Decriminalization of Adultery: Brief Analysis of Joseph Shine V. Union of India [2018 SCC Online SC 1676]
Adultery was an offense under the Indian Penal code, 1860 as well as a ground for divorce under the Hindu Marriage Act, 1955. But on 27th September 2018 adultery was decriminalized from the Indian Penal Code, 1860 but it is still a ground to take a divorce under the Hindu Law.
Table of Content:
- Introduction
- Law of Adultery in India
- Decriminalization of Adultery
- Analysis of Joseph Shine Case
- Conclusion
Introduction
The term Adultery is derived from the Latin word ‘Adulterium’ which means a man has sexual intercourse with a woman who is not her spouse. To indulge in adultery it is necessary the man and woman must be married. In other words, if a married man has sexual intercourse with a woman who is not her wife and also the husband of the woman involved in such an act does not know about the same.
Adultery was an offense under the Indian Penal code, 1860 as well as a ground for divorce under the Hindu Marriage Act, 1955. But on 27th September 2018 adultery was decriminalized from the Indian Penal Code, 1860 but it is still a ground to take a divorce under the Hindu Law.
Law of adultery in India
Section 497 IPC defined the offense of adultery and prescribes the punishment for the man involved in the act with imprisonment that is extended up to five years or fine or with both. But this section doesn’t define or prescribe any punishment for the woman who is also involved in such activities. Even the woman is also not liable as an abettor. It is exclusively provided under the act that the offense of adultery doesn’t amount to rape as it involves the consent of the woman involved and also the consent of the women cannot become a ground of defense under it. Despite this, as the woman is not held liable for the offense of adultery similarly there is no remedy available to the woman if her husband cheats on her by indulging in the act of adultery except to take divorce under the Hindu marriage act, 1860 under section 13. In Yusuf Abdul Aziz v. State of Bombay [ 1954 AIR 321], the constitutional validity of section 497 of the Indian Penal Code, 1860 was upheld and it was also held that the state is constitutionally authorized to make any provision for the betterment of children and women under Article 15(3) of the Constitution of India.
Decriminalization of Adultery
The offense of adultery was decriminalized in 2018, in the case of Joseph Shine v. Union of India. Earlier in Yusuf Abdul Aziz v. State of Bombay [1954 AIR 321] as discussed earlier the constitutional validity of section 497 was upheld.
Further, in Revathi v. Union of India [1988 AIR 835] it was held that just because this section doesn’t empower the wife of the accused man to prosecute him and also doesn’t empower the husband of the accused wife to prosecute her, it cannot be decriminalized. But in Joseph Shine vs Union of India, this section of IPC was struck down by the five judge bench of the Supreme Court along with section 198(2) of the Code of Criminal Procedure, 1973.
Again in Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 13 a petition was filed in the apex court challenging the validity of section 497 of the Indian Penal Code, challenging the validity of section 497 of the Indian Penal Code, 1863 by contending that this section discriminates on the basis of gender or sex and hence it was claimed that the women involved should also be punished for the same but the apex court held that extending the scope of a provision is power belongs to the legislature and hence court cannot do anything in this regard and upheld the validity of this section.
The English case of R v. R lord Keith held that in today’s scenario marriage is a civil contract only where two people are involved just like a partnership and hence women are no more the property of men.
Also, in Voluntary Health Association of Punjab v. Union of India J. Deepak Mishra said that women are considered to be a better half of a man and therefore be an equal partner in the institution of marriage and hence she would also be treated as equal to a man.
Analysis of Joseph Shine Case
Background
Joseph Shine, the petitioner, filed a writ petition in the supreme court under Article 32 of the constitution of India by challenging the constitutional validity of section 497 of the Indian Penal Code, 1860 read with section 198 of the Code of Criminal Procedure, 1973 as these sections are violative of our Fundamental Rights enshrined in Articles 14, 15, and 21 of the
Constitution of India. In the history of India, this was the first writ petition filed in this context. The petitioner, Joseph Shine contended that the provision of section 497 is gender biased provision and accordingly violates the fundamental right of right to equality and also it demolishes the dignity of women.
Issues Raised
- Whether the provision of section 497 of IPC read with Section 198 of CrPc is unjust, arbitrary, and unconstitutional?
- Whether it infringes the right to privacy of an individual?
- Whether these provisions encourage the stereotype thought of society that women being the property of men and ultimately gender biased?
Judgment
On 27th September 2018, a five judge bench of the Supreme Court comprised of Deepak Mishra, CJ; Rohinton Nariman J.; DY Chandrachud J.; Indu Malhotra J.; Khanwilkar J. settled all the issues and struck down section 497 of IPC along with section 198(2) of CrPc held these sections as unconstitutional as they are violative of Articles 14,15 and 21.
The court held:
- The provision laid under section 497 discriminates between a man and woman as in the opinion of the court it depicts the stereotype thought that woman is a property of a man as this doesn’t punish the women involved not even as an abettor. And this thought infringes the right conferred in Article 15 (3) which was inserted to protect the women’s interest from this paterihatical mindset of the society. The bench also gives the reference of the case Government of Andhra Pradesh vs P.B. Vijaykumar [(1995) 4 SCC 520].
- The bench also stated that a crime is committed against society but if we see the provision of section 497 then we can conclude that this involves the privacy of an individual. Though there are other provisions related to the crime or offense committed in the marriage such as section 304- B of Indian Penal Code, 1860 which provides the punishment for the dowry death or the provision which punishes the husband and his relative for ill-treating his wife. Besides that there are many special acts that were enacted by the legislature such as the domestic violence act, etc. but all these issues are related to the concept of marriage that is not a matter of two individuals but to involve in an act of adultery where two rational individuals by their own will or consent indulge in such an act is a private matter and hence if the act would amend and makes woman also liable along with man is also not right as it still violates the right to privacy conferred under the constitution of India.
Hence, the court opined that the act of adultery better is scrapped as a crime and make it a ground of divorce only. Thus based on the above observation the apex court decriminalize the act of adultery and declare section 497 of the Indian Penal Code, 1860 along with section 198 (2) of the Code of Criminal Procedure, 1973 as void. Therefore, with effect from 27th September 2018, the act of adultery solely remains the act of adultery as a ground for divorce under section 13 of the Hindu Marriage Act, 1955, and the accused man cannot be penalized.
Conclusion
The judgment of Joseph Shine v. Union of India is a landmark judgment in the legal history of India. By decriminalizing the act of adultery Hon’ble Supreme Court once again established the supremacy of the Constitution of India. Now, adultery is termed as a civil wrong only and not a criminal one. Also, with this step of the apex court, the court again set an example in the society by upholding the dignity of women and discouraging the stereotype thought of the society that women are chattel of a man that women are not the property of men and it is an individual choice as both the person indulge in such an act are major and can be the best thinker for their interest.