Sukriti Goyat
Institute of Law, Kurukshetra University
CASE NOTE:
Citation: 2018 SC 1676.
Decided on: 27 September 2018.
Quorum: Dipak Mishra, R.F Nariman, A.M Khanwilkar, D.Y Chandrachud, Indu Malhotra.
INTRODUCTION:
Section 497 of the Indian Penal Code, hereinafter referred to as IPC, dealt with the provision relating to adultery. Section 497 read as follows:
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 offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.“
This 158-year-old Victorian law based on morality was scraped by the Honourable Supreme Court on 27 September 2018 in the case of Joseph Shine vs. Union of India. The Hon’ble 5 Judge bench headed by CJI Dipak Mishra held the law unconstitutional as it ‘treats the husband as the master’. This law was challenged by Joseph Shine, a non-resident Keralite through a PIL on the ground that it violates the right to equality and adds to the misery of women as they have become the slaves of the husbands.
As of now, adultery is no more a criminal offence in India though it continues to be a ground for divorce under personal laws for both the spouses.
JUDICIAL HISTORY:
October 2017 was not the first time that this law was challenged. It has a history of many judicial pronouncements. This law was first challenged in the famous case of Yusuf Aziz vs. State of Bombay[i] in 1951 on the same ground that it violates the right to equality as provided under Articles 14 and 15 of the Constitution. However, the argument was differently framed. It was argued that the law is biased and men are being discriminated as women could not be punished under the Section not even as an abettor. The law gave women the right to commit adultery. The Honorable Supreme Court came up with a decision in 1954 and held that the impugned law was not violative of Article 14 nor Article 15. However, the court gave a bizarre reason behind this decision stating that it is the man who is the seducer and not the woman. In a contrary position, J. Indu Malhotra, in Joseph Shine case, observed that adulterous women can’t be treated as a victim and the man, seducer.
The second judgment came up in 1985 in the case of Smt. Sowmithri Vishnu vs. Union of India and Anr.[ii] In this case the petitioner challenged the validity of Section 497 IPC on the ground that it is violative of Article 14 as the classification between men and women is irrational and it does not give women the right to prosecute an unmarried woman. While dismissing the petition the bench of CJ. Y.V. Chandrachud held that it is a matter of policy and it is upon the legislature to think and make necessary changes. The bench observed that if we go on to change this law, many other provisions need to be changed. It was also observed, “No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.”
Another important judgment was given by the Supreme Court in V. Revathi vs Union of India & Ors.[iii] in the year 1988. Here Sections 198(1) and 198(2) of the Cr.P.C. were challenged by a woman as violative of Article 14. The Honorable Apex Court observed, “…neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her.” The petition was dismissed accordingly.
Finally, it was Joseph Shine vs. Union of India that went on to shatter the old notions and destroy the foundation of these earlier judicial pronouncements. The case can be summarised as follows:
FACTS OF THE CASE:
A non-resident Keralite, Joseph Shine, filed a Writ Petition under Article 32 of the Constitution of India before the Supreme Court challenging the validity of Section 497 of IPC seeking justice by declaration of the law as unconstitutional. His friend in Kerela committed suicide after a woman co-worker initiated false proceedings of rape against him. The petitioner challenged it on the ground that it violates the right to equality and is biased against men. It has become a tool to seek vengeance. Moreover, it is a tool for the husband to enslave his wife. The question regarding the petitioner’s locus standi was also raised as he was not a citizen of India however, the court decided to allow the petition.
ISSUES:
I. Whether Section 497 of I.P.C. is unconstitutional being violative of Articles 14, 15 and 21 of the Constitution?
II. Whether Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. is unconstitutional?
JUDGMENT:
The matter was referred to the five-judge constitutional bench which declared that Section 497 of IPC is unconstitutional as it is violative of Articles 14, 15, and 21 of the Constitution.
Section 198(2) of Cr.P.C., which contains the procedure regarding the same, was also held unconstitutional to the extent that it relates to Section 497 of IPC.
The court analysed the matter deeply and gave point-to-point observations. Various points are analysed based on the reasonableness of the said law. The history of the law as well the reasons to scrap it is discussed in detail in the judgment. The important pointers from the elaborate judgment are discussed below:
A. Violative of Fundamental Rights:
Hon’ble Supreme Court observed that the law relating to adultery violates the fundamental rights. CJI Dipak Mishra observed that the law violates Article 15(1) of the Constitution which says states that “the State shall not discriminate against any citizen on grounds only of….sex.” The same is subject to Article 15(3), which runs as, “Nothing in this article shall prevent the State from making any special provision for women….” On this point, Chief Justice Dipak Mishra observed that the impugned law is not beneficial for women rather it is a tool to suppress them and make them a chattel of their husbands.
It violates the right to privacy as provided under Article 21. A woman is not the property of her husband and she has all the rights to make decisions for herself. The law is arbitrary as there is no reasonable nexus with the purpose to be achieved. Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are fulfilled:
Firstly, the classification must be based on intelligible differentia, which separates certain people of a group from others. Secondly, the intelligible differentia must have a reasonable nexus with the object sought. However, there is no close relation between the classification and the object. The law nowhere benefits women against suppression or patriarchy. It only adds to the misery of the women.
B. Based on patriarchy:
The adultery law was based on morality and considers a woman as the property of her husband, a passive object. Justice D.Y. Chandrachud observed that this law only redresses the harm caused to the husband. The patriarchal norms resulted in the enactment of this law and it is grounded in stereotypes. While considering the issue of patriarchy and the submissive character of women in marriage he observed, “Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence.“
C. A private wrong, not a public wrong:
Justice Indu Malhotra was of the view that a public element must be there in the wrong for a criminal sanction. Crime affects the society at large and not a single person. However, adultery does not affect society. It only affects the spouse and the wrong is committed against that person only. This makes it a private wrong and not a public wrong. She observed that the State must follow the minimalist approach while criminalizing the offences and should respect the autonomy of the individuals in their private matters.
D. Adultery, an obsolete law:
The adultery law is obsolete in today’s scenario. The classifications were made back in 1860 when women had no rights and were considered as the property of their husbands. Today, it violates the right to equality and freedom. With all these considerations, the Supreme Court of India declared Section 497 to be constitutionally invalid. The procedural law as provided under Cr.PC was also declared invalid to the extent that it relates to Section 497 of IPC.
CRITICAL APPRAISAL:
The PIL challenged the constitutional validity of Section 497 on the ground that only the male is punished under this law and the female is not even considered as an abettor. The law violated the right to equality as provided by the Constitution. However, the Hon’ble Supreme Court declared the whole provision as constitutionally invalid. There is no law related to adultery now except to get a divorce under Hindu Laws. The consequences of this action would be detrimental to society.
Family is the smallest unit of society and marriage is the base of that family. It is the most sacred institution which will be destroyed as there is no law to protect it from the outsider. There is no remedy for the spouse against whom the wrong is committed except to get a divorce. Under Hindu Laws, it is the basic principle that a wrongdoer cannot take advantage of his own wrong. This very principle behind the divorce provisions would have no value now. It would only benefit the wrongdoer.
The Law Commission in its 42nd and 156th report had already analysed the provisions relating to adultery and suggested amendment to this provision instead of scrapping it in its entirety. In its 42nd report, the Law Commission recommended the following: “After much discussion and careful consideration, we are of the opinion that the exemption of the wife from punishment under S. 497 should be removed, that the maximum punishment of five years imprisonment prescribed in the section is unreal and not called for in any circumstances and should be reduced to two years, and that with these modifications, the offence of adultery should remain in the Penal Code.”[iv]
In its 156th report, the commission recommended that, “The section confers only upon the husband the right to prosecute the adulterous male but does not confer any right on the aggrieved wife to prosecute her adulterous husband. It was recommended to introduce an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery. The proposed change was to reflect the transformation of women’s status in Indian society.“[v]
Malimath Committee also recommended that the same punishment should be given for the same act. The committee emphasised that females should also come within the ambit of Section 497 of IPC. It recommended that, “A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to the wife who has sexual intercourse with a married man…“[vi]
In various cases earlier, the Supreme Court has observed that it is upon the legislature to amend the law. The legislature has to deal with such practical problems after analysing the social effect of such a law. It is not easy to scrap a law without analysing the consequences it will bear on society. Adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. It is an act of outsider that violates the sanctity of marriage. With the quashing of Section 497 of the Indian Penal Code that criminalized adultery, the military is worried about discipline among its ranks. In the military, the offence of ‘stealing the affections of brother officer’s wife—a euphemism for adultery—is a serious offence that is a notch below cowardice’.[vii] It could also possibly lead to an increase in suicide rates.
It will increase the misery of a wife who is left with no option except to get divorced if her husband commits adultery. The same is with the other gender as well. It would have been better if the law was appropriately amended instead of being scrapped in its entirety.
REFERENCES:
[i]AIR 1954 SC 321.
[ii]AIR 1985 SC 1618.
[iii]1988 SCC (2) 72.
[iv]42nd Report on the Indian Penal Code, Law Commission of India Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf 23.
[v]156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 – 172 Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
[vi]Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003) Available at: https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
[vii] Sudhi Ranjan Sen, Army wants adultery to remain offence for discipline in its ranks, Hindustan Times (Sep 09, 2019), https://www.hindustantimes.com/india-news/army-wants-adultery-to-remain-offence-for-discipline-in-its-ranks/story-in6pXiyMg3861Uf68sDDrJ.html, retrieved on May 08, 2020.
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