Josepp Shine v. Union of India on 27 September 2018
This Blog is written by Soham Kamble from School of Law, University of Mumbai. Edited by Oshin Suryawanshi.
A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the provision for adultery to be arbitrary and discriminatory on the basis of gender. The petitioner claimed that such a law demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the petition.
Whether the provision for adultery is arbitrary and discriminatory under Article 14?
Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article 15?
Whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-determination?
Whether criminalizing adultery is intrusion by law in the private realm of an individual?
RULE OF LAW
In the 42nd Law Commission report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’. The same is pending for consideration.
The test of manifest arbitrariness should be applied to invalidate the legislation or any sub-legislation. Any law found arbitrary will be struck down.
E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3
Shayara Bano v. Union of India (2017) 9 SCC 1
The classification is found to be arbitrary in the sense that it treats only the husband as an aggrieved person given the right to prosecute for the offence and no such right is provided to the wife. The provision is not based on equality.
The offence is based on the notion of women being a property of husband and adultery is considered to be a theft of his property because it says consent or connivance by the husband would not make it an offence.
The provision does not treat the wife as an offender and punishes only the third party.
Such classification is arbitrary and discriminatory and has no relevance in present times where women have their own identity and stand equal to men in every aspect of life. This provision clearly violates Article 14.
This provision discriminates between a married man and a married woman to her detriment on the ground of sex.
This provision is based on the stereotype that a man has control over his wife’s sexuality and she is his property. It perpetuates the notion that women are passive and incapable of exercising their sexual freedom.
Section 497 protects women from being punished as abettors. It is enunciated that this provision is beneficial for women, which is saved by Article 15(3). Article 15(3) was inserted to protect the women from patriarchy and pull them out of suppression. This article was aimed to bring them equal to men. But Section 497 is not protective discrimination but grounded in patriarchy and paternalism.
Government of Andhra Pradesh v. P B Vijayakumar (1995) 4 SCC 520
Independent Thought vs. Union of India (2017) 10 SCC 800
Thus the said provision 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. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life.
Puttaswamy and Anr. Vs Union of India and others (2017) 10 SCC 1
Common Cause v. Union of India and ors. (2018) 5 SCC 1
The provision allows adultery on the husband’s consent or connivance, which gives a man control over her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality.
When the penal code was drafted the societal thinking regarding women was backward and she was treated as a chattel but after 158 years the status of women is equal to that of men. Her dignity is of utmost importance which cannot be undermined by a provision which perpetuates such gender stereotypes.
Treating women as victims also demeans her individuality and questions her identity without her husband.
The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality provided under Article 21.
A crime is defined as an offence which affects society as a whole. Adultery, on the other hand, is an offence which tantamount to entering into the private realm.
Two consenting adults making it a victimless crime may commit adultery.
This provision aims to protect the sanctity of marriage but we have to admit that because of a pre-existing disruption of marital tie adultery is committed.
The other offences related to matrimonial realms such as Section 306, 498-A, 304-B, 494 or any violation of Protection of women from Domestic Violence Act, 2005 or violation of Section 125 CrPC are related to the extinction of the life of a married woman and punishes her husband and relatives.
In adultery, a third party is punished for a criminal offence with a maximum 5 years imprisonment. This is not required in the opinion of the court.
This provision makes a husband an aggrieved person and a woman a victim. Even if the law changes and provides equal rights to women against adultery, it is totally a private matter.
Adultery is better left as a ground for divorce and not a crime.
Section 497 of IPC is struck down and adultery can be grounds for any civil wrong including dissolution of marriage
This is the 21st century where equality and liberalism have taken over the world. There is a need for legislative reforms to eliminate laws that are discriminatory against women. In India, many laws have become redundant with the passage of time. Adultery being one of them, it was necessary to get rid of it. Adultery not only discriminated between men and women but also demeans the dignity of a woman. This was inserted as an offence when society was filled with patriarchy and paternalism. In that society, a stereotype was created that women belong at home and they didn’t have equal rights and opportunity as men did. And married women didn’t have an individual identity but were treated as the property of their husband which is reflected in the provision for adultery.