Adultery joseph shine v uoi, Papers of Criminal Law

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KINJAL KEYA

ADITYA PRATAP SINGH

CASE SUMMARY

JOSEPH SHINE V. UNION OF INDIA

TITLE OF THE CASE:

Joseph Shine vs. Union Of India on 27 September, 2018 PETITIONER: JOSEPH SHINE RESPONDENT: UNION OF INDIA EQUIVALENT CITATION: 2018 SC 1676 DATE OF JUDGMENT: 27 SEPTEMBER, 2018 BENCH: Justice Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, R.F Nariman INTRODUCTION:- Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Although The Constitution of India promises equal rights to both men and women, gender disparities still remain. In the said case summary of Joseph Shine v. Union of India , constitutionality of section 497 of IPC and section 198 of CrPC was challenged. Section 497 categorizes adultery as an offence. It is violative of article 14, 15 and 21 of The Indian Constitution. Right to intimate association is facet of privacy which is protected under Article 21. It is unconstitutional because of the fact it attacks on the individuality of a woman. The court in this case noted that the concept of gender neutrality in following provision is absent. Moreover, adultery’s definition in our IPC is also crooked. As per Black’s Law Dictionary, adultery is the

prosecute her husband under Section 497. It was also challenged on the basis that it does not makes a man liable of adultery for an extra marital relationship with unmarried woman. In this judgment it was pointed out usually men are considered as seducer and not women. This position might have undergone change over years due to change in society. However this judgment fails to deal with the actual issue i.e the provision violating fundamental rights of woman.

3. V. Revathi v. Union of India :^3 In this case Section 497 was challenged on the grounds that it disables the wife to prosecute her disloyal husband. The Court upheld section 497 stating that the absence of provision of suing disloyal husband is well balanced by the inability of husband to prosecute his adulterous wife. 4. W. Kalyani v. State^4 : In this case, section 497 was challenged on the ground that it was discriminatory and treated woman as property of a man. ISSUES RAISED

1. Whether section 497 is violative of Art. 14 of The Indian Constitution?
2. Whether section 497 is violative of Art. 15 of The Indian Constitution?
3. Whether section 497 is violative of Art. 21 of The Indian Constitution? ARGUMENTS IN FAVOUR OF PETITIONER (^3) AIR1988SC (^4) AIR2012SC

1. That the provision is influenced by Victorian morality which treats woman as a property of man. This provision is age old and with society changing such provision needs to be amended.
2. That it grants relief to the wife of another man by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved.
3. That the definition of adultery under Section 497 is vague. It only criminalizes the extra marital affair of a man with a married woman excluding widows, unmarried women and divorcees under the ambit of definition of Section 497.
4. That Section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery.
5. That it arbitrarily assumes that man is always a seducer and ignores woman as an abettor.
6. That the provision is gender discriminatory as the wife of adulterous male cannot prosecute her husband. This provision is therefore discriminatory against women violative of Article 14
7. That the provision creates invidious distinctions based on gender stereotypes creating a dent in individual dignity of a woman thus violating Art. 21.
8. That it treats similarly situated person unequally on basis of sex alone violating Art. 14.
9. That criminalizing a consensual sexual relationship between a man and woman is violative of the Right To Privacy guaranteed by Art 21. Right to intimate relationship is facet of privacy.
10. That the provision is based on gender stereotypes about the role of women and violated the nondiscrimination principle embodied in Art. 15 ARGUMENTS IN FAVOUR OF RESPONDENT:
11. That the challenge was to the fact that section 497 of the Indian Penal Code 1860, discriminates on basis of sex and is violative of article 14 (Right to equality) but Article 14 is general and must be read with other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, treating wife as an abettor is upheld as a special

discriminatory its an affirmative action to ensure that citizens belonging to the class of women and children can prosper and their socio-economic growth is not pondered.

7. That the act of adultery is essentially violence perpetrated by an outsider, with complete knowledge and intention, on the family which is the basic unit of a society. And in this act both mental and physical elements which are essential to constitute a crime are present JUDGEMENT [RATIO DECIDENDI AND OBITER DICTUM] RATIO DECIDENDI “Ratio decidendi” is the rule of law on which judicial decision is based. It is legally binding. On 27 September 2018, the court delivered its judgment in this case unanimously which held that section 497 of IPC is unconstitutional. The bench comprised of then Chief Justice Dipak Mishra, Justice R.F Nariman, Justice A.M Khanwilkar, and Justice DY Chandrachud. It held that section 497 of IPC violated the fundamental rights of equality, liberty and privacy mentioned under Art. 14, 15 and 21 of the Indian Constitution. It struck down section 497 of IPC. Section 497 stated that – “Whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be wife of another man, without the consent or convenience of that man. Such sexual intercourse does not amount to rape and is guilty of adultery.” The Apex Court has declared section 497 unconstitutional but regards it as a moral wrong and can be used as a reason for divorce. Obiter Dicta

‘Obiter Dictum’ is the expression of views of a judge in the written judgment, it indicates at the different issues touched upon by the judge in the process of writing that judgment. Although on the legal front it is not essential to the judgment neither has the binding value as a precedent. In this case of Joseph Shine v. Union of India 2018 the court held:- ‘Section 497 IPC effectively creates invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution.’ Bench further stated that: ‘In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation.’ Hon'ble Chief Justice of India emphasized on the fact that the colonial provision of section 497 of the Indian Penal Code has not kept pace with the changing times and socio-economic scenario. Though might appear to the contrary on face value but it has become a tool of suppression of women and despite of its penal nature it discriminates solely on basis of gender without any just reason. ‘Adultery is the cause of the breakdown of a marriage, while it is now widely recognized that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship.’ Breakdown of Marriage is not a direct consequence of adultery while its been observed that unhappy marital relations give rise to the same, socially for the institution of marriage to remain sacrosanct and strengthen in modern times it should depend on trust and respect rather than the deterrence of such biased laws. ‘The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action’

Hon’ble Chief Justice of India Deepak Mishra and Justice A.M. Khanwilkar used previous judgments to highlight that though this section claims that it is beneficial for women and the differentiation done by it on basis of gender over criminal prosecution is covered under article 15(3) of the Indian constitution it is actually increasing the fragility of a married woman in the longer run by putting all the onus of decision making on the husband. Using previous precedents Sowmithri Vishnu v. Union of India^5 and Yusuf Aziz v. State of Bombay^6 the court highlighted the notion that only the man can be a seducer and a woman can never be liable of adultery are wrong. These notions do not help to safeguard women but make them prone to dependence on men and weaken their individual identity in the longer run. This provision has not helped in improving the socio-economic condition of women instead it has been undermining their dignity. Madhu Kishwar v. State of Bihar^7 case was used to emphasize on the fact that Indian women have suffered in silence, they have been subject to exploitation and discrimination in name of established societal norms and orthodox social responsibility. Charu Khanna Vs Union Of India^8 was used to focus on dignity in general and dignity of women in particular. Justice RF Nariman also reiterated the fact that section 497 of IPC clearly violates Article 14 and Article 21 of the Indian Constitution. It differentiates solely on grounds of sex without any justified reason and criminal prosecution is gender neutral and are is not a ground for affirmative action protected under Article 15(3) for the betterment of women and children. The abovementioned section considers women as a property of their husband with no decision- making competency thereby questioning their ability to live an independent life and curbing their liberty and tarnishing their dignity. Bench held this section unconstitutional and hailed it as an essential step in confronting patriarchy and vital for transformative justice in India. Justice DY Chandrachud overturned his father YV Chandrachud’s judgement from the Sowmithri Vishnu case and he raised some important questions which proved essential in deciding this case. He emphasized that very often, adultery happens when the marriage has already broken down and the couple is living separately. Working women are subjected to domestic violence and when they seek divorce it’s a long drawn judicial process so if she looks for love, affection and solace in another man, can she be deprived of it. He also used Indu (^5) Supra (^6) Supra (^7) AIR1996SC (^8) AIR2015SC

Malhotra’s judgement from Navtej singh johar v. Union of India^9 insisting Respect for sexual autonomy must be emphasized. Marriage does not preserve ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage. Striking down the Section he called it the Rule of patriarchy. Justice Indu Malhotra was the only women in the bench to decide on this issue and she addressed it with all the sensitivity it deserved, she laid the focus on its historical background and how indo-brahmin scriptures promoted the idea of husband controlling his wife sexually. Right to Privacy is an inalienable right and the issue in contention is of civil and private nature and the state has absolutely no right to interfere in it. Ruling it unconstitutional she called it flagrant gender discrimination. Section 497 of the Indian Penal Code was a patriarchal law of the colonial time which had become useless in the modern scenario, it was undermining the liberty and freedom of women and violating certain very essential parts of the constitution, as the society dynamically moves towards a more liberal and open-minded approach such statutes will find it hard to survive. PRESENT STATUS OF JUDGMENT The Apex Court declared that adultery is unconstitutional. As per present status, adultery is no more a criminal offence. CONCLUSION Our constitution guarantees equal rights to every person. It also guarantees right to liberty and privacy. Provisions like adultery create a dent in Indian Constitution as it is discriminatory. It is a Victorian law which discriminates woman and treats them as a property of their husband. In the case of “Joseph Shine v. Union Of India”, Apex Court has tried to make provisions of Indian Penal Court,1860 gender neutral. (^9) AIR2018SC