Author: Gopika Karunakaran a student at Government law college, Vellore.
Abstract:
The case of Joseph Shine v. Union of India (2018) addressed the constitutionality of Section 497 of the Indian Penal Code, which criminalized adultery. This provision was criticized for being gender-biased, as only men could be prosecuted, while women were treated as passive participants. Joseph Shine challenged the law, arguing it violated fundamental rights under Articles 14, 15, and 21 of the Indian Constitution. The Supreme Court ruled the law unconstitutional, stating it perpetuated gender stereotypes and infringed on women’s dignity, liberty, and privacy. The Court decriminalized adultery, emphasizing sexual autonomy, equality, and personal rights, marking a significant step for gender equality in India.
IN THE HON’BLE SUPREME COURT OF INDIA
Citation: AIR 2018 SC 4898
Date of Judgement: 27 September, 2018
Judge’s Bench: Chief Justice Dipak Misra and 4 others.
Case Type: Writ Petition
Petitioner: Joseph Shine
Respondent: Union of India
Introduction:
Adultery in India was associated with patriarchy and male chauvinism. This offence holds a man criminally accountable if he has sexual intercourse with another man’s wife. And if the husband agrees or connives to such an act, it is no longer considered adultery. A woman has no rights if her husband commits adultery. Adultery was considered a bad behaviour in antiquity, whether committed by a married man or woman. In India, adultery is treated as a victim who has been lured by a man to commit such an act, rather than a crime. This law violates our constitutional principles, such as equality, non discrimination, the freedom to live with dignity, and so on. Adultery has been declared illegal in over 60 nations, including South Korea, South Africa, Uganda, and Japan, due to gender discrimination and a violation of the right to privacy. Even Lord Macaulay, the architect of the penal code, objected to its inclusion as a crime, arguing that it should be left as a civil wrong. The law evolves over time, and several recent decisions have broadened the scope of fundamental rights in accordance with evolving society ideals and expanded individual liberty. Improving social and moral circumstances. The law evolves over time, and several recent decisions have broadened the scope of fundamental rights in accordance with evolving society ideals and expanded individual liberty. This decision joins them in making history by overturning a 158-year-old legislation that has lost relevance due to changing social and moral conditions.
Facts:
In the case of Joseph Shine vs Union of India, Joseph Shine, the complaint, is an Indian hotelier who lives in Italy and is not a resident of Kerala. A close friend of the petitioner in Kerala killed himself after a female co-worker cruelly and falsely accused him of rape. According to reports, this prompted the petitioner to file a writ petition under Article 32, contesting the constitutionality of Section 198(2) of the Code of Criminal Procedure 1973 (CrPC), which stated that the husband of an adulterous accused person would be the only person considered to have been harmed by the commission of an offense under Section 497 or Section 498 of the Indian Penal Code. These sections violate the rights granted to all Indian citizens under Articles 14, 15, and 21 of the Constitution. He contended that because we believe in equality under Article 14 of the Indian Constitution, such clauses violate equality, are hazardous weapons, and are gender prejudiced.
Historical background:
- Section 497 of the Indian Penal Code (IPC), which criminalized adultery, was introduced in 1860 during British colonial administration in India. The first Law Commission, directed by Lord Macaulay, drafted the IPC to establish a consistent set of laws for British-controlled India. – Adultery, as criminalized by Section 497, was viewed through the lens of Victorian morality. The law reflected the then-prevailing patriarchal ideas, in which a woman’s sexual autonomy was denied and she was regarded her husband’s property.
- Provisions of Section 497:The law made it illegal for a man to have sexual intercourse with a woman who was married to another man without the agreement of her husband. However, the woman who committed the adulterous conduct was neither prosecuted or punished under the law. The law essentially considered adultery as a property dispute between husbands, with the adulterer (the man) penalized but the wife, even if she was a consenting participant, not held accountable. This resulted in an inherent gender imbalance, with men perceived as active actors and women as passive recipients of the male’s efforts.
- Gender Biases in the Law – Sexist Assumptions: The legislation was based on the concept that the husband owned the wife, and that any violation of this ownership, such as adultery, would impair the husband’s dignity and reputation. In this setting, women were viewed as lacking agency and hence excluded from legal accountability in the same way that males were. – The prohibition of adultery under Section 497 ignored the notion that a woman may have her own autonomy and be equally liable for such acts. This image reinforced preconceptions that women lacked sexual agency or freedom and were legally controlled by their husbands.
- Cultural context: – The Victorian era witnessed stringent moral laws governing marriage and sexual behaviour. The British colonial authority imposed these norms, which reflect a patriarchal perspective of women’s duties in society. Such norms were incorporated into Indian legal systems. – At the time of the law’s implementation, marriage was viewed as a social contract or patriarchal institution rather than a partnership founded on mutual consent. The law sought to defend the integrity of marriage and prohibit adultery, but it also devalued women’s rights.
Issue:
- Is Article 14’s provision against adultery arbitrary and discriminatory?
- Is Section 497 of the IPC constitutionally lawful or unconstitutional.
- Whether the provision for adultery promotes the stereotype of women as men’s property and discriminates on a gender basis under Article 15, which states that if the spouse consents to such an act, it is no longer considered an offence?
- Is denying a woman’s sexual autonomy and freedom to self-determination harmful to her dignity?
- Does criminalizing adultery constitute a legal intrusion into a person’s private life?
- Should adultery laws be gender-neutral? 7.
- Should the offender’s wife be able to submit a complaint against her husband for violating the sanctity of their marriage?
Contentions:
By The Petitioner:
1.The Counsel for the Petitioner outlined numerous sections of Section 497 that appeared to violate fundamental rights, claiming that the law was enacted during the British era and has no relevance in present times.
2. The attorney also claimed that Sections 497 and 198(2) of the CrPC violated Article 14 of the Constitution, which talks about equality before the law.
3. The petitioner’s attorney argued that the section criminalizes adultery only on the basis of gender, which has no rational nexus to object to being attained. The wife’s consent is irrelevant; hence, it breaches Article 14 of the constitution.
4.The petitioner stated that the regulations violated fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution since they were paternalistic and arbitrary. It was argued that because sexual intercourse was a reciprocal and consensual act for both partners, neither should be exempt from culpability.
5. The Petitioner also claimed that Section 497 of the IPC violated the basic right to privacy guaranteed by Article 21, because choosing an intimate partner lay fully within the realm of sexual liberty. It was argued that each individual (married or not; male or woman) had an unrestricted right to engage in sexual intercourse outside of his or her marital engagement.
6. It was maintained that the law punishes males for adultery but not women. A woman could not make a complaint against her husband for adultery under the Section since there was no legal provision for doing so.
7. He further said that women were treated as objects under this rule, as the conduct was ‘illegal’ depending on the husband’s consent or lack thereof.
By the respondent:
1.The respondents’ counsel asserted that adultery is an offense, that having sexual encounters outside of marriage disrupts family relationships, and that deterrence should exist to maintain the sanctity of marriage.
2.The respondents believe that adultery harms the marriage, children, and the morality of society as a whole. The lawyer further noted that adultery is a morally unacceptable crime in society, and all violators must face a penalty. It is a crime done by an outsider with full knowledge that undermines the sacredness of marriage and family.
3.The provision’s prejudice is mitigated by Article 15(3), which grants the state the authority to enact special legislation for women and children.
4.The respondent’s lawyer claimed that such a conduct would violate society’s morality and cause harm to its members, hence it should be punished and regarded an offense.
5. The attorney further maintained that the Right to Privacy and Personal Liberty guaranteed by Article 21 of the Indian Constitution was not absolute and that there were legitimate constraints when the public interest was at risk. The Right to Privacy provision does not safeguard an individual’s privacy when engaging in sexual intercourse with another married person outside the context of his or her marriage.
6.The attorney further contended that Section 497 was permissible as a type of affirmative action that benefited women.
7.Section 497 is truly operating as a safeguard for society against such immoral action that would offend the institution of marriage; thus, it should not be overturned.
8.The respondent’s attorney urged that the court strike out the unlawful portion while leaving the provision intact.
Judgement:
In this important judgment, the Supreme Court ruled that Section 497 was unconstitutional and violated Articles 14, 15, and 21 of the Indian Constitution. It also claimed that Section 198(2) of the CrPC was unconstitutional as it related to Section 497 of the IPC. This decision overturned a number of previous decisions that criminalised adultery. The Supreme Court ruled that Section 497 was outdated and constitutionally unlawful since it deprived a woman of her liberty, dignity, and privacy. The Court believed that such a Section breached a woman’s right to life and personal liberty by embracing the notion that marriage undermined actual equality by penalizing a gender-based approach to a man and a woman’s relationship. The Court also noted that focusing on seeking consent from the spouse implied subordination of the woman. The Court reaffirmed sexual privacy as a natural right guaranteed by the Constitution. The Court also determined that Section 497 neglected substantive equality by stating that women were not equal participants in a marriage and were incapable of agreeing to any sexual activity.
The Court also referred to the legal system in which women were treated as sexual property of their husbands. Thus, this section violated Article 14. The Bench further concluded that this Section was prejudiced because it concentrated on one gender specifically and violated the norms of Article 15. Furthermore, the Court argued that Article 21 violated women’s constitutional safeguards and fundamental rights to dignity, liberty, privacy, and sexual autonomy.
Furthermore, the Court stated that adultery remained a civil wrong and one of the grounds for divorce, despite the fact that it was now decriminalized. The Court further stated that criminal offenses were committed against society as a whole, however adultery fell within the category of personal affairs and was not considered a crime against society. While viewing adultery as a crime, the Court ruled that the state should not interfere with people’s personal lives and that husband and wife should be allowed to reach a consensus decision based on their personal preferences and choices.
Justice D. Mishra (for himself and Justice A.M. Khanwilkar) argued that treating adultery as an offense violated the absolute privacy of the marriage domain. He stated that adultery is distinct from other matrimonial issues such as dowry demand, domestic violence, sending someone to jail for failure to pay maintenance, or filing a suit for a second marriage, as the latter set of offences is intended to serve a variety of other matrimonial-related purposes. In his perspective, criminalizing adultery violated two components of Article 21. In a marriage, both spouses value one other’s dignity and privacy.
Furthermore, Justice D.Y. Chandrachud emphasized how adultery affected the right to privacy by citing US Supreme Court precedent. He emphasized that misogyny and patriarchal attitudes about sexual control of women have no place in our constitutional order, which values an individual’s dignity and autonomy. Referring to the case of Navtej Singh Johar v. Union of India (AIR 2018 SC 4321), he discussed the significance of sexual autonomy as an aspect of individual liberty, highlighting the indignity suffered by an individual when “acts within their personal sphere” were criminalized on the basis of regressive social attitudes, and emphasising that the right to sexual privacy was a natural right, which was crucial to liberty and dignity.
Furthermore, Justice D.Y. Chandrachud cited the case of K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1), emphasizing that the provision must reflect women’s status as equal parties in the institution of marriage, entitled to constitutional guarantees of privacy and dignity, and that a life of dignity entailed protecting the “inner recesses of the human personality” from “unwanted intrusion”. His decision emphasized on the importance of sexual autonomy as a value essential to life and personal liberty under Article 21. His decision emphasized how Section 497 deprived women of their sexual freedom, autonomy, dignity, and privacy.
Furthermore, Justice Indu Malhotra believed that adultery should be considered a civil wrong, as the freedom to engage in consensual sexual behaviour outside of marriage does not provide protection under Article 21. However, she believes that a person’s ability to make sexual choices in the most intimate places of life should be protected from public criticism through criminal consequence. As a result, she decided that Section 497 did not meet Article 21’s three-fold criteria for invasion of privacy, as established in the Puttuswamy case.
Conclusion:
Section 497 of the Indian Penal Code (IPC) is declared unconstitutional because it lacks a determining principle for criminalizing consensual sexual activity, violates Article 14 of the Constitution, relies on gender stereotypes, and denies constitutional guarantees of dignity, liberty, privacy, and sexual autonomy. Additionally, Section 198 of the CrPC, which deals with the procedure for filing an adultery case, is unlawful. The decisions in Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India (UOI) and Others, MANU/SC/0562/1988, were overturned.
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