Abstract
The vague dominance of one sex over others must be patronized as the dignity and liberty of an individual is important. The individuality of a woman must be respected, that’s the real gracefulness of our Constitution is Part III i.e. Fundamental Rights, women, and her fundamental rights are and shall always be on the top priority of our judiciary.
Not a social activist but a happily married man from Kerala was the sole reason for the overturning of an age-old constitutional law based on adultery, which has now been considered a landmark judgment. The Supreme Court did not just strike down adultery as a criminal offense. It also held that there is equality between the spouses in a marriage and maintenance of autonomy through judgment. The court also declared women’s rights relating to sexual interests both inside and outside the marriage, as well as respecting the rights as per privacy and liberty.
In September 2018 the Supreme Court struck down the 158-year-old Victorian Morality law based on “adultery” in its judgment called the Joseph Shine v. Union of India. The judgment has overruled all previous judgments which criminalized adultery. Adultery is no more unethical, the court has stated that adultery can now only be a civil wrong to the party in the petition and divorce could be the remedy for the same.
In October 2017, the appellant filed a PIL under Article 32 of the Indian Constitution. The petition challenged the fundamentally of the offense under the term adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
Background
Section 497, “Adultery”: ‘Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which extends to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor’
The validity of Section 497 of the IPC has arisen a number of times before the Supreme Court. In a similar case of Yusuf Abdul Aziz v. State of Bombay (1954)[1], the appellant was prosecuted for adultery under Section 497 IPC., and the appellant filed a petition in the High Court under Section 228. Justice Chagla stated that the idea of section 497 was to show that wives were the property of their husbands. The offense would be cognizable only when the husband permits the same. It was considered to be a violation of Article 14 of the Constitution but it was held by the Court that Article 15 (3) provided for special provisions for women and children in the country.
Section 497, the law on adultery gives high privilege to the husbands over ownership of the sexuality of their wives. This section was never meant for the benefit of the women as they were not allowed to exercise their sexual agency without the intervention of their husbands. It always portrayed women as the subordinate in the institution of marriage. The section clearly shows how women are treated as ‘objects’, this was said because if a woman was involved in sexual relations with another man outside the purview of her marriage, the man would not be charged if the relationship was maintained with the prior consent of the husband of the woman.
In another case, Sowmithri Vishnu v. Union Of India (1985)[2]there were three grounds of challenge were bought forward, these being that Section 497, gave the husband in question to bring about a case of action on the adulterer but if the same was vice versa, the wife was prohibited or not sanctioned with such rights. The wife was not allowed to prosecute her husband nor does it cover instances where the husband has committed or is said to have committed sexual relations with unmarried women.
One may say that the section was for the protection of women, but on closer examination, one can clearly understand this was not the case as it was being portrayed. It clearly showed it was a kind of romantic paternalism which had roots in assumptions that women are the property of men. In the judgment relating to the above case, Justice Chandrachud defined the offense as that committed by a man and not a woman, further he states that in recent times with the society undergoing change, it is for the Legislature to decide the constitutionality of the said Section in question.
In the case of V Revathi v. Union of India (1988)[3], it was held that neither of the spouses could bring a charge against the offending partner and so it should not discriminate on the grounds of gender or sex.
Similarly, in W. Kalyani V State Thro’ Inspector of Police and Another [4](2012), the learned court held that strong gender biases were made as it shows the married woman almost as the property of the husband. And as per the section’s reading what can be understood is that only a man can be punished for the offense of adultery. It shows that the wife can never be punished as an abettor and merely the fact that the appellant is a woman makes her free from charges of adultery and she cannot be prosecuted.
Fact of the Case
Joseph Shine, a hotelier challenged the constitutionality of Section 497 of IPC, the core reason being his friend had committed suicide after false allegations were pressed on him by a woman on account of rape. The petition was an initiative to protect men from being punished for extra-martial affairs and protect them from the hatred and revenge of the husbands of such wives.
Further Section 497 is unfair and offers for male dominance in society, the framework or the ideology in which Section 497 was drafted is no longer applicable and thus necessary actions were needed to be taken at this hour.
Issues Involved
- Whether Section 497 of IPC is unconstitutional?
- The problems that were to be addressed were as follows:
- The law pertaining to adultery is made to be gender neutral since the woman is portrayed as a victim in this law;
- Legal provisions to make for women to file a complaint of adultery against husbands
- The act of adultery shall not be regarded as a crime, if the husband agrees to it, thus depicting women as objects under the law of adultery.
Discrimination
The section in question punished men for the act of adultery and penalized only one party to the said crime. Simultaneously, the provisions of the law were applied only to married women and not unmarried, i.e. Section 497 would not be applicable if sexual relations were maintained with an unmarried woman.
Also, the consent of the husband was shown to be playing a key role in the section, since the law would not consider adultery to be a crime if the husband gives his consent for the same.
Referring to the case of State of Tamil Nadu v. R. Vasanthi Stanley (2016)[5] , it stated that criminal prosecution cannot be covered under Article 15(3) thereby giving women special provisions for their acts.
Further, wrt Articles 14 and 15, the petitioner states that men alone are punished for these acts which show the vulnerability of the provisions and lead to discrimination since only one party is penalized while the other party is set free. The third party to the marriage is treated as an intruder and punished as a trespasser to a property.
The doctrine of Principled Criminalisation
The interlink between IPC and the Constitution of India has been underrated for years, while the former was bought into force way before the Constitution, there is a need to realise that changes relating to such provisions of IPC are welcomed.
One of the crucial arguments here remains that the State criminalizes the offence without any sufficient cause[6]. In the case of Gobind v. State of Madhya Pradesh (1975)[7] the court found its connection with the privacy of an individual and read that since adultery did no cognizable harm, the state must not interfere in such matters. Joseph Shine judgment is an attempt toward reformation.
The Judgement
Justice Chandrachud shows that a son is not always bound by his father, and the Supreme Court is no longer a victim of previous judgments.
In December 2017, Joseph Shine filed a petition to challenge the constitutional validity of Section 497, the court held that the law was based on presumptions of the society and thus struck down the law on adultery stating that the ‘Husband is not the master of his wife’ and the law is violative of the Articles 14, 15 and 21 of the Constitution.
Joseph Shine judgement turns the tables!!
In an hour of change of tables, the Supreme Court found all arguments in favour of Joseph Shine and further overruled the judgement passed in the Sowmithri Vishnu case.[8]
1. Section 497 is constitutionally invalid in nature:
The section deprives women of their right of dignity, privacy and individuality. The notion of marriage hampers her right to life and liberty and overthrows equality between the partners. The penal code gives a gender-based approach to the relationship of husband-wife, also it is necessary to recognize and acknowledge the needs of a relationship, one of which is to respect the choices made by another. Respect for sexual autonomy can be enforced only when both parties treat each other equally and in a dignified manner. The section does not consider women to be equal partners in a marriage institution and looks upon them as subordinates. Thus the section is in clear violation of Article 14 and Article 15 which refer to non-discrimination as well as Article 21.
2. Section 497 is not a criminal offence:
Adultery is an act which can be accounted as a personal issue and not a crime which harms society. It may be an account for civil wrong and grounds for divorce but the state can have no say in matters relating to personal discretion.
3. Husband is not the master:
The judgement clearly states that no individual should consider his wife to be a property of his own, women are equals and must be given the same status in the law. The Section also does not preserve the sanctity of the institution of marriage as being portrayed for a husband may give consent to his wife for an affair with another man, it is only a section to have property rights over the wife. Moreover, since there are no provisions for the wife to file a complaint it depicts the arbitrarily nature of the section.
Case Comments
Under the circumstances of the section, the husband is shown as a victim and the wife who is a part of the act is merely ignored. A circumstance could be made to bring about uniformity and allow the wife to file the case as well. But the adultery law demands fidelity and faithfulness be maintained and makes the adulterer a criminal in the eyes of law. To sit in a time machine and go back in the era does not seem to be sensible, thus portraying adultery as a crime would be unfair. The constitution gives equal rights to its men and women and guarantees to treat them equally as well. It thus held that the unchaste woman is made equally responsible for the prosecution and further reduced the penalty to 2 years from the previously stated 5 years.
Adultery is no longer a criminal offence but a civil wrong, the cessation of the law might lead to an increase in crimes relating to the same. The reasons do not seem to be convincing and thus cannot be said to become Lex Loci. Also if adultery is not a crime or a wrong, considering it as a ground for divorce shall be a problem as well.
The judgement did decriminalize adultery and held that the section violated a woman’s right to dignity and led to infringement of Article 21 of the Constitution of India, the judgement finds its roots in the findings of Justice Nariman’s judgement in the Triple Talaq case.
The intention while drafting the Legislature was to protect the women of the nation, thus the IPC only makes the male offenders liable. Adultery may be a hindrance to the privacy of any individual but it’s not just the parties who are affected but also, in turn, affects the children and counter family parts associated with the parties. With absolute rights, one shall have absolute consequences, which shall leave society without any stability. The judgement fails to look into matters where children are borne out of such relations.
The section ensured that no such similar crimes are bought by the adulterer over and over again, several crimes have been increasing in society but have we led to decisions of decriminalizing them on grounds of such arguments?
The consequences of such judgement may be an increase in suicide rates in marital relations and then prosecution under Section 306 shall take place[9].
Would it not be a more balanced effect if the Section would have been amended, instead of being struck down? We could have had Section 198 of the Code of Criminal Procedure, 1973 struck down as it prevented the wives from filing complaints for adultery against their husbands.
Quoting Justice I. Malhotra, ‘Women are no longer invisible to law, and they no longer live in the shadows of their husbands’.
Conclusion
The judgement passed unanimously by the five bench judge, struck down Section 497 of IPC and Section 198 (2) of CrPC is considered monumental as rarely has it happened that a provision of IPC has been struck down, as in the case of Navtej Singh (homosexuality case) the court did not annualise the Section 377 but simply read it out, the decision made in case of Joseph Shine has been taken retrospectively. The judgement upheld sexual agency and sexual autonomy and regarded there must be equality between spouses in a marriage. As shown many times earlier, female sexuality was important to ensure purity of caste and thus led to gender inequality. The law did not protect the family structure but merely led to the transmission of privilege. The law was being used to enforce gender inequality and oppression of women in marriage.
The Hon’ble Supreme Court rightly states that faithfulness through adultery law was not sanctioned to protect women or preserve the institution of marriage. The court upheld that the section was in violation of Article 14, Article 19 and Article 21 of the Constitution of India.
However, the author concludes that it is important to understand the spirit of the relationship between the husband and the wife and the role of the legislation is to ensure proper interpretation of enactments.
While the judgement is significant in itself, has opened doors to a woman’s equality in the institution of marriage, and seeks for protecting them against sexual violence and claiming economic and social rights which are free from the conditions of faithfulness and loyalty being imposed by their counter spouses.
Thus what we need to understand is that every woman must be respected and treated at par with their husbands, fathers and brothers. She must be given the right to develop herself and when she marries she isn’t the servant but an equal partner, and neither of the parties to the marriage should ever forget that they shall not be able to function without each other and neither of them is above the other no one is superior, they are all equal.
[1] Yusuf Abdul Aziz V State of Bombay. 1954 SCR 930.
[2] Sowmithri Vishnu V Union Of India.1985 Supp SCC 137
[3]V Revathi v Union of India, (1988) 2 SCC 72.
[4] W. Kalyani V State Thro’ Inspector of Police and Another, (2012) 1 SCC 358
[5] State of Tamil Nadu V R. Vasanthi Stanley,(2016) 1 SCC 376
[6] Mills Harm Principle
[7] Gobind V State of Madhya Pradesh, (1975) 2 SCC 148
[8]Sowmithri Vishnu V Union Of India.1985 Supp SCC 137
[9]Aabha Singh, Decriminalisation of Adultery, Outlook (SEPTEMBER 27, 2018), available at: https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-to-the-institution-of-marriage-in-india/317282
