INTRODUCTION
The case of Joseph Shine V. Union of India is a landmark judgment which decriminalized Section 497 of Indian Penal Code, 1860 which used to talk about the offence of “Adultery”.
On 27th July 2018 5 judge bench headed by former CJI. Deepak Mishra unanimously struck down Section 497 of Indian Penal Code 1860 read along with Section 198(2) of Criminal Procedure Code 1973 to the extent that it criminalized sexual intercourse between consenting individuals if the women is wife of some other person. So basically this Section 497 of IPC used to make a man liable for having sexual intercourse or sexual relations with any other women who is or is believed to be wife of another person. India has acquired a place among more than 60 countries in the world to decriminalize adultery.
The offence of Adultery came from the ancient civilization and at that time it was considered as a sin. Then later on in India various Dharmashastras and manusmritis also provided punishment to every man who indulges in sexual relations with the wife of another man.
According to Section 497 Indian Penal Code whosoever have any kind of sexual relation or sexual intercourse with a person who is or whom he knows is wife of another man such sexual act or sexual relation id guilty of the offence of adultery and shall be penalized with imprisonment of term which may extend to 5 years. However the wife shall not be penalized as an abettor.
According to Section 198 (2) of Criminal Procedure Code 1973 no other person other than the legally wedded husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 of the Indian Penal Code 1860.
FACTUAL BACKGROUND
In October 2017 Joseph Shine an Indian businessman (Non Resident keralite) filed a Public Interest Litigation under Article 32 of Indian Constitution challenging the constitutionality of Section 497 of Indian Penal Code 1860 r/w Section 198(2) of Criminal Procedure Code 1973.
His core intention for filing this PIL in Supreme Court was to protect Indian mens from being punished for extra marital relationships by women or their husband.
Joseph’s one of close friend living in Kerala committed suicide because his co-worker maliciously made rape charges against him. So he came forward and filed the petition in Supreme Court to protect other mens from the sexual unfairness of Section 497 of the Indian Penal Code 1973.
He contended that the traditional framework which was earlier drafted by the law commission was not applicable now in the modern society.
ISSUES RAISED
Whether Section 497 of Indian Penal Code 1860 and Section 198 (2) discriminates against men and women and is violative of Article 14 and Article 15 or not?
Whether Section 498 of Indian Penal Code 1860 read with Section 198 (2) is unconstitutional, arbitrary and unjust and violative of fundamental rights granted to an individual in Part III of Constitution?
Whether Section 498 of Indian Penal Code 1860 read with Section 198 (2) infringes right to privacy and right to dignity granted to individual on Article 21 of the Indian Constitution?
ARGUMENTS RAISED BY PETITIONER
This Section is prima facie unconstitutional on the ground that it discriminated against men and women thereby violating Article 14 and Article 15 of the Indian Constitution.
Under the Section only men is punished and the women who is equally responsible for the act committed is not even punished as an abettor.
Joseph in his PIL contended that when the intercourse takes place with the consent of both the parties, then there is no ground or no good reason for excluding women from the criminal liability arising out of the act committed. Thus the said discrimination was against the nature and true scope of Article 14 of Indian Constitution.
Further under this Section married women cannot file a complaint against her husband if he is indulged in any kind of sexual relation with other women.
The right to privacy under Article 21 should also include right of two adults to enter into a sexual relation outside marriage.
ARGUMENTS RAISED BY RESPONDENTS
They said that Section 497 IPC was enacted specially for the benefit of the women and it is saved by Article 15 (3) of Indian Constitution.
The freedom of sexual relation outside marriage by a married person does not warrant protection under Article 21 of Indian Constitution. They further said that right to privacy is not absolute and it is subject to restrictions when it’s a matter of public interest.
They contended that if the offence of Adultery would not be criminalized it would lead to several problems in family and may even break relations thus there is a need to give deterrence to protect the institution of marriage.
JUDGEMENT
5 Judge bench – CJI Deepak Mishra, Justice D.Y. Chandrachud Justice AM Khanwilkar, Justice R.F. Nariman, and Justice Indu Malhotra.
The Supreme Court declared that Section 497 of IPC r/w Section 198 (2) of Cr.P.C 1973 are unconstitutional because it violates Article 14, 15 and 21 of the Constitution.
Justice DY Chandrachud while giving the judgement said that, “the history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency”.
Further the provision of Section 497 of IPC does not enable the wife to file any criminal prosecution against the husband. Thus it is violative of right to equality given to every individual under Article 14 of Indian Constitution.
Bench further held that Section 497 of the Indian Penal Code violates Article 15(1) of the constitution because it is discriminatory on the basis of gender and perpetuating the stereotype of controlling a wife’s sexual autonomy.
“The dignity of an individual and sexual privacy is protected by the constitution under Article 21”.
The court struck down Section 497 of IPC as unconstitutional and said that “the autonomy of an individual to make his/her choice with respect to his/her sexuality or sexual relation is most intimate choice of life and should be protected from public censure through criminal sanction”.
Former Chief Justice of India Deepak Mishra said that “making a crime is retrograde and would mean punishing unhappy people and any law which dents individual dignity and equity of women in a civilized society invites the wrath of the Constitution”.
It is absolutely and manifestly arbitrary and irrational because it confers a license on the husband to deal with his wife, as he likes which is extremely excessive and inappropriate.
WAY AHEAD
In my view Supreme Court gave a good judgement in this case. The judgement put forward a great initiative as it struck down Section 497 of IPC read with Section 198 (2) of Cr.PC as these were discriminative against women. It used to discriminate by two ways, firstly it did not allowed married women to file a case against her husband who is involved in adultery, and secondly it did not penalize women involved in the offence not even as an abettor.
The Adultery is still a civil wrong and further it can also be taken as one of the grounds for divorce. However the burden of proof lays with the person who is accusing the other person of the adultery thus that person should collect relevant evidence to prove the offence of adultery before the court to get a divorce.
However the offence of adultery is morally wrong but in this modern developing society one cannot and should not be punished merely on the basis of sexual relation with other person.
SUBMITTED BY
ANIKET DIMRI (AMITY LAW SCHOOL NOIDA)