Joseph shine v Union of India

Name of the case: Joseph shine v Union of India

Citation: 2018 SC 1676

Judges: Dipak Mishra, D.Y. Chandrachud, Indu Malhotra, R.F. Nariman, A.M. Khanwilkar

Introduction

The landmark legal case Joseph Shine v. Union of India addresses the topic of adultery as covered by Section 497 of the Indian Penal Code. This case questioned the constitutionality of Section 497 of the Indian Penal Code, 1860. But because women were merely viewed as the husband’s property at the time, this pre-constitutional rule placed more emphasis on the rights of men. In India, the roots of adultery were patriarchy and the arrogance of men.

If a man is engaging in sexual activity with a woman who is married and has a husband living, then it is amounting to committing a crime. In addition, adultery is no longer committed if the husband supports her or turns a blind eye. Whether it was committed by a married man or woman, adultery was once considered to be an immoral act. In India, an adulterous woman is not seen as the perpetrator of the crime but rather as the victim of a male’s persuasion.

The values established in our constitution, such as equality, non-discrimination, the right to live in dignity, and so on are all violated by this provision. This case so sheds light on the disappointing aspect of the laws against adultery. Following this landmark decision, the Section was abolished since it was deemed to be against women and in violation of Articles 12, 15(3), and 21 of the Indian Constitution.

History

According to Section 497 of the Indian Penal Code, Adultery is defined as – “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.”

Therefore, the crime of adultery is defined as having sexual relations with the wife of another man while still married without the consent of the other man. According to Section 497 of The Indian Penal Code, 1860, the offender may pay a fine and a sentence of up to five years in prison. Adultery was a non-cognizable offence that was also bailable. However, such an offence was only penalized when done by the husband; if the wife performed the same act or assisted in its commission, Section 497 IPC does not apply. Maintaining the sanctity of marriage was apparently the main goal of this segment.

The offence of Adultery is read along with Sec 198 (2) of The Code Of Criminal Procedure, 1973 which states that – “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 the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

Therefore, it was held that only the husband of the woman with whom the act was committed can file a suit against the person with whom the physical relationship was created. Neither the woman with whom the sexual intercourse was done nor the wife of the offender can file the complaint.

Ingredients for adultery

• Sexual Intercourse must have happened between a married man and a woman whom he believes to be the wife of another man.
• The woman must have consented to such sexual intercourse.
• The act should take place without the consent of the husband of the man.
• All the parties should be proven to be married.

Facts of Joseph shine v Union of India

• The complainant, Joseph shine, filed a case challenging the constitutional Validity of Section 497 of The Indian Penal Code, along with 198 (2) of The Code of Criminal Procedure.
• A friend of the complainant died by suicide after a woman charged him with rape, however, the charge was malicious. He argued that since we believe in Equality under Article 14 of the Indian Constitution, such sections are violative of equality, a dangerous weapon, and are gender biased.
• Furthermore, the woman is not even given the right to file a complaint if her husband has sexual intercourse outside their wedlock.
• The right is only manifested with the husband of the woman with whom the sexual intercourse was committed, and in case the husband has no issues with it, no offence is committed.

Issues in Joseph shine v Union of India

• Is section 479 of the Indian Penal Code, 1860 constitutionally valid?
• Is the law gender biased, since the offence was only considered when committed by a man and not a woman?
• Should the woman of the offender be given a right to file a complaint for the act committed by her husband against the sanctity of their marriage?

Contentions from the Respondent’s Side

• The respondents argued that adultery is a crime that damages family ties and that deterrence is necessary to safeguard the institution of marriage.
• The right to privacy is not absolute and is subject to some justifiable limitations and it shouldn’t be used as an excuse to do immoral acts in the name of privacy.
• Additionally, Article 21 does not guarantee that a person who engages in extramarital sex with a married person is entitled to privacy protection.
• According to the respondents, adultery has an impact on the spouse, kids, and society at large. It is a crime for an outsider to violate the sanctity of marriage while knowing it will do so.
• Article 15(3), which gives states the authority to enact special laws for women and children, prevents the provision’s discrimination.
• Section 497 is serving as a safeguard for society against this immoral behaviour that offends the institution of marriage. Therefore, it shouldn’t be overruled.
• They urge the court to leave the provision alone and strike out only the problematic part that was ruled unlawful.

Provisions Discussed in Joseph shine v Union of India

• Section 198 (2) of The Code of Criminal Procedure – defines that only the husband can be the aggrieved party.
• Section 479 of the Indian Penal Code – defines punishment for adultery.
• Article 14 – Right to equality – Adultery only prosecuted men and women and hence, it was considered to be a violation of Article 14.
• Article 15(1) – prohibits the State from discriminating on the grounds of sex – The law only considered the husbands as the aggrieved party and no charges against women.
• Article 21 – protection of life and personal liberty – Women were treated as the property of their husbands under this law, which is against their basic dignity and individuality.

Judgement

The test that was used to determine whether a classification was manifestly arbitrary is irrelevant today since women have their own identities and can compete effectively with men in all spheres of life. This clause obviously violates Article 14.

The renowned Supreme Court ruled that women are shielded from abettor punishment by Section 497. It stated that this provision, which is protected by Article 15, is good for girls (3). In order to protect women against patriarchy and free them from subjugation, Article 15(3) was included. In order to introduce them to men, this text was written. But Section 497 is based on patriarchy and paternalism rather than being a form of protective discrimination.

The provision violates Article 15(1) of the constitution because it promotes the stereotype that women’s sexual autonomy should be controlled and is discriminatory on the basis of gender. Under Article 21 of the constitution, sexual and personal privacy are respected in their dignity. A woman’s right to privacy extends to girls as well.

A person’s autonomy is their capacity to make choices regarding important issues in life. The fundamental right to dignity and equality guaranteed by Article 21 is violated by the enforcement of forced commitment through the restriction of sexual autonomy.

Obiter dicta

The offence is based on the idea that women are a husband’s property and that adultery is seen to be a theft of his property because it states that the husband’s agreement or complicity would not constitute an offence.

Ratio Decidendi in Joseph shine v Union of India

It was noted that Section 497 shields women from punishment for aiding and abetting. It stated that girls will benefit from this provision, which is protected by Article 15. (3). In order to protect women against patriarchy and free them from oppression, Article 15(3) was included. This text was written to help them find competent men. But Section 497 is based on patriarchy and paternalism rather than being a form of protective discrimination.

Under Article 21 of the constitution, sexual and personal privacy are respected in their dignity. A girl is entitled to privacy just like any other person. A private’s autonomy is their capacity to make important life decisions.

Present Status in India

Adultery was a criminal offence under the Indian Penal Code until it was abolished by the Supreme Court of India on 27 September 2018. Adultery is no longer recognized as a crime in India however, it can be a valid ground for divorce.

Conclusion

The court made a significant legal past decision by declaring this law unlawful. In the current situation, liberalism and equality have seized control of the earth. Legislative changes are desired to do rid of laws that discriminate against women. Adultery not only diminishes a woman’s dignity but also discriminates between men and women. When society was crammed with patriarchy and paternalism, this was added as an offence.

It is understandable that there is a certain section of people who oppose this law on grounds of discrimination. But the existence of this law in India was important as it was acting as a safeguard to prevent extramarital sexual intercourse as there was punishment mentioned in this section which would stop people from engaging in such activities. Marriage is ultimately an important part of life and it should be protected at all costs.

Also, when the concept of equality is questioned in this case, the concept of equity should’ve come into place. The term “equity” refers to fairness and justice and is distinguished from equality: Whereas equality means providing the same to all, equity means recognizing that we do not all start from the same place and must acknowledge and make adjustments to imbalances. In certain cases, it is needed to treat people differently and that does not necessarily amount to discrimination.

As far as special privileges of women are concerned, Article 15(3) of the Indian Constitution gives states the authority to enact special laws for women and children, preventing the provision’s discrimination. But the whole argument of declaring it unlawful is indirectly removing the protection of the institution of marriage that was there when this law was in existence. To conclude, certain changes should be brought up to compensate for the risk that has increased after the judgement of this case as it is very essential to safeguard the institution of marriage from being broken.

By: Misbah Khan, a student at UPES, Dehradun.