Detailed study on the case of Joseph Shine v. Union of India-:
Joseph Shine v. Union of India
Citation : AIR 2018 SCC 39 CRI LJI W.P. No. 194 of 2017
Date of the decision: September 27 ,2018
Court : Supreme court of India
Bench : 5 judges
(Then) Cheif justice of India ,Dipak Mishra
Rohinton Fali Nirman
A.M. Khanwilkar
D.Y. Chandrachud
Indu Malhotra
Jurisdiction: Criminal Original Jurisdiction
Petitioner: Josheph Shine
Respondent : Union of India
Abstract -:
In this case a very landmark judgement was given about Decriminalising adultery from laws of India this law was 158 year old victorian morality law. Also in this case the section 497 of Indian penal code ,1860 that dipicts adultry as a crime and section 198 (2) of Criminal Procedure Code ,1973 which depicts that only husband has a right to file complaint in case of adultry.
Section 497 of INDIAN PENAL CODE,1860
Gives a punishment of 5 years or less or fine or both to the man who does any sexual intercourse with any woman who is married to any other person and this is known to the man, provided that there must be no permission given to that man by the husband of the woman,this intercourse must not amount to rape, this offence was adultry and wife was given no punishment at all .
This was non-cognizable, bailable and non-compoundable in nature.
This was triable by Judicial Magistrate first class.
Section 198(2) of Criminal procedural code ,1973
As per the section only husband of women is treated to be agreed by any offence under section force 97 and 498 of Indian penal code
means Court cannot take cognizance under these section until and unless any complaint is filed by the husband of that women.
Observations -:
In this case this was observe that there are ill- effects to the married life if any of the spouse either husband or wife does the act of adultery with any third person but it cannot be leagally wrong it can be morally wrong, So court left the decision on the parties of marriage either husband or wife of any of the spouse who has right to take decision about the further proceeding whether to take divorce or live as it is or anything else,the aggrieved party has given more rights in comparison to the accused ones so has to decide for their future and well being all the criminal sanctions on the parties are severed as it was believed to be useless to impose them with any criminal charge.
The question arised in this case why only husband should be given a right to file complaint in case of adultery?
The complaint filling process by only husband of the woman who is involved in adultry .was not observed as justice serving. So this was also repealed and section 198( 2 ) was also repealed.
In the case of adultery the male and female both were involved and but the punishment was given to only male ,is this justified by anyway? when the crime of adultery has been committed ,and both male and female are involved why only male should get punishment? And the betrayal is done by wife to the husband ,why third person is getting punishment after all these questions. The adultery was repealed to be a crime and section 497 of IPC was decriminalised although adultry is not totally truck away from the Indian laws. It is today also a ground for divorce, the aggrievance of party decides maintainance if there is a case of adultry for divorce.
Violation of fundamental rights-:
The question arises do these repealed lwas violate any fundamental rights? The answer is yes , these laws violated some of the fundamental rights these violations were observed after so many years of adoption of the Constitution ,that too not by sou moto of the court ,but by the petition file by the Joseph Shine in the case of Joseph Shine v. Union of India .
In this case mainly two issues were raised that were-:
1. Abolishion of section 497 and Decriminalisation of the adultery as a crime.
2. Abolition of section 198(2) as a right.
and the constitution validity both were challenge.
The fundamental rights violated under these previous crimes are described in brief -:
Article 14 :
The article 14 was found to be violated in this case as these laws were against the right to equality the section 497 was giving punishments only to males while the females, that is wives of the aggreived persons were also involved in the cases of adultery. The punishment must be equal for both as the offence for both is also equal or there must be no punishment for both of them .
So the court adopted to give no punishment to both of them ,male and female involved in the adultery as this makes no sense to give any punishment to any person who is involved is such intercourse with their free consent.
Article 15 :
The article 15 is found to be voilated in this case as section 198 (2) discriminate against the women ,this law do not treat them equal to men which is clear violation of the article 15, this law was discriminating on the ground of sex as in this law it is clearly given that the aggrieved person can complaint, then only the cognizance of the case would be taken, there was no right to complaint for the women in the case of adultry As given in the law and clear right to equality was seem to be voilated in these laws .
Article 21 :
The article 21 wa also found to voilated in this case as it was against the right to personal liberty. It is the personal liberty of person to have sexual intercourse with any other person with the free consent of both,if both partners are in free will for such intercourse then to restrict this is a clear violation of right to personal liberty, both of the male and female are not to be given any punishment in case of adultery which was later given by this judgement.
Hence in this case it was resulted that these laws were unconstitutional, so the court declared them as null and void .
However adultery today also is a ground for divorce, if any of the spouse is an adultry which means having sexual intercourse with any person other than the spouse ,if this offence is committed, then this is a ground for divorce on the option of the party who is aggrieved, as given in section 13 (a)of Hindu Marriage Act, 1955 ;moreover as per maintenance act if ground for divorce is adultry then the aggrieviance of the party will decide the maintenance that is maintenance for wife would be less if she is in adultery and maintainance of wife would be more if the husband is committing adultery.
Impacts of this case on the society -:
Adultery has played a vital role in our society. It has affected our society in many ways being a Landmark case of adultery Joseph Shine v. Union of India has decriminalised adultery which has many positive and negative impacts on the society which are given as follows :
Positive impacts –
Gender stereotypes:
This case has broken the gender stereotypes of the society as it has given both husband and wife equal status ,where wife has been considered as property of husband in earlier views . It is not done anymore ,wife has a free will to be in relationship with the person she chooses to live , and can live with personal liberty.
Substantive equality :
After this case men and women both got a substantive equality for no punishment to any of the partner involved in adultry would be given as this gender biased law which earlier allowed punishment to only male of offenders has been repealed by this case. The important aspects of personal identification is sexual autonomy and human sexuality as given in this case.
Protective discrimination :
This case unfolded a protective discrimination against the spouse who is involved in adultery to the aggrieved sopouse ,as the adultry is the ground for divorce at option of the aggreived spouse. The marriage would be dissolved is adultry is proven as given in section 13 (a) this discrimination is necessary to be given to the aggrieved spouse.
Protection of fundamental rights :
As earlier discussed the fundamental rights are protected which were earlier not recognised by these gender biased adultry laws . This case has save the article 14 15 and 21 from getting violated ,which guaranteed equality ,
non discrimination and protection of life and personal liberty respectively. The main reason to repeal this rule was that it was arbitrary, anarchist and paternalistic . Although this was decided in 2023 that the laws repealed will continued to be applied on the members of armed forces.
Privacy upheld :
This case upheld privacy of women along with their dignity and autonomy in the case, it was declared that decriminalisation of adultery would held privacy of both husband and wife , this is very sensitive matter between husband and wife and a criminal case would not protect their privacy as the criminal case would not prevent the matter to be known to society , despite of which adultry is a ground for divorce which would remain private until any of the spouces discloses it to society.
Negative impacts –
Morally wrong :
Above all the arguments in the favour of a decriminalisation of adultery from Indian laws. It is but obvious fact that this is a morally wrong act in nature ,means being adultery is an arbitrary act which one does with their full will and concent it is morally wrong and is also against the earlier laws of India which considered this as a sin , not only commission of adultry but also a thought to committ it was considered a sin .
Increased cases :
After the decriminalisation of adultery from Indian laws there has been an increment in the cases of adultry, witnessed by our Indian justice system, which are reported in the cases of divorce. Some of which are still not reported and in that too there are many in which the other spouse who is aggrieved party is unaware of their partner to be the abettor of adultry, which is very shameful for our country’s judicial system.
Weakening of matrimonial relationships :
After the decriminalisation of adultery the matrimonial relationships are weakened in the society as adultry has became a trend in the society, as there is no fear of punishment in the abettor which has resulted into depleting trust and weakening of the matrimonial relations ,which can also decrease rate of marriage in our country
Conclusion-:
In the *Joseph Shine v. Union of India* case of 2018, the Supreme Court of India decriminalized adultery by quashing Section 497 of the Indian Penal Code. The opinion parsed the provision in attenuating terms under Articles 14 (the right to equality), 15 (non-discrimination), and 21 (the right to life and personal liberty), considered it as violating fundamental rights. It was further held that the law continued to perpetuate among men an idea of gender inequality, seeing women as property and motivated by antiquated patriarchal thought. The judgment cited the fundamental right to privacy, personal liberty, and dignity while holding that adultery could not be treated as criminally liable but only as one of the reasons for divorce in personal law.
But as per my views there must be some bar on the decriminalisation to counter with the problems of adultry in the society the society today in India is not ready for this decriminalisation to avoid any chaos in the society and to protect it from the barbarism so as to ensure a civil society . Like there has been a clarification made in 2023 that this decriminalisation do not include member of armed forces in it .
References
Om Srivastava
B.com. LL.B.
Teerthanker Mahaveer University
