Court: Supreme Court of India
Bench: Justice Deepak Mishra, Justice R.F Nariman, Justice D.Y Chandrachud, Justice A.M Khanwilkar, and Justice Indu Malhotra
Petitioner: Joseph Shine
Respondent: Union of India
Citation: 2018 SC 1676
In India, adultery was sanctioned by patriarchy and male chauvinism. A man who has sexual relations with a woman who is the wife of another man is guilty of this crime. And if the husband agrees or assists with such an act, it is no longer considered adultery. In this situation that her husband commits adultery, she has no rights. Adultery was once believed to be a sinful act committed by either a married man or a married woman. In India, a woman who commits adultery is treated like a victim who has been seduced by a man into doing so. This legislation violates our fundamental values of equality, non-discrimination, and the right to a dignified life, among others. The law changes over time, and many recent decisions have broadened the scope of constitutional rights to reflect shifting social standards and expanded individual liberty. This decision joins them in making history by overturning a 158-year-old statute that has lost meaning as social and moral circumstances have changed.
Many men have fallen victim to such penal provisions since adultery became a criminally incriminating provision, not just a civil wrong as it should be, and along with the general gender biasedness of various laws in favour of women, this provision has seen its fair share of misuse, thus even after it was found to be legally valid, a petition was filed by a non-residential Keralite named Joseph Shine who challenged the constitutionality of Section 497 of the Indian Penal Code in various precedents. The main purpose behind this petition was to protect Indian men from being punished by vengeful women or their husbands for extramarital relationships. The petitioner’s close friend in Kerala committed suicide after he was accused of malicious rape by a female co-worker. Section 497 is another egregious occurrence in the unfairness of sexuality, authoritative imperialism, and male patriotism. The typical sense in which Section 497 was drafted is no longer relevant in today’s society. As a result, there was a Public Interest Litigation filed. It was first submitted to a three-judge court, with the judges deciding to refer the case to a constitutional bench, which the researcher is now examining.
- Indian Penal Code,1860.
Section 304 (B): Dowry Death.
Section 306: Abetment to Suicide.
Section 494: Marrying again during the lifetime of husband or wife.
Section 497: Adultery.
Section 498: Enticing or taking away or detaining with criminal intent a married woman.
Section 498(A): Husband or relative of husband of a woman subjecting her to cruelty.
- Code of Criminal Procedure, 1898.
Section 199: Prosecution for adultery or enticing a married woman.
- Code of Criminal Procedure, 1973.
Section 125: Order for maintenance of wives, children, and parents.
Section 198: Prosecution for offences against marriage.
The only difference in respect of adultery in the old and the new code was that earlier only the husband was aggrieved and thus only he could approach the court but now any person who was taking care of the wife could file such petition, and thus, now any such person could be an aggrieved person.
- The Constitution of India, 1950.
Article 14: Right to Equality.
Article 15: Right against Discrimination.
Article 16: Equality of opportunity in matters of public employment.
Article 21: Right to Life.
Article 366(10): Definition of “existing laws”
- Divorce and Matrimonial Causes Act, 1857. [UNITED KINGDOM]
Section LIX: Abolished the common law action for Criminal Conversion [ADULTERY].
Section XXXIII: To Award the husband damages for the adultery of the wife.
- Matrimonial Causes Act, 1923. [UNITED KINGDOM]
It opened adultery as a ground of divorce for both the husband and the wife instead for the husband only.
- Law Reforms (Miscellaneous Provisions) Act, 1970. [UNITED KINGDOM]
Section 4: It finally abolished the right of the husband to claim damages for adultery.
- The Criminal Code,1998. [SOUTH KOREA]
Article 241: Adultery.
- The Penal Code Act, 1950. [UGANDA]
Section 154: Adultery.
- The Law Reform (Marriage and Divorce) Act, 1976. [MALAYSIA]
It made adultery a civil wrong for all non-Muslims and also allowed either spouse, to be an aggrieved party and claim damages from the adulterer or adulteress.
Facts of the case
Joseph Shine filed a writ petition under Article 32, questioning the constitutionality of Section 497 of the IPC, read with Section 198 of the Cr. P.C., is in violation of Articles 14, 15, and 21. This started out as a PIL against adultery. The requirement for adultery, according to the complainant, is arbitrary and oppressive on the basis of gender. The petitioner argued that such a law degrades a woman’s integrity. The petition was heard by a five-judge constitutional court.
1. Is the provision for adultery in Article 14 arbitrary and discriminatory?
2. Is it true that the provision for adultery encourages the stereotype that women are men’s property and discriminates on the ground of gender under Article 15?
3. Does denying a woman’s sexual autonomy and right to self-determination jeopardise her dignity?
4. Is it true that criminalisation of adultery is a legitimate intrusion into an individual’s private life?
Evaluation of the case
The Woman has no right to file a complaint
A wife is unable to bring charges against her husband for having an adulterous relationship. It is not illegal for a married man to have sexual relations with a single woman, according to the statute.
Who can be prosecuted?
Even if the relationship is voluntary, only the adulterous man may be punished for committing adultery, not the adulterous woman. The adulterous woman is not even regarded as a co-conspirator in the crime. Women are not found criminally responsible. In this case, the existence of an appropriate deciding principle for such classification was challenged.
Woman treated as a property of man
Adultery was once thought to be the “highest possible invasion of land,” equivalent to rape since it interfered with the “husband’s exclusive entitlements.” On a reading of Section 497, it is clear that women are regarded as second-class citizens to men, as it notes that there is no offence if the man acts with connivance or consent. . This treats the woman as though she were a piece of property. It treats her as though she were a man’s possession, fully subject to the master’s will. It reflects the social superiority that existed at the time the penal provision was written.
Section 497 violates Articles 14 [Equality before law]
Women are not prosecuted for adultery, and women cannot sue their husbands for adultery under Section 497, which treats men and women unequally. Furthermore, no offence may be created if the husband of a woman who has committed adultery has given his “consent or connivance.” The section is manifestly arbitrary and thus in violation of Article 14 because it lacks an appropriate determining principle to criminalise consensual sexual activity.
Section 198(2) CrPC also violates Article 14 [Equality before law]
The wife of the adulterer is not considered an aggrieved individual under Section 198(2) CrPC. The provision’s reasoning suffers from a lack of logicality in approach, and as a result, it suffers from the vice of being manifestly arbitrary as specified by Article 14 of the Constitution.
Violation of Article 15(1) [Prohibition of discrimination]
Article 15(1) forbids the state from discriminating exclusively on the ground of gender. If a husband engages in sexual intercourse with another man, the law considers him an aggrieved party; however, if his wife does the same, the wife is not. When viewed from this perspective, the crime of adultery discriminates against a married man and a married woman solely on the ground of sex. Article 15 is breached because the clause is discriminatory (1).
Violation of dignity of woman and Article 21 [Right to life]
Article 21 includes a section on human dignity. Section 497 effectively limits a woman’s fundamental integrity by establishing invidious distinctions based on gender roles, placing a dent in women’s individual dignity. Furthermore, focusing on the factor of connivance or approval on the part of the husband amounts to women’s subordination. Therefore, the same offends Article 21.
Violation of right to privacy and right to choose
This Court has accepted sexual privacy as a constitutionally protected natural right. Sharing one’s physical intimacies is a deliberate decision. Shackling a woman’s personal freedom and allowing the criminalization of consensual relationships is a breach of this right.
The sexual agency of a married woman is completely reliant on her husband’s consent or complicity.
A man who has sexual intercourse with a married woman without her husband’s permission or connivance is liable to be prosecuted for adultery, even though the relationship is founded on the woman’s consent. Even though she is free from prosecution, a woman is forced to consider the likelihood of legal action being taken against the person with whom she engages in a sexual act. To ensure his wife’s fidelity, the man is given the authority to use the State’s criminal sanction. Her partner, in essence, has the authority to limit her sexual agency.
Section 497 denudes woman’s sexual autonomy
Section 497 deprives a woman of her sexual integrity by requiring her spouse’s permission to exercise it openly. It perpetuates the idea that when a woman enters marriage, she agrees to a restricted autonomy. Forced female fidelity is an affront to the human right to freedom and equality when it is enforced by restricting sexual autonomy.
Opposed to “constitutional morality”
The law must be driven by constitutional morality, not the popular morality of the state at any point in history. Constitutional morality necessitates the defence of certain privileges that are necessary for the free, equal, and dignified life of all members of society in every democracy. A dedication to fundamental morality necessitates the implementation of constitutional guarantees of equality before the law, non-discrimination on the ground of gender, and integrity, all of which are harmed by Section 497’s activity.
Premised on sexual stereotypes
Section 497 is based on sexual stereotypes that portray women as passive and sexually powerless. Feminist academics have slammed the idea that women are “victims” of adultery and thus deserve a favourable exemption, arguing that such an interpretation of women’s status is demeaning and fails to consider them as equally autonomous individuals in society.
Case of pending divorce proceedings
Even in the case of a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband and may have received a judicial separation order against him before a divorce being issued, manifest arbitrariness is writ large. If she has sex with another man during this time, the other man is automatically guilty of the crime.
Whether adultery should be treated as a criminal offence?
Adultery is almost always linked to the institution of marriage. Making adultery a crime would be tantamount to the government intruding into a truly private domain. Adultery is not a felony in the traditional sense. It’s preferable if it’s not used as a basis for divorce.
Why did the Supreme Court not wait for the legislature, and itself strike down the provisions?
These parts are completely obsolete and no longer serve a function. Cessante ratione legis, cessat ipsa lex [when the justification of the law ceases, the law itself ceases] is a maxim of Roman law that refers to interdicting such law. Furthermore, when a statute violates constitutional protections, it is the Supreme Court’s solemn obligation to strike it down rather than waiting for a legislation.
Adultery continues to be a ground for divorce
There is no question that adultery may be used as a basis for any legal wrong, including the breakup of a marriage.
The judgement took a positive move forward by striking down Sections 497 IPC and 198(2) of the Criminal Procedure Code, both of which are focused on gender discrimination. In two ways, the clause is discriminatory: first, it denies women the right to sue an adulterous husband, and second, it does not punish an adulterous wife, even though she is an “abettor.” Furthermore, this decision has put the concept of transitional justice into motion.
However, the decision has created an anomaly in the field of adultery law by making the act of adultery unpunishable. The decision has been criticised for taking away remedies available to any spouse whose partner commits adultery. As a result, the perfect way will be to punish those who commit adultery. Adulterous women should be charged, and the penalty should be shortened from five to two years, according to the 42nd Law Commission report. It was not carried out. As a result, this should be enforced so that people are scared and think twice before acting.
Furthermore, the judgement is silent on the effects of the decision on social structures such as marriage, as well as on children born out of such relationships or involved in similar circumstances in some other way. As a result, there should be a law in place to protect the child who is the result of the relationship.
It’s important to remember that the removal of these clauses doesn’t mean there aren’t any legal repercussions for adultery. These penalties do not have to be criminal, and a solution can be found in civil law, which also recognises adultery. In personal rule, it is a reason for divorce. This method is therefore consistent with the right to privacy and does not necessitate the State to expend resources. Cruelty under section 498A, as well as the concept of domestic abuse under the Domestic Violence Act of 2005, will cover a woman’s emotional distress caused by her husband’s adulterous relationship.
Analysis of the Judgement
The Supreme Court of India recently overturned section 497 of the Indian Penal Code in a case. The court has imposed restrictions on the institution of marriage, which is the bedrock of Indian society. Adultery-related offences will be eliminated as a result of this. This decision has resulted in sexual chaos.
Adultery is no longer recognised as a civil wrong, and it can only be used as a justification for divorce. However, the arguments are insufficiently compelling, and hence this cannot become Lex Loci. If adultery is not considered a felony, divorce on this basis will be a fruitless endeavour. Criminal law is regarded as a defender of Indian society’s moral values. If we start subjecting laws to our own reasoning, we’ll end up with anarchy, because there will always be a counter-narrative.
The Supreme Court claimed in State of U.P. v. Deoman Upadhyaya that “it must be recalled that the legislature has to deal with practical problems when deciding the constitutionality of a law on the ground of whether it has given fair treatment to all persons similarly situated.” The problem should not be judged exclusively on the ground of hypothetically conceivable circumstances in which the statute should have been enforced but was not.
The legislature’s motivation for this is to protect women. As a result, the Law Commission stated the responsibility of only male offenders when writing a new penal code in 1847. The legislature, on the other hand, has the authority to determine which actions are criminal and which are not.
Adultery affects on the children and families of both the offending and victim partners. The offspring of the offending and victim spouses are left in the lurch because divorce is the only choice left. The current ruling makes no provision for the children born as a result of such an adulterous marriage.
Section 497 of the Indian Penal Code acts as a deterrent, ensuring that the adulterer does not replicate the offence. The law is ineffective in terms of compliance, but it is effective in terms of preventing adultery. Since India is a semi-feudal nation, it is impossible to judge it in terms of western countries. Various factors relating to the country’s socioeconomic order are needed to be considered.
It was well observed by Justice Frankfurter in Trop vs Dulles: All control is of an encroaching sort, as Madison put it. This human vulnerability is not immune to judicial power. It must always be on the lookout for encroaching outside its proper boundaries, which is all the more important given that the only restraint it has is self-control. The Court must pay close attention to the limits of its own authority, which prevents the Court from acting on its own ideas about what is prudent and politic. The judicial oath requires self-control since the Constitution does not give judges the right to sit on the wisdom of Congress or the Executive Branch.
Adjudication must be performed within the framework of traditionally validated restraints and conscious minimization of the judges’ interests, as stated by the Supreme Court in Govt. of Andhra Pradesh Vs P Laxmi Devi, and as stated in State of Bihar Vs Kameshwar Singh, the legislature is the best judge of what is good for the people by whose suffrage it has come into being.
The immediate results would be a rise in marital suicide rates, followed by conviction for abetment of suicide under section 306 of the Criminal Code. It would have been more just if the section had been revised rather than struck down. The provision’s omission of women delegitimizes women’s sexuality by carefully erasing it.
Instead, section 198 of the Code of Criminal Procedure, 1973, should have been repealed because it bars wives from filing adultery charges.
Although the court defends the provisions by claiming that women are unable to be granted agency, men’s rights advocates (revengefully) demand that the clause be reassessed to revoke the woman’s immunity from prosecution. Both are overly patriarchal perspectives on the case. The reserved judgement has the option of withdrawing from these lines of argumentation and concentrating on the core issue: women’s legal disempowerment. Adultery is not a criminal offence since it is a personal matter in which the courts do not intervene. Every person has sexual autonomy, and interfering with it would be a violation of constitutional principles.
Adultery is now a constitutional wrong rather than a criminal offence, thanks to this ruling. The Legislature should have done this a long time ago, but our judiciary has been very successful in filling in the gaps and replacing obsolete laws as social notions have shifted.
In an evolving world, the law must keep pace with changing ideas and philosophies.
Law must take into account changing society and be compatible with developing concepts and ideologies in changing times. The current need must be addressed through the legal understanding process. Equality before the law applies to both fair access to the law and equal exposure to the law. This is one of the values upheld by the Supreme Court’s five-judge bench in finding Section 497 of the Indian Penal Code, which had criminalised adultery for 158 years, unconstitutional. However, knowing the decision’s underlying logic and true spirit will take time.