Adultery- A Decriminalized Offence

Case Name – Joseph Shine Vs. Union of India

Citation – 2018 SC 1676

Date of Judgement – September 27, 2018

Bench – Hon’ble Chief Justice of India Deepak Mishra,

Hon’ble Justice A.M Khanwilkar, Hon’ble Justice Indu Malhotra,

Hon’ble Justice D. Y Chandrachud, Hon’ble Justice R.F Nariman.

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 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 case the wife shall not be punishable as an abettor.

Section 198(2)

For the purposes of sub- section (1), no person other than the husband of the woman 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 woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.

Background

1. The first case where the constitutional validity of the sec 498 of IPC was questioned was Yousuf Abdul Aziz Vs. The State of Bombay where the court held that the provision is constitutionally valid stating its validity as per article 15(3) of the constitution which runs as “Nothing in this article shall prevent the State from making any special provision for women…” hence the appeal was dismissed.
2. In Sowmithri Vishnu v. Union of India and Anr, a petition was filed challenging the validity of the adultery law where the court held that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. And Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind of extramarital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. Hence, the writ petition was dismissed.
3. In Revathi v. Union of India and Ors the court held that-The community punishes the outsider who breaks into the matrimonial home and violate the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, and alone shall be punished and not the woman. Further it was observed that the provision does not arm the two spouses to hit each other with the weapon of criminal law. That is why 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. There is thus reverse discrimination in favour of the woman rather than against her. The law does not envisage the punishment of any of the spouses at the instance of each other. Hence, the court held that the provision in question is therefore not vulnerable to the charge of hostile discrimination against a woman and cannot be successfully assailed from that platform. The petition was therefore fail and dismissed

Facts

Joseph Shine a non- resident Indian filed a writ petition under article 32 of Constitution of India challenging the constitutional validity of sec 497 of Indian Penal Code read with sec 198(2) of Code of Criminal Procedure being violative of article 14, 15 and 21 which are the fundamental rights enshrined in part III of Indian Constitution. The rationale behind this writ petition that the provision of adultery is discriminatory on the basis of sex, being arbitrary and promoting male chauvinism.

Issues Involved

Whether the section 497 of IPC read with SEC 198(2) of CrPC is violative of article 14, 15 and 21 of Constitution of India.

Submission Of The Parties

• Petitioner

1. The petitioner submitted that the Sec 497 creates discrimination among sex, where the illicit relationship is consensual the wife i.e the adulterous is not even considered as abettor but protects the women.
2. Sec 497 of IPC does not bring purview an extra marital relationship with an unmarried or widow
3. Sec 198(2) of CrPC consider the husband of the women as aggrieved and does not consider the wife of the adulterator as the aggrieved. Simultaneously, it does not enable the wife to file any complaint against the husband who is involved in the adulterous relationship.

• Respondent

1. The respondent submitted that the adultery law was made to protect the sanctity of marriage as marriage occupies an important role in the society.
2. Further, that there can be no discrimination in general, as the Constitution itself provides for special provision in the case of women under art 15(3).

c)The principle underlined in this provision was to safeguard the institution of marriage and protect the privacy of the matrimonial unit.

Judgment

1. Protection of the women under art 15(3) of the Constitution is not valid which cannot be employed. Section 497 of IPC is struck down as unconstitutional being violative of the articles 14, 15 and 21 of the Constitution.
2. Sec 198(2) of CrPC shall be unconstitutional to the extend which is applicable to the offence of adultery under sec 497 of IPC.
3. The decisions in the Yousuf Abdul Aziz Vs. The State of Bombay, Sowmithri Vishnu v. Union of India and Anr and Revathi v. Union of India and Ors are overruled.

Conclusion

Adultery is still treated as criminal offence in the countries such as Afghanistan, Bangladesh, Indonesia, Pakistan, United Arab Emirates, Algeria, Egypt, Nepal, Morocco and few more.

In India adultery is no longer an criminal offence for being violative of article 14, 15 and 21 of Constitution of India as the provision treats the man as seducer but the women involved in the adulterous relationship as victim who is an equal participant. The provision being pre-constitutional created discrimination among the sex where at that instant of the enactment of the section the women where dependent on husbands and did not have equal rights compared to men. Hence, were considered as the property of the husband and  the society promoted the patriarchy, but now as there is progression and time being changed there was a need to reform the legislative law which is discriminatory, arbitrary which was struck down by the honorable Supreme Court which filled the gaps of evolution in the society. But adultery continues to be the civil wrong being a ground for divorce.

The article has been contributed by Rakshanda Hashmee.