Adultery case- Joseph Shine V. Union Of India

Joseph Shine V. Union Of India – Adultery

Joseph shine v. Union Of India is a landmark judgment in which section 497 of the Indian Penal Code was unanimously struck down by a five-judge bench and the court decriminalized adultery.

FULL CASE NAME: – JOSEPH SHINE V. UNION OF INDIA

DECIDED ON: – 27 September 2018

CITATION: – 2018 SCC Online SC 1676

 

JUDGES INVOLVED

  1. Chief Justice Deepak Misra
  2. Justice Khanwilkar
  3. Justice R.F Nariman
  4. Justice D.Y Chandrachud
  5. Justice Indu Malhotra

 

INTRODUCTION

Joseph shine, a non-resident of Keralite, filed public interest litigation under Article 32 of the Indian constitution. The petition challenged the constitutionality of the offense of adultery under section 497 of the IPC which is read with section 198(2) of CrPC, 1973.

 

Section 497[1] of the Indian penal code makes adultery a criminal offense as it states that 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 offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to 5 years, or with fine or with both. In such a case the wife shall not be punished as an abettor.

 

Section 198(2)[2] of CrPC talks about the person aggrieved, the section states that “For the purpose of sub section (1), no person other than the husband of the women shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said code: provided that in the absence of the husband, some person who had care of the women on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf”

 

Section 497 of IPC and Section 198(2) of CrPC collectively deal with the offence of adultery and was struck down by the Supreme Court in Joseph Shine v. UOI.

 

HISTORY of offence of Adultery

Offence of Adultery is a pre-constitutional law which was enacted in year of 1860 and at that time women is considered as the property of the husband and any such offence is considered as theft to the property of the man. At that time the women has no rights and they are dependent on their husbands only.

 

ELEMENTS FOR THE OFFENCE OF ADULTERY

In order to constitute the offence of Adultery, the following must be fulfilled-

  1. There must be sexual intercourse between married women and a man who is not her husband
  2. The man who had done sexual intercourse with the woman must known or has reason to believe that she is wife of another man
  3. Sexual intercourse must be done with consent of the women, it must not amount to rape
  4. Sexual intercourse of a man and married women other than her husband must be done without consent or connivance of her husband.

 

ISSUES RAISED-

  1. Whether section 497 of Indian penal code, 1860 is unconstitutional being unjust, illegal, arbitrary and violative of fundamental right
  2. Whether section 198(2) of Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal, arbitrary and violative of fundamental right.

 

JUDGEMENT-

The apex court struck down section 497 of IPC as it discriminates the women, the section treats one sex superior to the other sex and it treats women with indignity and inequality. The section 497 is also violative of fundamental rights under articles 14, 15 and 21 of Indian constitution. The apex court also struck down section 198(2) of Code of Criminal Procedure as CJI Deepak Misra stated that “When the substantive provision goes, the procedural provision has to pave the same path.”

 

Section 497 of IPC treats women as the property of the man, as the law is of 1860 and at that time this offence is considered as theft to the property of the man. Under the section 497 women are being treated as subordinate to man, as if the women has done sexual intercourse with a person other than her husband with consent of her husband is not an offence.

This treats women as a chattle and mans are the master of the women. Justice Nariman stated that a statutory provision, which demands or degrade the status of a women, falls foul of modern constitutional doctrine and must be struck down.

 

Section 497 is also violative of fundamental rights, Article 14[3] of Indian constitution treats the man and women equally but the women cannot be prosecuted for the offence of adultery and the women cannot prosecute their husbands for adultery this is manifestly arbitrary and violative of article 14. Article 15(1)[4] prohibits the state from discriminating peoples in the ground of sex, but a man is considered aggrieved party when his wife engages in sexual intercourse with other man, but wife is not aggrieved when her husband did the same.

Section 497 discriminates married man and married women. Constituent of Article 21[5] of constitution talks about the dignity of individual, Section 497 of IPC denies women agency, autonomy and dignity. CJI Deepak Misra stated that invidious distinctions created by Section 497 of IPC curtail the dignity of a woman and severely restrict her autonomy.

The Apex Court in case of Joseph Shine v. Union of India unanimously struck down section 497 of IPC and 198(2) of CrPC as both sections are unconstitutional being unjust, illegal, arbitrary and violative of fundamental right. The bench overruled the judgment of Yusuf Abdul Aziz v. The State of Bombay, Vishnu Revathi v. UOI & Oth. And Sowmithri Vishnu v. UOI & anr.

 

– MAYANK RAGHUVANSHI

 

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MUST READ: Kesavananda Bharati v Union of India- Analysis

 

 

 

 

 

[1] Section 497 of IPC, 1860

[2] Section 198(2) of CrPc, 1973

[3] Article 14 of Indian constitution

[4] Article 15 of Indian constitution

[5] Article 21 of Indian constitution

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