JOSEPH SHINE VS. UNION OF INDIA

 

                               JOSEPH SHINE VS. UNION OF INDIA

JUDGES:

                     The bench constitutes:

Chief Justice Dipak Mishra

Justice A. M. Khanwilkar

Justice R. F. Nariman

JusticeD. Y. Chandrachud

Justice Indu Malhotra

 

INTRODUCTION:

                     Adultery in simple terms can be defined as the extra marital relationships or affairs with other man or woman. In Indian culture it is treated as the sinful act for women but if we see fifty years ago it is normal or even proud for the male members of the family to have the extra marital relationships. If it is a sin both should be treated equally and hence this law and its punishments are the result of male chauvinism. Laws relating to adultery in India was discussed in Section 497 of Indian Penal Code read along with Section 198 of Criminal Procedure Code. While seeing this laws from outside it seems to support women and punish the male alone but deep inside it has the problems for women too. Let us see what the section defines.

 

 

Section 497 of IPC:

                     Adultery- Whoever has sexual intercourse with a person who is 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 punishable with imprisonment of either description for a term which may extend to five year or fine or both.  We can see an example Mr. H is husband and Mrs. W is wife now W has a extra marital relationship with O. Here in this situation O will alone be punished for the crime and W will not. This is violative of Article 14. On the other hand if O has the consent of H and not from W and has the intercourse then he will not be punished because the section clearly defines that ‘without the consent of the husband it will be considered as adultery’ this sentence clearly defines that the women are treated as the dolls in the hand of men community.

PARTIES OF THE CASE:

Petitioner: Joseph Shine

Respondent: Union of India

JUDGEMENT DATE:

                     September 27, 2018.

FACTS OF THE CASE:

                     This case was the result of the Public Interest Litigation filed by the Nonresident Indian who lives in Italy. He is from Kerala. He filed this PIL because his friend in Kerala has committed suicide because his woman co worker has filed a malicious rape charge on him. So he researched this adultery section and filed the PIL for challenging the constitutionality of section 497 read along with section 198 of Crpc which is violative of Articles 14, 15 and 21 of our Indian Constitution.

ISSUES:

a.     Whether Section 497 of IPC is violative of Article 14,15 and 21 of Constitution?

b.    Whether this section is based on the relief of one gender or is it a gender-based law?

c.     Whether this section lowers the dignity and morality of women?

 

ARGUMENTS OR CONTENTIONS OF PARTIES:

Petitioner:

                     The counsel for the petitioner (Joseph Shine) contended that there is violation of Article 14, equality before law. In case of adultery there is no equal rights for men and women. Article 15 deals with the abolition of discrimination, but in adultery it is clear that there is discrimination between male and female and their punishments and Article 15(3) includes the development of women which is also cannot be implemented. According to Article 21, there is right to privacy but there is no privacy in the private matters such as sex for the adult persons. So, article 21 should include the sex between two members who are adults. Here also this section 497 of IPC defines the married woman as the property of his husband, this restricts the relationship of the married woman but not the married man, this section also says that if the relationship with married woman it constitutes to adultery and not the unmarried woman. If a husband have a relationship with a unmarried girl it will not be a criminal offence. These are the clear evidence how the law is discriminate against women.

Respondents:

                     The Counsel for respondent claims that the adultery is crime and offence which will create an impact on society. It will lead to problems to the institution of marriage, family setup, family relations, children of the people involved in the adultery, their spouses and the society as a whole. It will destroy the peaceful life of the married parties and affect the mental health of the victim.

JUDGEMENT:

                     Justice Dipak Mishra contented that the husband is not the owner or master of his wife. Justice Nariman stated that the man is the only person who is getting punishment for the adultery offences, so it is observed no equality between men and women according to articles 14, 15 and 21. Justice Chandarchud stated that after the marriage one woman is not meant to give up her sexual rights and freedom, hence men has this freedom then it is correct to both gender has this. This will be included in Right to privacy of both men and women under article 21 of Indian Constitution. Justice Indu Malhotra stated that, the adultery may be a moral wrong but here they should be together to make decision, so it is considered as the civil wrong. This section 497 is still can be used as the ground for the divorce of marriage. Hence the Supreme Court has struck down the Section 497 of IPC but not on whole. It is amended to be the civil wrong and ground for the divorce.

PRECEDENTS:

n  Yusuf Abdul Aziz Vs. State of Bombay, 1951

n  Soumithri Vishnu Vs. Union of India, 1985

n  Revathi Vs. Union of India, 1988

 

CONCLUSION:

                     The judgement regarding adultery is one of the landmark judgements of our time. This shows that the legal system in India is taking necessary steps to end the laws that treating the women with discrimination. And also shows that the right to privacy should be prevailed between the persons and the court should not interfere with them. This system not only discriminates women from men but also lowers their dignity and morality. Women are treated as the property of her husband and the choices of her life was not made by her and only by husband. The amendment here changed the status of women legally and this is the time that the society should respect her and treat her with equal rights and respect. Its her life her choices!