Joseph Shine V. Union of India

Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary

Case name:Joseph Shine Vs. Union of India 
Case number/Citation:Writ petition (criminal) no. 194 of 2017
Court:Supreme Court of India Civil Original Jurisdiction
Bench:Hon’ble Justice Deepak Misra; Hon’ble Justice A.M.  Khanwilkar; Hon’ble Justice D.Y Chandrachud; Hon’ble Justice Indu Malhotra and Hon’ble Justice R.F. Nariman.
Decided on:July 27th, 2018
Relevant Act/Sections:Indian Penal Code,1860 [S.497] , Article 14, Article 15, Article 21, Section 198 CrPC, Transformative Constitutionalism        
  • This case started after February 2016, when the then Hon’ble President of India had called for a thorough revision of the Indian Penal Code.
  • The penal code of our country hasn’t been subjected to any amendment in the past 155 years, and it like many other aspects has in it many loopholes.
  • In view of changing the penal code made back then in the colonial era and adding punishments for certain crimes which have added up in recent times, it was submitted that Section 497, which talks about “Adultery” is a also an outdated provision, in addition to being illegal and violative of fundamental rights.
  • This case took shape when in October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Art 32 of the Constitution. The petition so mentioned challenged the constitutionality of the offence of adultery under Sec 497 of IPC read with Sec 198(2) of the CrPC.
  • Sec 497 IPC which was challenged, criminalized adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution.
  • Further a married woman could not bring forth a complaint under Sec 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Sec 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sec 497 and 498 IPC.
  • In Charu Khurana and Ors v. Union of India and Ors.,[1].the attention was bought towards the fact that Sec 497 of IPC cannot be interpreted as a beneficial provision under Art 15(3) and the exemption provided for women does not fall within the scope of the Article. It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offence punishable under the code. This was repelled in the Hon’ble court of justice.
  • The said provision is also hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of India and Ors,[2], since sexual privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of Constitution of India since it excludes women from prosecuting anyone engaging in adultery.
  • All these aggravations led up to the formation of the case in question. This provision was challenged before this Hon’ble Court on three occasions, firstly in Yusuf Abdul Aziz v. State of Bombay and Another[3], secondly in Sowmithri Vishnu v. Union of India[4] and finally, in V. Revathi v. Union of India[5].
  • Whether exemption granted to married women under Section 497 violates articles 14 and 15 of the Constitution?
  • Whether the benefit of section 497 be given to one specific gender?
  • Whether Section 497 is an excessive penal provision which needs to be decriminalized?
  • The court at first instance referred to the main cases that led to the development of the case in question.  In Yusuf Abdul Aziz v/s State of Bombay[6]it was argued that in an act of adultery, the consenting woman is also at equal fault. So, punishment is to be given to the consenting woman as well. The court said that the disputed provision comes within the ambit article 15 (3) of the constitution i.e. special provisions for women and children. So, the case of appellant was declared to have no merit and the appeal was dismissed. Section 497 was held to be constitutional.
  • In Sowmithri Vishnu v/s Union of India[7], it was contended that the language of section 497 suggests that women do not have any right to sue/prosecute their adulterous husband/(s). Also, she contended that section 497 gives the license to the male counterparts to have adulterous relation with the unmarried women. So, section 497 violates articles 14 and 15 of the constitution. The court opined that in cases of adultery, the standard assumption is that only the man can be a seducer and consequently an author of an adulterous relationship. The women are considered only as victims, not as perpetrators of the offense. Also, the court disagreed with the view that husband have the license to develop illicit relationship with any unmarried woman. So, the court declared section 497 as valid.
  • In Revathi v/s Union of India and ors. [8], the petitioner-wife contended that the wife cannot be denied the right to prosecute her husband. The section 497 of the I.P.C. read along with section 198 (2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), 1973 violates article 14 and serves as a fetter to the right of women to prosecute their husband. The court opined that the denial of the right of a wife to prosecute her adulterous husband is balanced with the denial of right of the husband to prosecute his adulterous wife. As per section 497, a husband can prosecute only the male partner of an adulterous relationship. So, there is no violation of right to equality under article 14 and thus, section 497 is valid.
  • The learned counsel for the petitioner contended that S.497 of the Penal code is quite archaic, further suggesting that that wife is to remain subordinate to the husband and that only the husband can seduce another woman outside his marriage etc. are not relevant concepts in present times.
  • Further stating, although article 15(3) provides for special provision for women and children and it has been argued that section 497 of the IPC is under article 15(3), it is to be noted that article 15(3) is a beneficial provision but the concept of adultery is about sexual intercourse between two adults outside their marriage and therefore it does not come under the purview of article 15(3).
  • Also, it was contended by the petitioner that the aforesaid section also violates the rightto privacy under article 21 of the constitution which provides for the right to life as it violates the sexual autonomy of the spouses by not allowing them to indulge in sexual intercourse outside the marriage. In order to cull out the principles embodied in Article 14, the Hon’ble Court relied upon the following judgments:  Shayara Bano v. Union of India and others[9]; State of Mysore v. S.R. Jayaram[10]; Indira Nehru Gandhi v. Raj Narain[11]; E.P. Royappa v. State of Tamil Nadu[12]; Maneka Gandhi v. Union of India[13]; A.L. Kalra v. Project and Equipment Corporation of India Ltd.[14]; Ajay Hasia v. Khalid Mujib Sehravardi[15]; K.R. Lakshmanan v. State of T.N.[16]; Mithu v. State of Punjab[17]; Sunil Batra v. Delhi Administration[18].
  • The following principles of Article 14 were noted:
  • The Rule of Law, which is a positive aspect of Article 14, prescribes that if a State action was found to be arbitrary and unreasonable, it would negate the equal protection of law and would be struck down.
  • The Rule of Law would mean that the decisions would be made by application of known principles and rules and should be predictable. If a decision is taken without any such principle or without any such rule, it is unpredictable.
  • The Statutory Laws will be struck down if it is shown that they are arbitrary. The test of manifest arbitrariness would apply to invalidate legislation under Article 14. Manifest arbitrariness would mean that something is done by legislature capriciously, irrationally and without any determining principle. Additionally, when something is excessive and disproportionate, it would be manifestly arbitrary.
  • The issues involved in the present case were quite extensive and requires an in depth research and observation by the court and thus, the court here analysed the present case using different parameters that widened the scope of research, as well as made the task of the court easier.
  • Based on the aforesaid approach, the court first analysed the situation vis-a-vis ARTICLE 14 , and noted that-
  • Adultery law treated the woman as a chattel and as a property of men and this provision was a reflection of the patriarchal clutch prevalent from ancient times.
  • Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow.
  • The court also took a look into Section 198 CrPC which deals with the aggrieved person. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and it also does not consider the wife of the adulterer as an aggrieved person.
  • The court also noted that this section does not enable the wife to file any criminal prosecution against the husband. Though, she can take civil action against the husband but the husband is also entitled to take civil action. Therefore, the court felt that the said provision couldn’t have been declared as arbitrary.
  • Taking into view the concept of “GENDER EQUALITY” and further, understanding the scope of S.497 vis-a-vis ARTICLE 21, the court referred to Pawan Kumar Vs. State of Himachal Pradesh[19], wherein it was held that “The right to live with dignity was guaranteed under Article 21 of the Constitution could not be violated by indulging in obnoxious act of eve-teasing. It affected the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution.”
  • Further the court referred to State of Madhya Pradesh V. Madan Lal[20], wherein, the court held that Dignity of a woman was a part of her non-perishable and immortal self. There could not be a compromise or settlement as it would be against her honour which matters the most. The Court also stated that male chauvinism had no room in a civilised country like ours. The Constitution of India confers the affirmative rights on women and the said rights are visible from Article 15 of the Constitution.
  • The court made reference to K.S. PUTTUSWAMY v. Union of India[21], a case in which the concept of privacy is bought into question. Herein, the court declared that Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21). Looking at all the above mentioned decisions in the aforesaid famous cases, the court opined that Section 497 created invidious distinctions in dignity of women and thus scarred their individual dignity. Further, agreeing to the fact that Article 21 was violative of Article.
  • The court examined the provisions of Section 497 and further observed that What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape. This shortcoming could not be ignored.
  • Regarding the issue whether adultery should be considered as a criminal offence or not, the court after analysing ARTICLE 14 and 21 made the following observations- There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. The court also concluded that law existed to serve the needs of the society. If the law was to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. Law must take cognizance of the changing society and it must be compatible with the developing concepts and ideologies in the changing times. The need of the present has tobe served with the interpretative process of law.
  • The court stated that treating adultery as an offence would tantamount to the State entering into a real private kingdom per se. Under the existing provision, the husband was treated as an aggrieved person and the wife was ignored as a victim. According to the Court, the provision was reflective of a “tripartite labyrinth”. A situation might arise where equality of status and the right to file a case might be conferred on the wife but in either of the situations; the whole scenario was extremely private.
  • The court thus opined, if adultery was treated as crime, then there would be extreme interference with the privacy of a matrimonial relationship or matrimonial sphere. The court also noted that adultery was no longer a crime in People’s Republic of China, Japan, Australia and Brazil.
  • If the act was treated as an offence and punishment was provided, it would tantamount to punishing people who were unhappy in marital relationships. Analysing the Article 14 and 21 and further taking all precedents and other important provisions and concepts into consideration, the court opined that thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sitin 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 law.
  • The court intended to uphold the spirit of the constitution by attempting to do away with the gender inequality which was a major point of contention over the years in the issue of adultery. Court stated that with the passage of time, they have to recognize the conceptual equality of women and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. Besides the element of the consent of the husband stereotype the subordination of women. Therefore the court held that they have no hesitation in declaring it to be unconstitutional.
  1. The learned Justice Indu Malhotra also observed that the right to privacy is inalienable and that the provisions of the section 497 infringe on such rights. Whether it is any person, man or woman, married or unmarried, he/she has the sole autonomy over whom they choose to develop intimate relationship with. In the light of the above, the Section 497 was held unconstitutional.
  • According to the Court, Adultery as crime in India was violative of Articles 14 and 21 of the Constitution. 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 Section 497 IPC was unconstitutional and that adultery would not be treated as an offence and it also declared Section 198 of CrPC unconstitutional.
  • Consequently, the decisions in Sowmithri Vishnu and V. Revathi and any other judgement regarding adultery were overruled.

[1] 2015(1) SCC 192

[2] (Writ Petition (Civil) No. 494 OF 2012)

[3] AIR 1954 SC 321

[4] AIR 1985 SC 1618

[5]  (1988) 2 (SCC) 72

[6] (1954 AIR 321)

[7] (1985 AIR 1618)

[8] (1988 AIR 835)

[9] (2012) 1 SCC 358

[10] (2017) 9 SCC 1

[11] (1968) 1 SCR 349

[12] (1975) Supp SCC 1

[13] (1974) 4 SCC 3

[14] (1978) 1 SCC 248

[15] (1984) 3 SCC 316

[16] (1981) 1 SCC 722

[17] (1996) 2 SCC 226

[18] (1983) 2 SCC 277

[19] (2017)7 SCC 780

[20] (2015)7SCC 621

[21] (2017)10 SCC 1

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