This blog is inscribed by Sriram Bhagavatula.
Union of India
|Judges/Bench||Dipak Mishra, R.F Nariman, A.M Khanwilkar, D.Y Chandrachud, Indu Malhotra.|
|Court||Supreme Court of India|
|Respondent||Union of India.|
|Date of the judgement:||27 September 2018.|
Adultery, in India, is defined under section 497 of the Indian Penal Code, 1860. The judgment has overruled all the previous judgments that upheld the criminalization of adultery. Section 497 came into purview numerous times and it was held valid by the Supreme Court until this case was filed wherein it clearly struck down the 158 year old Victorian Morality Law on Adultery. A non-resident of Kerala, Joseph Shine filed this petition, raising questions on the constitutionality of the section 497 IPC.
After the pronouncement of this judgment, adultery is not illegal but not yet ethical from the society’s perspective. The marriage is based upon the confidence of partner in each other. The court denied from interfering in to personal and moral lives of the individuals. Hence, adultery is now a civil wrong and not a criminal offence for which the remedy is divorce.
Section 497 of the Indian Penal Code  states that-
“Whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be the wife of another man, without the consent or connivance of that man. Such sexual intercourse does not amount to the offence of rape and is guilty of adultery.”
Section 497 further states that a man found guilty of adultery shall be punishable with imprisonment of either description for a term, which may extend to the five years or with fine or both.
Procedural Background Of Section 497 Of Indian Penal Code:
There were several times before this case wherein the question rose on the constitutional validity of section 497 of Indian Penal Code and section 198 of Criminal Procedure Code before the of Supreme Court of India.
This matter started from the case of Yusuf Abdul Aziz v. State of Bombaywhere the husband was accused of adultery via, Section 497 of Indian Penal Code. As soon as the complaint was filed, the husband approached Bombay High Court for checking the constitutional validity of the provisions under article 228 of the Constitution of India. The case was decided against the husband and Justice Chagla made an observation. He opined that:-
“A challenge has been put before the court, which was only to the restriction on treating a wife as an abettor.”
This provision was considered to be in violation of Article 14 of the Indian Constitution, But the court held that this provision was been protected by Article 15(3) of the constitution of India which provides for special provisions for women and children.
The history shown of Section 497 clearly indicates that adultery law always favours husband, for him to reserves an ownership over the sexual relationship of his wife. Therefore, the section has never been in the favour of the women. This law provides that any person who is engaged in sexual relation with the wife of another man and the husband of that woman gives his consent for the same then the same won’t be charged for adultery. This clearly denotes that how women are considered as an object in the hands of their husbands.
In another leading case of Sowmithri Vishnu vs. Union of Indiacertain challenges were made before the court on the basis of three grounds:-
- Section 497 does not provide any right to wife to present women with whom her husband had committed adultery.
- This section also does not include any right to the wife to prosecute her husband for the act of adultery.
- This section does not cover cases where husband is been accused for the sexual relations with unmarried women.
Justice Chandrachud, in this case stated that going by literal interpretation of the definition, the offence of adultery could be committed only by men and not by women. He added that the case has failed to deal with the real problem i.e. constitutional Jurisprudence which have direction on validity of section 497.
In another case, V Revathi v. Union of IndiaThe court apprehended that this particular section does not permit either the husband of the offending wife to prosecute her nor it wife of the offending husband for being disloyal to her. Therefore, neither of the spouses can bring a charge against their disloyal nor offending spouses. Henceforth, this section does not discriminate on the basis of sex.
Facts Of The Case:
Joseph Shine, a non- resident of Kerala challenged the constitutionality of the section 497 of Indian Penal Code read with Section 198(2) of CRPC. The petitioners contended that Section 497 of IPC turns out to be an impediment in the accomplishment of gender justice. It was emphasized that as per section 497 of the Indian Penal code, adultery is an offence by a man against another man on the other hand the section fails to meet with the requirement of equal treatment before the law which is guaranteed under fundamental rights in the Indian Constitution and no discrimination against any person on the basis of sex ‘only’. The main reason behind this petition was to shield Indian men from being punished for extra marital relationships by vindictive women or their husbands. In the present case Petitioner’s (Joseph shine) close friend committed suicide in Kerala after a women co-worker made malicious rape charge on him. Further section 497 is a dangerous occurrence of gender unfairness and male patriotism. The conventional framework, under which section 497 was drafted, is no longer applicable in this modern and progressive society.
Issues Involved In The Present Case:
- Whether the provisions of the Indian Penal Code regarding Adultery i.e. Section 497 and Section 198(2) of Criminal Procedure Code are constitutionally valid?
- Whether section 497 of IPC discriminates on grounds of sex ‘only’?
- Whether Adultery should be treated as a criminal offence?
- Whether the provision contained in Section 497 of IPC and Section 198 of CrPC is fit as per today’s constitutional morality?
- Whether section 497 comes under the beneficial legislation ambit provided to women by Article 15(3)of the Indian Constitution?
In December 2017 Joseph Shine filled a petition challenging the validity of Section 497.The three judges bench transferred this case to five judges bench stating that the presumptions made are too old fashioned.
While hearing the matter previously the court held that the law seemed to be based on certain social presumptions,the court struck down the law and declares that the husband is not the master of the wife.
The judgment has the following conclusions:-
- Section 497 is arbitrary and is constitutionally invalid. Section 497 disposes women from her right, self-respect and privacy. This particular provision is considered as the violation ofher right to life and personal liberty by accepting the notion of marriage that overthrows the true equality. This section denies the substantive equality as it lay down that women are not able to give their free consent for the sexual acts and to be considered as a sexual property by their spouses. Hence, Section 497 violates of Article 14, 15, 21 of the Indian Constitution.
- Adultery is no longer be a criminal offence: Adultery is to be considered as a personal offence whereas a crime is committed against the society as a whole. Adultery does not fit in the ambit of crime, as it would interfere between the other privacy aspects of marriages. Therefore, adultery can be considered as a civil wrong and is a valid ground for divorce.
- Husband is not the master of his wife: The judgment in the case has the core focus on the issue that the wife is not a servant of the spouse. That means the husband is not the master of the wife. They have equal status in the society and should be given equal opportunity to put forward their ideas.
Analysis & Conclusion
In this recent verdict the Supreme Court has declared section 497 of Indian penal code to be not in the category of criminal offences. Now Adultery is only considered as a civil wrong and not a criminal offence which would be used a ground of divorce.
In the State of UP v. DeomanUpadhyayathe Supreme Court founded that:-
“In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with the practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.”
Adultery will affect the children and its associated family of each spouse. As the divorce is only option left, the families are left in lurch. There is no provision or any remedies for those children who are born out of such type of adulterous marriageand this current judgement nowhere has remedies regarding this problem.
Section 497 consisted loopholes in it despite being a provision which protects the institution of marriage. It would have been balanced if the amendment were made to the sections instead of striking down the Section 198 of Criminal Procedure Code. It must be clearly understood that the removal of this provision does not necessarily mean that there are no legal consequences for engaging in adultery. The consequences of adultery need not be criminal, and a remedy may be found in civil law, where adultery already has a place and is a ground for divorce in personal laws.
The court might have provided guidelines directing the central government to amend section 497 in the Indian Penal Code as an alternative to bring it in par with gender equality which is guaranteed under Indian Constitution and for the time being since such legislation is enforced, and to uphold section 497 as in the case of Shayara Bano vs Union of India