Case Commentary on Joseph Shine Vs Union of India
Adultery is defined under Section 497 of the Indian Penal Code. which states that whoever has sex with any person who is and whom he knows and believes to be the wife of another man without the consent or connivance of that person. Such intercourse does not amount to the offense of rape and is guilty 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 cases the wife shall not be punishable as an abettor. This section came under the purview of the court many times and there was discussion but the Supreme Court upheld it. The Supreme Court on 27 September 2018 bought up the 158-year-old Victorian ethics law on adultery in Joseph Shine v Union of India. The development of the concept of adultery in these ages is thoroughly discussed in the judgment. As discussed in Remnants of Victorian Ethics, this control over a spouse's sexual agency sees the wife as the property of the husband. The loyalty of the woman and the control of the husband over her is seen as maintaining the husband's property interest in the wife.
The petition was filed by Joseph Shine, a non-resident from Kerala who questioned the constitutionality of Section 497 of the Indian Penal Code. The judgment supersedes all previous rulings that upheld the criminalization of adultery. The question arose whether adultery should be dealt with as an offense or not. The court was of the opinion that adultery does not fit the concept of crime. That if it is treated as a crime, there would be excessive intrusion in the excessive secrecy of the matrimonial sphere. It is better to be left as grounds for divorce.
Now, adultery has become legal but it is still not ethical with society. The institution of marriage is based on trust between both the parties, husband and wife. Therefore, the Hon'ble Supreme Court of India did not interfere in the personal and moral life of the people.
Currently, adultery is only considered a civil wrong and the only remedy for the act of adultery is divorce.
Before this many times the constitutional validity of Section 497 of the Indian Penal Code and the constitutional validity of Section 198 of the Code of Criminal Procedure has been questioned before the Supreme Court of India. It begins with the case of Yusuf Abdul Aziz v State of Bombay where the husband was charged with adultery under section 497 of the Indian Penal Code.
Background :
But when the complaint was filed, the husband went to the Bombay High Court to examine the constitutional validity of the provisions under Article 228 of the Constitution of India. The case against the husband was decided and an observation was made by Justice Chagla regarding the presumption laid down in section 497. Mr. Peerbhoy is right when he says that the underlying idea of section 497 is that wives are the property of their husbands. The fact that the offense is cognizable only with the consent of the husband emphasizes that view. It can be argued that section 497 should not find a place in any modern code of law. We hope that the days are gone, when women were seen as property by their husbands. But it is an argument in favor of abolishing Section 497 altogether.
A challenge was placed before the court for a ban on treating only one wife as an abettor. This provision was considered a violation of Article 14 of the Indian Constitution, but the court held that this provision is protected by Article 15(3) of the Constitution of India which provides for special provisions for women and children. This history of adultery shows that section 497 clearly provides that the law of adultery was always in favor of the husband, as he reserved ownership over his wife's sexual relations.
Therefore, this class has never been in favor of the interests of women. The law provides that any person who has sex with the wife of another man and the husband of that woman gives her consent, shall not be charged with adultery for such an act. This clearly shows how women are treated as objects in the hands of their husbands.
Facts :
Hotelier Joseph Shine challenged the constitutionality of Section 497 of the Indian Penal Code. The main reason behind this petition was to protect Indian men from being punished for extramarital affairs by vindictive women or their husbands. In Kerala, a close friend of the petitioner committed suicide after a female colleague accused him of malicious rape. Also Section 497 is a serious act of sexuality unfairness, official imperialism and male patriotism. The traditional framework in which Section 497 was drafted is no longer applicable in modern society.
Judgement :
The judgment delivered by CJI Dipak Misra began with statements proving that wives are not the property of the husband and that the husband is not their owner.
Section 497 deprives women of their autonomy, dignity and privacy. To live is to live with dignity. The drafters of the constitution defined their vision of a society in which constitutional values would be achieved by emphasizing other freedoms, liberty and dignity. Dignity is so fundamental that it lies at the core of the rights guaranteed to the individual by Part III and privacy of the individual is an essential aspect of dignity.
Section 497 is considered an encroachment on the right to life and personal liberty of the wife by accepting the notion of marriage which uproots true equality.
Equality is overthrown by adopting the restrictions of the Penal Code for a gender-based approach to the relationship of man and woman. Sexual autonomy comes within the domain of personal liberty under Article 21 of the Constitution of India. Trust and respect are two essential elements of marriage. Respect for sexual autonomy is established when both husband and wife treat each other equally and with respect.
This section denies real equality as it provides that women are not capable of giving their free consent to sexual acts in a legal order which treats them as the sexual property of their spouses.
Therefore, Section 497 is a violation of Article 14 of the Constitution of India and it also violates the non-discrimination clause of Article 15 of the Constitution of India. This section also emphasizes on the consent of the husband which leads to the subjugation of women. Therefore, it clearly violates Article 21 of the Constitution of India.
Adultery is no longer a criminal offense- a crime committed against the society as a whole whereas adultery is an individual issue. Adultery does not fit within the scope of the crime because it would otherwise invade the extreme privacy realm of the marriage. However, adultery can be considered a civil wrong and is a valid ground for divorce.
The husband is not the owner of his wife—the decision focused on the fact that women should no longer be treated as the property of their husband or father. They have equal status in the society and should be given every opportunity to present their case.
Conclusion :
The debate over the law of adultery in India has proceeded in two definite, stagnant directions: While the court upholds the provisions by saying that women are not eligible to be given agency, male rights activists demand (retaliation) that the provision be reevaluated. Go. To remove immunity of women from prosecution. Both are highly patriarchal ways of looking at the situation. The Safe Judgment has the option of departing from these lines of reasoning and focusing on the core issue: the empowerment of women in criminal law.
It should be noted that the removal of these provisions does not mean that there are no legal consequences for indulging in adultery. These consequences do not have to be criminal, and a remedy can be found in civil law, where adultery already has a place. This is a ground for divorce in personal law. Such an approach is also in line with the right to privacy and does not require the state to expand its resources.
Cruelty under section 498A, with the definition of domestic violence under the Domestic Violence Act, 2005, can cover mental trauma caused to a woman by her husband's adulterous relationship.
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