Joseph Shine vs. Union of India- Case Study

Joseph Shine vs. Union of India Adultery section 497

Joseph Shine vs. Union of India- Case Study

In the Supreme Court of India 
Criminal Original Jurisdiction 
Case No. 
Writ petition (criminal) no. 194 of 2017
Petitioner 
Joseph Shine 
Respondent 
Union of India 
Date of Judgement 
Decided on July 27th, 2018
Bench 
Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and  Justice  
R.F. Nariman.

Authors– Sulagna Dutta, Anushree S. Nair

Introduction

When Adultery walks in, everything worth having walks out.” These words by Woodrow M. Kroll had been the driving force to the legislative intent behind Section 497 of the 108-year-old Indian Penal Code[1], until the Apex Court of Indian Judiciary pronounced decriminalisation of the pre-Constitutional era penal provision of adultery in the eighth month of 2018[2]. The word Adultery traces its origin to a Latin verb Adulterium which means “to corrupt”. The cardinal wodge of Indian legal system was moulded by the British in the pre-colonial era when most of the paramount statutes governing areas of substantial and procedural law were formulated. The penal provision making adultery a crime was too a brainchild of the British. The foundation behind this legislative intention portrays inclination towards the ancient Hindu text of Manusmriti which stated that “If men persist in seeking intimate contact with other men’s wives, the king should brand them with punishments that inspire terror and banish them”. However to adhere to the efflux of time, it is imperative for the Judiciary to strike down laws that confront the progressive flow of constitutional development through legislations that had received the serene approval of the law makers in the past.

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 Often argued to be one of the heavily deliberated pieces of legislation characterised as gender-discriminatory, the adultery law was restricted to holding only a man responsible for having sexual intercourse with the wife of another, without the connivance or consent of the husband. However, the express application of the section did not extend to the concerned woman abettor[3]. The aforementioned was complemented by Section 198 of the procedural criminal law[4], which expounded the meaning of “person aggrieved” by the adulterous relation and the same extended to the husband of the woman or in his absence, any person who cared for her. The Highest Court of Appeal erased this penal backing to the Adultery law by holding the same as unconstitutional. The court expounded the characteristics of Living Constitution by demonstrating the reflective perception associated to expansion and recognition of the ambit of fundamental rights in par with the principle of Equality. The instant prefatory note aims to lay the foundation for this case comment and its aim to analyse and elaborate the observations of the Honourable Court in the instant case of Joseph Shine v. Union of India and Ors.[5]in adverting the constitutional validity of Section 497 of the Indian Penal Code, 1860[6] read with Section 198 of the Code of Criminal Procedure, 1973[7].  The Court therefore decided to scrutinise the instant constitutional assailment to the penal provision of adultery in light of progressive and normative tools of interpretation, the analysis of which has been expounded in the latter part of this paper.

Brief facts of the case:

Joseph Shine was an Italy based business man, who is a non-resident Indian from the State of Kerala filed a Public interest litigation before the Supreme Court of India challenging the constitutional validity of section 497 of Indian Penal Code,1860 and section 198(2) of Criminal Procedure Code,1973.

The prime reason for challenging the constitutional validity of Adultery was traced to husbands being solely prosecuted for extra marital affairs by vengeful wives. A friend of the petitioner, had committed suicide after being falsely charged of rape by a women co-worker, is also one of the primary reasons for challenging the law. The criminal offence of adultery was decriminalised, thus over ruling the judgements Sowmithri Vishnu v. Union of India[8], Yusuf Abdul Aziz v. State of Bombay[9], V Revathi v. Union of India[10]and W Kalyani v. State[11].

Issues raised

Whether constitutional validity of Section 497 of the Indian Penal Code, 1860 read with Section 198(2) of the Code of Criminal Procedure, 1973 is at par with the Constitutional guarantees enshrined under Article 14 and 21 of the Supreme law of the land?

Provisions involved

  1. Section 497 of the Indian Penal Code, 1860which deals with Adultery that reads that 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[12].
  2. Section 198(2) of the Code of Criminal Procedure, 1973 which states that “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 com- mitted may, with the leave of the Court, make a complaint on his behalf.”[13]

Pre-Position of the Law

The decriminalisation of Adultery has been developed by overruling the following precedents that have made alternative observations in this arena of law and have grown in legal interpretation and analysis after the thorough scrutiny of the provision of law and challenging its constitutionality in the court of law.  

         Yusuf Abdul Aziz v. State of Bombay[14]: In the said case, the appellant had been prosecuted under section 497 of IPC for Adultery. In the said case, the counsel for the appellant, after filing a special leave petition under Article 136 of the Indian Constitution raised the following contentions. Whether section 497 was contravening Article 14 and 15 of the constitution, section 497 being an offence committed by a man and in absence of any provision to the contrary the women shall be punishable as a abettor. It was argued by the counsel that the provision under Article 15, which states that the State shall not discriminate, based on sex. The look over in this provision came under Article 15(3) which clearly mentions that nothing shall prevent the State from making Special provisions for women. This provision shall not be used to licence women to commit crimes and become abettors. After consideration, under the coroqum of a 5 bench judge proceeded with an affirmative action under Article 15(3), stating Central Board of Dawoodi Bohra Community v. State of Maharashtra[15] the court held that a coroqum bench of larger is binding on any subsequent bench or coequal strength and upheld the constitutional validity under section 497 of Indian Penal Code, 1860.

Sowmithri Vishnu v. Union of India[16]: In this case, a writ petition under Article 32 challenged the constitutional validity of section 497 before a 3 judge bench. In this case, the petitioner had filed a case against a man, accusing him of entering in to adulterous relationship with his wife. The respondent in a counter claim, challenged the constitutional validity of this section, where the counsel for the respondents contended that as per section 497, it confers upon the husband to prosecute the adulterer. It does not confer, any right to the wife to prosecute the woman, with whom her husband, has committed adultery and does not confer any right to the wife, to prosecute the husband, who has committed adultery with another woman.

      Section 497 does not take consideration of cases, where the husband has extra marital affairs with unmarried women. The submission by the counsel stated clear discrimination on gender inequality, legislative despotism and male chauvinism and violates Article 14 and 15 of the Indian Constitution. The court on studying the arguments held that, the arguments raised extended the ambit of section 497 where both man and woman must be held liable for adultery. This point of contention raised issues where several provisions of law have to be struck down, violating the provisions and constitutionality of the laws. Provision of the wife, given the right to be heard was not mentioned in sec 497, it violated the basic right enshrined under Article 21. Hence, in this case, Section 497 was held valid and men having extra marital affairs with unmarried women were dismissed.

       V. Revathi v. Union of India and Ors[17].: In this case, critically analyses the design of the provision under section 497 of IPC. This case, relied on Sowmithri Vishnu v. Union of India[18]stating that the community punishes an outsider who violates the sanctity of a matrimonial home by developing illicit relationship with the spouse. In this it analyses the provision on how the outsider is punished for disturbing the peace of a matrimonial house but a woman is not punished for the same violating Article 15 where the State shall not discriminate on the basis of sex[19] implicating reverse discrimination. As per section 198(1) and 198 (2) of Criminal Procedure Code, 1973 violates Article 14[20] of the Indian Constitution as it discriminates women in to not prosecuting their husbands. The court in this case held that, the right to prosecute the husband by the wife gets balanced with the husband not able to prosecute the wife for adultery. As per section 497, only the adulterer who is a male can be prosecuted for the offence and hence making section 497 valid.

         W Kalyani v. State through Inspector of Police [21] In this case, the provision of law was under severe criticism, for as it had portrayed gender discrimination at higher levels, making married women the property of her husband. Challenging of the validity of section 497 of IPC and section 198 of Cr.Pc was due to the heavy criticism it received due to, on the ground that only a man could be proceeded against and punished for adultery and the wife could not be punished even as an abettor. This clearly violated the principle of equality enshrined under Article 14 of the Indian Constitution.

Analysis

The affidavit of the petition challenging the constitutional validity of Section 497 and Section 198(2) of the Code of Criminal Procedure, 1973 explicitly contended that married women cannot be exempted from the offence of adultery ad should be considered on an equal footing with male abettors. The Centre on the contrary contended the fear of loss of sanctity in marriages if the penal provision is struck down. The court rendered four separate concurring opinions to the Constitutional assailment in the instant case.

The Apex Court initiated on the note of a prima facie perusal of the penal provision associated to Adultery that reads 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 case the wife shall not be punishable as an abettor”. It went on to condemn the much deliberated principle of gender subordination seen through the words of this provision. While criminal law should be formulated and directed by gender neutrality, this provision was following the realms of societal presumptions that backed the subordination of the wife by the Husband. The Highest Court of Appeal pointed out the stanchion of the legal framework of the offence is lost in cases where the husband consents or connives it. This is where constitutional infraction to the principle of Equal status takes place. Such an archaic approach to legislative pieces are born out of a regressive attitude which in the long-run would stand in the way of human development[22]. Justice Deepak Mishra, the then CJI stated, ‘when the substantive provision goes, the procedural provision has to pave the same path[23].Since it is imperative to uphold the rights accentuated by the Constitution to protect the realm of gender equality, there is enough prerogative for the Judiciary to undertake the responsibility of bringing about the change demanded by progressive interpretation of law. In this regard, the Court retrieved references like ‘legislative despotism” and “romantic paternalism” from the case of Soumithri Vishnu[24] used for contenting the Constitutional validity of Section 497 at par with the principle of equality enshrined under Article 14 and 21[25]. It was also held that while Adultery could be brought under the purview of a civil wrong[26], it can no way be allowed to attract criminal charges[27] which in a way facilitates the subordination of the feminine sex. The same was backed by Justice Indu Malhotra.This landmark judicial pronouncement brought to light the distinction between Section 498A and Section 497 since the former does not involve any privity to the marriage.

  The Court further elaborated on the scope of Section 198(2) that does not include wife in the purview of the word complainant. It was clarified by the Court that the definition of the offence is the primary consideration for determining the qualifiers of prosecution whereas the rights of prosecutors laid down by a statute is the secondary determinant. Since the offence of adultery as defined under Section 497 clearly holds the man as the sole abettor of the offence, the primary consideration is negated by the contemplation of law. Justice Chandrachud expounded the direct Constitutional violations that inferred from the legislative framework of section 497 in terms of Article 14, 15 and 21[28]. The said legislative framework of Section 497 allowed no autonomous powers to the wife and is formulated on a manifestly arbitrary principle of gender subordination. The archaic law had outlived its span and the same propounds to punishing a third-party so as to preserve the proprietary interest of a man in his wife. The fulcrum of the offence is lost in case there is consent or connivance of the Husband backing the illicit relationship of his wife with a third-party. The manifest arbitrariness no way stands the test of Reasonableness and is founded upon a chauvinistic understanding of matriarchal relationships as was pointed out by Justice Nariman in the landmark Judgment.

Decision

The Five-Judge Bench of the Apex Court after close scrutiny of the instant constitutional assailment to the penal provision of adultery in light of progressive and normative tools of interpretation unanimously held that Section 497 of the Indian Penal Code, 1860 does not stand the test of constitutional validity in light of Constitutional Guarantees enshrined under Articles 14, 15 and 21. The instant landmark judicial pronouncement thus overruled the Apex Court’s observations upheld in the cases of Sowmithri Vishnu[29]Vishnu Revathi[30], and Y Abdul Aziz[31].

Conclusion

After critically analysing section 497 of Indian Penal Code, 1860 and section 198 of Criminal Procedure Code, 1973. The authors conclude that, decriminalisation of Adultery was a much requires and awaited judicial pronouncement taking into cognizance the bounds of the changing society and its progressive approach to contemporary ideologies. It is concluded that, the State interfering into the private realm of a marital relationship violates one’s right to privacy[32]. It was rightly observed that Adultery can be a ground for divorce and be considered a civil wrong but cannot attract criminal charges in light of the provisions enshrined under the constitution. The court In view of the changing society, the court took scrutiny of this provision in the context of progressive interpretation and decriminalised the law. Any law that promotes the legal subordination of any gender by the other has reason enough to form a bedrock foundation for a change and the same has been bestowed by the Apex Court in the instant case.

References


[1] Indian Penal Code, 1860, S.497.

[2] Joseph Shine v. Union of India (2018) OnLine SC 1676.

[3] Indian Penal Code, 1860, S.497.

[4] The Code of Criminal Procedure, 1973, S.198(2)

[5]Joseph Shine v. Union of India, (2018) OnLine SC 1676

[6] Indian Penal Code, 1860, S.497

[7] The Code of Criminal Procedure, 1973, S. 198(2)

[8] Sowmithri Vishnu v. Union of India,1985 SCC (Cri) 325

[9] Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC321

[10] V. Revathi v. Union of India and Ors AIR 1988 SC 835

[11] W Kalyani v. State through Inspector of Police, (2012) 1 SCC 358

[12] Indian Penal Code, 1860, S.497

[13] The Code of Criminal Procedure, 1973, S. 198(2)

[14] Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC321

[15] Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673

[16] Sowmithri Vishnu v. Union of India,1985 SCC (Cri) 325

[17] V. Revathi v. Union of India and Ors AIR 1988 SC 835

[18] Sowmithri Vishnu v. Union of India, 1985 SCC (Cri) 325

[19] INDIAN CONSTITUTION, Art.15 cl. 1

[20] INDIAN CONSTITUTION, Art.14, Right to Equality

[21] W Kalyani v. State through Inspector of Police, (2012) 1 SCC 358

[22] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321

[23] Joseph Shine v. Union of India, (2018) OnLine SC 1676

[24] Sowmithri Vishnu v. Union of India,1985 SCC (Cri) 325

[25] Constitution of India; art. 14; art. 21.

[26]Mittal, R. (2004). Adultery: A Ground for Divorce and a Way to Maintenance? Journal of the Indian Law Institute, 46(3), 418-423. Retrieved August 24, 2020, from http://www.jstor.org/stable/43951918

[27] Common cause and Anr. v. Union of India, (2016) 15 SCC 269

[28] Constitution of India; art. 14; art. 21; art. 15.                                                              

[29]Sowmithri Vishnu v. Union of India,1985 SCC (Cri) 325

[30]V. Revathi v. Union of India and Ors AIR 1988 SC 835

[31]Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC321

[32] K.S Puttaswamy v. Union of India, (2019) 1 SCC 1