“JOSEPH SHIINE V.

UNION OF INDIA”

In the supreme court of India

Criminal original Jurisdiction

Case no.
Write petition (criminal) no. 194 of 2017
Petitioner
Joseph Shine
Respondent
Union of India
Date of Judgment
Decided on July 27th, 2018
Bench
Deepak Mishra, Justice A.M Khanwilkar, Justice D.Y Chandrachud, Justice Indu
Malhotra, and, justice R.F. Nariman.

Abstract
“The legal subordination of one sex to another is wrong in itself, and now one of
the chief hindrances to human improvement; and that it ought to be replaced by a
system of perfect quality, admitting no power and privilege on the one side, nor
disability on the other”

The court noted this passage of john stuart Mill, British philosopher and political
economist, while commencing upon the task of examining section 497 IPC and
198 CrPC with their constitutional validity. Section 497 of the IPC is prima Facie
unconstitutional on the ground that it discriminates against men and violates
Article 14, 25 and 21 of the constitution of India. This is public Interest Litigation.
This provision was challenged before this Hon’ble court on three occasions, firstly
in Yusuf Abdul Aziz v. State of Bombay, Secondly in Sowmithri Vishnu v, Union
of India and finally in Revathi v. Union of India.

Facts of the case

Joseph Shine, a non-resident from the state of Kerala, filed a PIL under Article 32
of the constitution. The petition challenged the constitutionally of the offence of
the adultery under section 497 of the IPC and section 198(2) of the CrPC.

Section 497 of IPC -: “whoever has the 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 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 extent to five year, or
with fine, or with both. In such cases the wife shall not be punishable as an
abettor”

Section 198(2) of CrPC -: It specifies how a complaint may file charges for the
charges for offences committed under section 497 and 498 of IPC. Section 198(2)
CrPC specified that only the husband may file a complaint about the offence of
adultery.

The court reviewed the correctness of the precedents-1) Ysuf Abdul Aziz v. state
of Bombay, 2) Sowmithri Vishnu v. Union of India, 3) Revathi v.Union of India,
which have in the past upheld section 497 as constitutionally valid. The centre field
an affidavit in the month of July arguing that diluting adultery in any for will
impact the ‘sanctity of marriage’. The five-judge bench started hearing the matter
from 1st August 2018 onwards and finally on September, the bench delivered its
judgment, decriminalizing adultery.

Issue Raised
1. Whether sec 497 of the Indian penal code, 1860 is unconstitutional being
unjust, illegal, Arbitrary and violation of fundamental rights.
2. Whether sec 198(2) of code of criminal procedure, 1973 is unconstitutional
being unjust, illegal and violation of fundamental rights.
 3. Women are treated as an object under the adultery law because according to
section 497 if the husband agrees, the act is not a crime.

Observation by court
It was observed that thinking of adultery from the point of criminality would be a
retrograde step. This court has travelled on the path of transformative ad
constitutionalism and, therefore, it is absolutely inappropriate to sit in a time
machine to a different era where the machine moves on the path of regression.
Hence, to treat adultery as a crime would be unwarranted in eyes of law.

Judgment by the court

The main Judgment was delivered by the chief Justice Mishra and Justice
Khanwilkar while separate and concurring opinions dwelling on the range of issues
from the antiquity of adultery to the sexual and individual autonomy interspersed
with a legal, historical and literacy anecdotes were delivered by Justice D.Y.
Chandrachud, Nariman and Indu Malhotra. “A constitutional court cannot remain
entrenched in precedent for the controversy relates to the lives of human beings
who transcendentally grow” observed the lead judgment. All the judges concurred
that the section had an element of “Romantic paternalism” wherein it reduced the
woman to a chattel. Section 487 and the concept of adultery, circumscribed as it
was too monogamous relationships, was curiously silent on extramarital
relationships between a married man and an unmarried woman or widow. A man
was libel under certain conditions and not under another set of conditions. It was
therefore, arbitrary and malifidely irrational. In any case, there needs to be
classification based on an intelligible differentia which distinguish between person
or things that are grouped together and the said differentia must have a rational
nexus with the object sought to be achieved by the legal provision. In any event, it
is pointed out in the judgment that theoretically punishing adultery would not act
as guarantee to save a marriage. It said adultery was often not the cause of an
unhappy marriage but a result of it. Justice Nariman held that used in liberal
perspective the law can enhance democratic values and that law and court had a
responsibility in the application and conferring of constitutional rights. While
testing the validity of section 497 “we also tested the constitutionality of moral and
societal regulation of women and their intimate lives through the law” he observed.
The judgment held the following things –

 SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY INVALID.

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds
the encroachment on her right to life and personal liberty by adopting a notion of
marriage which subverts true equality. Equality is subverted by lending the
sanctions of the penal code to a gender-based approach to the relationship of a man
and a woman. Sexual autonomy is a value which is an integral part and falls within
the ambit of personal liberty under Article 21 of the Indian Constitution. Along
with other things, it is very important to recognize the expectations one has from a
relationship and to acknowledge them. One of these expectations is that each will
provide the same element of companionship and respect of choices. Respect for
sexual autonomy is established only when both the spouses treat each other with
equality and dignity.

This section is a denial of substantive equality in that it reinforces the notion that
women are unequal participants in a marriage; incapable of freely consenting to a
sexual act in a legal order which regards them as the sexual property of their
spouse.

 SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE.

A crime is something which is committed on the society as a whole, while adultery

is more of a personal issue. Treating adultery as crime would tantamount to the
state entering into real private realm. Adultery doesn’t fit into the concept of the
crime as that would otherwise invade the extreme privacy sphere of a marriage.
However, it continues to stand as a civil wrong and grounds for divorce. What
happens after adultery is committed should be left to the husband and wife to
decide as it is something which should only involve their personal discretion. It is
difficult for the court to construe the different circumstances which have led them
to this stage. Hence, declaring adultery as a crime would somehow creep injustice
into the system.
  A HUSBAND IS NOT THE MASTER OF HIS WIFE.

The judgment places reliance on the fact that women should not be considered as
the property of their husbands or fathers, for that matter, anymore. They have an
equal status in society and should be given every opportunity to put their stance
forward.

 SECTION 497 IS ARBITRARY:

Throughout the judgment, it was pointed out that the nature of Section 497 is
arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can
give consent to let his wife have an affair with someone else. Rather, the judgment
points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife.
Moreover, the wife cannot file a complaint against her husband or his lover. There
are no provisions to deal with a married man having an affair with an unmarried
woman or a widow

Analysis
It is seen that the most of the progressive nations across the world have done away
with the criminal element of adultery. The matter being of extremely private nature
may be a civil wrong inviting a matrimonial claim or claim in torts. It is important
to notice that the situation involving adultery may rise due to unhappy matrimonial
life. It would be to leave the parties in their private sphere, which of course is a
fundamental right, giving them liberty to proceed on the basis of a civil wrong, if
they so like.

However one of the most important factor arise, that is, adultery is no tan accepted
norm in the society till now. The morale perceptions of the society will not accept
adultery in its social fabric. However constitutional morality requires all the
citizens to be the basic constitution. The rule of law happens to be the basic feature
of constitution. Thus the society has to slowly adapt to the change in the norms as
laid down by the court.
In the instant case, Supreme Court struck down Section 497 IPC. With a single
stroke of a pen, the Court has added its bit to endanger the institution of marriage.
Winds have been cast to dilute the institution upon which the strong foundation of
the Indian Society rests. The deterrence effect has been outrightly blown. This
cessation will lead to rapid profiling in the crimes related to adultery. With
absolute rights come absolute consequences. Hence, this verdict can lead to sexual
anarchy. Adultery is no longer a criminal offence now. It is just a civil wrong for
which divorce is the remedy. The instant consequences will be that the suicide rates
in marital relationships will increase now and then prosecution under Section 306
relating to abetment of suicide will take place.

It would have been balanced if the section was amended instead of being struck
down. The exclusion of women in this provision “delegitimizes the sexuality of
women by careful erasure of it”. As rightly cited by Justice Indu Malhotra in her
judgment that “Women are no longer invisible to law, and they no longer live in
the shadows of their husbands”.

Conclusion
According to the court, adultery as crime India would face the frown of articles 14
and 21 of constitution and thinking it as a crime would be a retrograde step. Thus
the court decided to take the path of transformative constitutionalism and treating
Adultery as a crime was unwarranted in law. The court held that the section 497 of
IPC was unconstitutional and that adultery would not be treated as an offence ad it
also declared the section 198 of CrPC unconstitutional. Consequently the decisions
in the Sowmithri Vishnu and V. Revathi and any other judgment regarding
adultery were overruled.

The debate on the law of adultery in India has proceeded in two fixed, unmoving
directions: while the Court justifies the provisions by implying that women are not
fit to be given agency, men’s rights activists (vengefully) demand that the
provision be reassessed to remove the woman’s immunity from prosecution. Both
are excessively patriarchal ways of looking at the situation. The reserved judgment
has the option of departing from these lines of argumentation and focusing on the
main issue: the disempowerment of women in criminal law.
It must be kept in mind that the deletion of these provisions does not mean that
there are no legal consequences for engaging in adultery. These consequences need
not be criminal, and a remedy may be found in civil law, where adultery already
has a place . It is a ground for divorce in personal laws. Such an approach is also in
conformity with the right to privacy and does not require the State to expend its
resources. Cruelty as under Section 498A, along with the definition of domestic
violence under the Domestic Violence Act, 2005 can cover the mental trauma
caused to a woman by a husband’s adulterous relationship.