Joseph Shine vs. Union of India||Case Summary|| 2018 3 SCC 39||Adultery as an offence

Adultery as an offence

FACTS

Joseph Shine, an Indian citizen living abroad, filed a writ petition under Article 32, contesting the constitutionality of Section 497 of the IPC with Section 198 of CrPc, being in violation of Articles 14, 15 and 21. The petitioner argued that the provision for adultery is arbitrary and discriminatory on the basis of gender.

ISSUES

1. Whether under Article 14, the provision for adultery is arbitrary and discriminatory as it did not allow a wife to file a complaint against her husband for adultery yet allowed the husband to file against the wife.

2. Whether under Article 15, treating women as mere property of their husbands under the provision was discriminatory towards women.

3. Whether under Article 21, the provision was in violation of the rights to dignity and sexual autonomy of women, as it denied the women the opportunity to take legal action against their husbands for adultery.

4. Whether the existing criminal laws are enabling the state to delve too deep into the privacy of marital relationships.

5. Whether adultery should be made gender neutral.

RELEVANT LAWS AND ARTICLES

1. Section 497 of IPC: This provision criminalized adultery by punishing a man who had sexual intercourse with another man's wife, without the consent or connivance of the husband. The section did not, however, make the woman an abettor to the offence, thereby creating a glaring gender imbalance in its application.

2. Section 198(2) of CrPc: This provision gave that no court was entitled to take cognizance of an offence under any Chapter of the IPC (which encompasses adultery) unless there was a complaint made by the husband of the woman concerned. This provision actually made the husband the only aggrieved party in cases of adultery.

3. Article 14 (Equality before Law), Article 15 (Prohibition of Discrimination) and Article 21 (Protection of Life and Personal Liberty).

JUDGEMENT

The Supreme Court In Joseph Shine vs. Union of India observed that Section 497 of the IPC was arbitrary and unconstitutional in practice. The Court observed such:

1. The law was based on the outdated idea on patriarchy where women were considered property of their husbands and by only criminalising adultery for men and not holding women accountable, it was perpetuating gender stereotypes.

2. The Court also took into cognisance that human sexuality is a critical part of an individual’s identity and by criminalising adultery, it violated a woman’s sexual autonomy, right to privacy and dignity.

3. The judgment cited the principle of constitutional morality, underscoring that equality must be guaranteed in every aspect of life, including that of marriage. The legislation has been characterized as paternalistic, providing "protective discrimination" to women, which was found by the Court to be a case of unjustified patriarchal domination and not protection.

4. In reference to the landmark case of Puttasawmy v Union of India, the Court reiterated that the right to privacy is fundamental and inviolable. Adultery therefore, being a private matter between adults, should not be criminalized.

5. The Court pointed out that adultery is a civil wrong, and it was not to be made a criminal offence. The Court underscored the fact that criminal law is intended to deal with something which impacts the society as a whole, whereas adultery, being a personal matter, could be addressed by using civil remedies such as divorce.

   
   

   Vinita Pathak