Law Commission of India recommended that under Section 497 even the wife, who’s Living in Adultery with a person other than her husband, should also be punishable for adultery. The petitioner under Article 32 of The Constitution Of India, 1950, challenged the constitutional validity of Section 497 of the Indian Penal Code, 1860, according to which ‘adultery’ is a criminal offence, also challenged was the Section 198(2) of the Code of Criminal Procedure. The present writ petition challenges the constitutional validity of Section 497 and Section 198(2) of the CrPC on the grounds that it is violative of Article 14,15 and 21 that is right to equality, right against discrimination and right to life and personal liberty respectively.
LEGAL PROVISIONS ADDRESSED
Following are the provisions that were addressed in the case of Arnesh Kumar vs. State of Bihar-
- Section 497 of the Indian Penal Code, 1860–
Adultery. —
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
- Section 198(2) of the Code of Criminal Procedure, 1973–
“ For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint, on his behalf.”
- Article 14 of the constitution of India,1950-
Equality before law
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
- Article 15 of the constitution of India,1950-
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1)The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2)No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-(a)access to shops, public restaurants, hotels and places of public entertainment; or(b)the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3)Nothing in this article shall prevent the State from making any special provision for women and children.
(4)Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5)Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
(6)Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a)any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b)any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
Explanation. —For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.
- Article 21 of the constitution of India,1950-
Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
ISSUES RAISED
- Whether Section 497 of the IPC is Violative of The Constitution of India?
- Whether the provision for adultery is arbitrary and discriminatory in nature?
- Whether or not Section 497 of the IPC is unconstitutional and violates of Articles 14, 15, and 21 of the Constitution?
- Whether Section 198(2) of the CrPC is unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497?
ARGUMENTS CONTENDED:
Petitioner:
The petitioner’s counsel argued that Section 497 of the Indian Penal Code violated fundamental rights, particularly pointing out its historical irrelevance as it was enacted during the British era. They asserted that Sections 497 and 198(2) of the CrPC contravened Article 14 of the Constitution, which ensures equality before the law, by criminalizing adultery solely on the basis of gender. The petitioner argued that the law, which disregards the wife’s consent, implies that a woman is her husband’s property, making it unconstitutional under Article 15. Additionally, it was contended that this provision undermines a woman’s dignity and sexual autonomy, violating Article 21, and that the act of adultery should be a matter of privacy. The petitioner’s counsel emphasized that the law is paternalistic and arbitrary, arguing that consensual sexual activity should result in liability for both parties involved, irrespective of marital status or gender.
Respondents:
The respondents’ counsel defended the adultery law, arguing that it protects the institution of marriage and deters behaviour that could harm family relations. They maintained that adultery has broad societal impacts, affecting spouses, children, and society, and is morally unacceptable. They justified the gender discrimination in the law under Article 15(3), which allows for special provisions for women and children. The respondents contended that the Right to Privacy under Article 21 is not absolute and does not protect extramarital sexual activities, which are against public interest. They argued that Section 497 serves as a moral safeguard for society and should not be entirely struck down, suggesting that only the unconstitutional portions be removed while retaining the provision.
JUDGMENT
The Hon’ble Court observed that the law indeed was based on certain Societal Notions. The Court struck down the law and declared it archaic and arbitrary law that the husband is not the master of his wife. However, adultery still remains under the ambit of civil law and thus is still can be a ground for divorce under Hindu Marriage act ,1955. The judgment directly blows the archaic and patriarchal law in our country. The Court ultimately struck down Section 497 IPC,1860, as unconstitutional being violative of Articles 14, 15, and 21 of the Constitution And Section 198(2) of the CrPC is unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.
REASONING
1. Arbitrariness
The Supreme Court applied the test of manifest arbitrariness to invalidate Section 497 of the IPC,1860. The classification under Section 497 was found arbitrary because it only allowed the husband to prosecute for adultery, not the wife, violating Article 14 of the Constitution. The provision treated women as the property of their husbands, evident from the fact that adultery wasn’t an offence if the husband consented. This gender-based classification was outdated and irrelevant in modern times, where women stand equal to men, thus breaching the principle of equality.
- Gender Discrimination
Section 497 discriminated between married men and women, based on the stereotype that a husband controls his wife’s sexuality. The law, purportedly protecting women from punishment as abettors under Article 15(3), was actually grounded in patriarchy and paternalism. The Court concluded that Section 497 violated Article 15(1) by perpetuating gender discrimination and denying women their sexual autonomy.
3. Dignity and Privacy
Article 21 of the Constitution protects individual dignity and sexual privacy. The Supreme Court cited S. Puttaswamy and Anr. v. Union of India (AIRONLINE 2018 SC 237) and Common Cause v. Union of India (AIR 2018 SUPREME COURT 1665), emphasizing that both men and women have equal rights to privacy. Section 497 undermined a woman’s autonomy by making her subject to her husband’s control, violating her dignity. The outdated societal view of women as chattel was incompatible with the modern understanding of gender equality, making the provision unconstitutional.
4.Adultery and Privacy
The Court determined that adultery is a private matter between consenting adults, not a crime against society. Unlike other matrimonial offences that directly affect the life and safety of a spouse, adultery does not warrant criminal punishment. The Court emphasized that while adultery could be grounds for divorce, it should not be criminalized. Section 497 made the husband the aggrieved party and the woman a victim, further entrenching gender inequality. The provision’s focus on the husband’s consent subordinated the woman, infringing on her rights to dignity, liberty, and privacy under Article 21.
AFTERMATH
The Supreme Court declared Section 497 unconstitutional, holding that it violated Articles 14, 15, and 21 of the Constitution. The Court also invalidated Section 198(2) of the CrPC as it applied to adultery. The decision overturned prior judgments that criminalized adultery, asserting that Section 497 was outdated and constitutionally invalid as it deprived women of autonomy, dignity, and privacy. The Court noted that treating adultery as a crime enforced gender stereotypes and denied women their status as equal partners in marriage.
Justice D. Mishra and Justice A.M. Khanwilkar opined that criminalizing adultery intruded on the privacy of matrimonial relationships, distinguishing it from other matrimonial offences like dowry demands and domestic violence. Justice D.Y. Chandrachud highlighted the significance of sexual autonomy and the right to privacy. He emphasized that patriarchal control over women’s sexuality had no place in the constitutional order, which respects individual dignity and autonomy. Justice Indu Malhotra argued that adultery should be a civil wrong, emphasizing the importance of protecting individual sexual autonomy from criminal sanctions. Overall, the Court concluded that adultery should remain a ground for divorce but not a criminal offence, affirming the importance of personal choice and privacy in intimate matters.
CONCLUSION
This important judgment underlines the role of the Indian Constitution as a dynamic and progressive legal instrument Even Lord Macaulay, the framer of the Indian Penal Code, was against criminalising adultery and argued for treating it as a civil matter. Over time, in response to changing social values and expanding individual freedoms, the law has evolved and expanded the scope of fundamental rights. The judgment in Joseph Shine v. Union of India reflects this development, repealing a 158-year-old law that is no longer relevant in the modern world.
REFRENCES
[1] https://privacylibrary.ccgnlud.org/case/joseph-shine-vs-union-of-india
[2] https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/
[3] https://www.alec.co.in/judgement-page/joseph-shine-v-union-of-india-2018
