JOSEPH SHINE V. UNION OF INDIA

 

JOSEPH SHINE V. UNION OF INDIA

 

 

 

NAMEOFTHECASE	Joseph Shine v. Union of India
CITATION	Writ Petition (Criminal) No. 194 Of 2017
DATEOFJUDGEMENT	27th September 2018
APPELLANT	Joseph Shine
RESPONDENT	Union Of India
BENCH/JUDGE	Chief Justice Dipak Mishra, Justice A. Khanwilkar, Justice R. F. Nariman,  Justice D. Y. Chandrachud, Justice Indu Malhotra
STATUTES/CONSTITUTIONINVOLVED	ConstitutionofIndia;IndianPenalCode,1860;CriminalProcedureCode,1973
IMPORTANTSECTIONS/ARTICLES	ConstitutionofIndia—Arts.14, 15, 21and 32   IndianPenalCode,1860,Section497   Criminal Procedure Code, 1973 — Section 198

 

ABSTRACT

 

In 2017, Joseph Shine, an Indian national residing in Italy, filed a petition in the public interest under Article 32 challenging the constitutional validity of Section 497 of the Indian Penal Code, 1860 (IPC) which dealt with the criminal offence of adultery and Section 198(2) of the Code of Criminal Procedure, 1973 (CrPC) which provided that no person other than the husband of a person accused of adultery would be deemed to be aggrieved by the commission of an offence under Section 497.

 

Article 497 of the IPC was knocked down by the Supreme Court on the grounds that it violated Articles 14, 15, and 21 of the Constitution. In four concurring opinions, the five-judge bench unanimously determined that the statute was antiquated, arbitrary, and paternalistic and that it violated a woman's autonomy, dignity, and privacy. Section 198(2) of the Criminal Procedure Code, which permitted only the husband to pursue a prosecution under Section 497 of the Indian Penal Code, was also declared unconstitutional. This ruling overturned the Court's prior decisions in Yusuf Abdul Aziz vs. State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India ((1985) Supp SCC 137), and Vishnu Revathi vs. Union of India ((1988) 2 SCC 72), in which the constitutionality of Section 497 was upheld.[1]

 

 

INTRODUCTION

 

The concept of patriarchy and masculine chauvinism underpinned adultery in India. A man who has sexual intercourse with the wife of another man is guilty of this crime. And if the husband approves or connives, it is no longer adultery. A woman has little legal recourse if her husband commits adultery. In ancient times, both men and women who committed adultery were regarded to have sinned. A woman who commits adultery in India is not viewed as a perpetrator, but as a victim who was persuaded by a man.This law violates our constitutional principles, such as equality, non-discrimination, and the freedom to live with dignity. Sixty countries, including South Korea, South Africa, Uganda, and Japan, among others, have abolished adultery as a crime due to its gender discrimination and violation of the right to privacy.[2] Even Lord Macaulay, the architect of the penal code, opposed its inclusion as a crime in the penal code and urged that it be left as a civil wrong. Numerous recent decisions have expanded the scope of basic rights by shifting society’s ideals and expanding individual freedom. This decision joins them in making history by knocking down 158-year-old legislation that has become irrelevant in light of shifting social and moral conditions.The Latin term "adulterium," which means "to corrupt," is the source of the French word "adultery." Consensual sexual interactions outside of marriage that is frowned upon for moral, religious, or legal reasons are deemed adultery.Even if adultery is no longer a criminal offence, it is still considered wrong since it goes against the grain of acceptedbehaviour in polite society.

 

In India, Section 497 of the Indian Penal code (IPC) 1860, defined adultery as:

“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 a case, the wife shall not be punishable as an abettor”.

 

FACTSOFTHECASE

 

Joseph Shine filed a writ petition under Article 32, arguing that Section 497 of the Indian Penal Code (IPC) read with Section 198 of the Criminal Procedure Code (CrPC) is unconstitutional since it conflicts with Articles 14, 15, and 21. Initially, it was a public interest lawsuit challenging adultery. Petitioner argued that the adultery provision was biased against women. A law like this, the petitioner argued, would destroy a woman's self-respect. To consider the petition, a constitutional bench consisting offive judges was assembled[3].

 

ISSUERAISEDBEFORETHECOURT

 

1.     Whether the provision for adultery is arbitrary and discriminatory under Article 14?

2.     Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on a gender basis under Article 15?

3.     Whether the dignity of a woman is compromised by the denial of her sexual autonomy and right to self-determination?

4.     Whether criminalizing adultery is intrusion by law in the private realm of an individual?

 

 

 

ARGUMENTSFROMTHEAPPELLANTSIDE

 

·       Counsel for the petitioner argued that the provision criminalises adultery based on classification based solely on sex, which has no rational connection to the goal being opposed. The consent of the spouse is irrelevant. Therefore, this violates Article 14 of the Constitution.

·       The petitioner argued that this rule is founded on the assumption that a woman is her husband's property. The law states that adultery is not committed if the husband consents orconnives.

·       The petitioner argued that the rule is unlawful because it demeans women by not recognising their sexual autonomy and independence. It is contrary to Article 21.

·       Therefore, Section 497 of the IPC in conjunction with Section 198 of the CrPC must be stricken down.

 

 

ARGUMENTSFROMTHERESPONDENTSIDE

 

·       The respondents argued that adultery is a crime that shatters family ties and that deterrence is necessary to safeguard the institution of marriage.

·       Respondents assert that adultery impacts the spouse, children, and society as a whole. Destruction of the sacredness of marriage by a third party with full knowledge is a crime.

·       Article 15(3), which grants the state the right to enact special laws for women and children, protects the provision's discriminatory nature.

·       Hence, they ask the court to remove the unconstitutional portion while retaining the remaining provision.

 

RELATEDPROVISIONS

 

·         ConstitutionofIndia

 

      I.         Article14:-(Equalitybeforelaw)TheStateshallnotdenytoanypersonequalitybeforethelawortheequalprotectionofthelawswithintheterritoryofIndiaProhibitionofdiscriminationongroundsofreligion,race,caste,sexorplaceofbirth

    II.         Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

    III.        Article21:-ProtectionoflifeandpersonallibertyNopersonshallbedeprivedofhislifeorpersonallibertyexceptaccordingtoprocedureestablishedbylaw

  IV.         Article 32(1): -The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

 

·         IndianPenalCode,1860

 

      I.         Section 497. (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[4].

·         Criminal Procedure Code, 1973

 

      I.         Section 198- Prosecution for offences against marriage.

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence: Provided that-

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to.[5]

 

PREVIOUS JUDGEMENTS

 

·         REVATHI VS UNION OF INDIA (1988):

In this case, the court upheld the constitutionality of Section 497 when read in conjunction with Section 198 because this provision prohibits both the wife and the husband from punishing each other for adultery, and is therefore not discriminatory. It only punishes an outsider who attempts to desecrate marriage. Consequently, it is reverse discrimination in her favour rather than against her.

 

·         SOWMITRHRI VISHNU VS UNION OF INDIA AND ANR. (1985):

 In this case, a petition under Article 32 was brought contesting the legitimacy of Section 497 of the IPC. The argument was based on the fact that the article in question does not give a woman the right to prosecute the woman with whom her husband has committed adultery, and is therefore discriminatory. In this instance, the three-judge panel affirmed the legality of the statute by arguing that the legislature, not the courts, should expand the scope of a crime. The crime of destroying a family is equivalent to the crime of destroying a home, so the punishment is appropriate. The court acknowledged that only men are capable of committing this crime.

 

JUDGEMENT

 

 

The Supreme Court ruled that Section 497 of the IPC was unconstitutional because it violated Articles 14, 15, and 21 and that Section 198(2) of the CrPC was unconstitutional insofar as it applied to Section 497 of the IPC. This ruling overturned several prior rulings that upheld the criminalization of adultery.[6]

 

The Judge decided that Section 497 was antiquated and unconstitutional since it deprived women of autonomy, dignity, and privacy. It concluded that the challenged clause violated a woman's right to life and personal liberty by promoting a conception of marriage that undermined true equality by applying criminal penalties to a gender-based view of the relationship between a man and a woman. It was determined that the excessive emphasis on the issue of connivance or permission on the part of the husband resulted in the subjection of the woman. The Court upheld sexual privacy as a constitutionally protected fundamental right.

 

Further, it was determined that Section 497 disregarded substantive equality because it reaffirmed the notion that women are not equal partners in a marriage and are incapable of independently consenting to a sexual act in a society and legal system that treats them as the sexual property of their spouse. Therefore, it was determined that this section violated Article 14. The courts also ruled that Section 497 violated Article 15's anti-discrimination provision because it was based on gender stereotypes. In addition, it was deemed a violation of Article 21 since it deprived women of their fundamental rights to dignity, freedom, privacy, and sexual autonomy.[7]

 

Adultery remained a civil wrong and a viable reason for divorce, even though it was no longer a criminal offence, the court noted. It was said that crimes were committed against society as a whole, whereas adultery fell under the category of personal affairs. The Court ruled that by classifying adultery as a crime, the State interfered with people's personal life and entered the private sphere and that following the act of adultery, the husband and wife should be permitted to make a joint decision based on their discretion.[8]

 

Justice D. Misra, opined for himself and Justice A.M. Khanwilkar, that criminalising adultery violated the absolute privacy of the marriage domain. He contrasted adultery with the demand for dowry, domestic abuse, putting someone to jail for non-grant of support, and filing a complaint for second marriage, as the latter group of offences are intended to subserve a variety of other marital relationship-related reasons. According to him, criminalising adultery violated two aspects of Article 21 of the Constitution: the dignity of husband and wife and the privacy of their relationship.

 

Justice D.Y. Chandrachud explored the ramifications of adultery on the right to privacy by referencing US Supreme Court precedent. He reaffirmed that misogyny and patriarchal concepts of a woman's sexual control have no place in our constitutional structure, which recognises the inherent dignity and autonomy of each individual. He cited Navtej Singh Johar vs. Union of India (AIR 2018 SC 4321) to discuss the significance of sexual autonomy as a component of individual liberty, to highlight the indignity suffered by an individual when "acts within their sphere" were criminalized based on regressive social attitudes, and to stress that the right to sexual privacy was a natural right, fundamental to liberty and dignity. Justice D.Y. Chandrachud cited K.S. Puttaswamy vs. Union of India ((2017) 10 SCC 1) in his judgement to emphasise that the law must reflect the status of women as equals in a marriage, entitled to constitutional guarantees of privacy and dignity; and that a life of dignity required that the "inner recesses of the human personality" be protected from "unwanted intrusion". His decision "emphasised the significance of sexual autonomy as a principle inherent to life and personal liberty under Article 21." He determined that Section 497 violated a woman's sexual freedom, autonomy, dignity, and privacy.

 

Justice I. Malhotra opined that adultery should remain a civil wrong since the freedom of a married individual to have a consenting sexual connection outside of marriage did not merit Article 21 protection. However, she believes that the sovereignty of a person to make decisions regarding their sexuality in the most sensitive areas of their lives should be shielded from public condemnation through criminal sanctions. Thus, she ruled that Section 497 does not satisfy the three-part criteria for invasion of privacy outlined in the Puttaswamy case in the context of Article 21.

 

CONCLUSION

 

 

In the 21st century, equality and liberalism have conquered the globe. Women-discriminatory laws must be repealed by legislative reform. Many laws in India have become obsolete with time. Being one of them, it was vital to eliminate adultery. Adultery not only discriminates between men and women, but it also degrades a woman's dignity. This was included as a crime when patriarchy and paternalism dominated society.In that society, the stereotype arose thatwomen belonged in the home and lacked similar rights and opportunities as men. The fact that married women lacked a distinct identity and were viewed as their husband's property is reflected in the provision for adultery.However, times have changed; women are no longer in men's shadows. Because adultery is a private matter, courts should not intervene. Every individual has sexual autonomy, and restricting this autonomy would contradict constitutional values. This decision decriminalizes adultery and reduces it to a basis for civil wrongs solely. Criminalizing both men and women for adultery, as suggested by Law Commission recommendations, would not have fulfilled the intended aim, as adultery is a highly private marital matter. The legislature should have taken this action a long time ago, but our judiciary has been very effective at filling in the gaps and deleting obsolete legislation in response to shifting cultural values.

The trend toward western culture, which includes infidelity, is most visible in large urban centres. Many people feel more comfortable committing adultery now that this decision has been made, so it's no surprise that they're upset about it. As expected, after the practice was legalised, adultery rose. Some men argue that the current situation makes it impossible to maintain a genetically pure lineage. Some argue that the Parliament should have adopted the Law Commissions’ suggested penalties for adultery, which would have applied equally to men and women. It has been argued that the Supreme Court should have deferred to Parliament in making rulings regarding adultery in light of the evolving social climate.

 

 

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[1]-, D.R.S. et al. (2020) Case analysis: Joseph Shine v. Union of India, iPleaders. Available at: https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/ (Accessed: November 24, 2022).

 

[2]-, G.P. et al. (2019) Offence of adultery in India- a study, iPleaders. Available at: https://blog.ipleaders.in/offence-adultery-india-study/ (Accessed: November 25, 2022).

3-Yearr (no date) Joseph Shine vs. Union of India. Available at: https://privacylibrary.ccgnlud.org/case/joseph-shine-vs-union-of-india (Accessed: November 25, 2022).

 

[4]Section 497 in the Indian Penal Code - Indian Kanoon (no date). Available at: https://indiankanoon.org/doc/1833006/ (Accessed: November 24, 2022).

[5]Section 198 in the code of criminal procedure, 1973 - Indian kanoon (no date). Available at: https://indiankanoon.org/doc/854390/ (Accessed: November 24, 2022).

 

[6]Lawcirca (2020) Joseph Shine vs. Union of India case analysis(adultery no longer a criminal offence), Law Circa. Available at: https://lawcirca.com/joseph-shine-vs-union-of-india-case-analysisadultery-no-longer-a-criminal-offence/ (Accessed: November 25, 2022).

[7]Decriminalisation of adultery (2022) Supreme Court Observer. Available at: https://www.scobserver.in/cases/joseph-shine-v-union-of-india-decriminalisation-of-adultery-background/#:~:text=Joseph%20Shine%2C%20a%20non%2Dresident,the%20Criminal%20Procedure%20Code%2C%201973. (Accessed: November 25, 2022).

 

[8]Network, L.I. (2022) Joseph Shine vs Union of India, Law Insider India. Available at: https://www.lawinsider.in/judgment/joseph-shine-vs-union-of-india (Accessed: November 25, 2022).