SARDAR PATEL INSTITUTE OF LAW

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, U.P.

SUBJECT: Human rights law, practice and RTI

Case comment

On

Joseph Shine v. Union of India

SUBMITTED TO:

Assistant professor: - Mrs. Afreen Almas

SUBMITTED BY:

Parag Singh

B.A. LL.B IXth SEMESTER

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

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ACKNOWLEDGEMENT

I would like to give special thanks to my teacher Prof. ‘Mrs. Afreen Almas ’ who
gave me the golden opportunity to do this case comment on “Joseph Shine v. Union
of India” which helped me in doing a lot of research and I came to know about so
many new things I am really thankful to her. Secondly I would like to thanks my
parents and friend who helped me a lot in finalizing this project within the limited
time fit.

………………………

Parag Singh

B.A. LL.B.

IXth SEMESTER

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TABLE OF CONTENTS

1. INTRODUCTION ………………………….…………………………….……………4
2. HISTORICAL BACKGROUND ………………………………………...…………..5-6
3. FACTS OF THE CASE …………………………………………………..………..….6
4. ARGUMENTS
 PETITIONER
 RESPONDENT
5. BENCH………………………………………………………………..……...…..……12
6. LAWS INVOLVED IN CASE………………………………………………..….……13
7. COURT JUDGMENT ……………………………………………………….…..….14-15
8. COMMENT & CASE ANALYSIS ……………………………………………....…16-18
9. CONCLUSION………………………………………………………………..……….19

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INTRODUCTION

Subject: - Adultery, Section 497 (IPC), Fundamental Rights

In India, Adultery law is defined in Section 497 of Indian Penal Code. Section 497 comes under

the purview of the courts several times in the past but everytime Supreme Court held section 497

as valid. But the Supreme Court on 27th September 2018 in the case of Joseph Shine v. Union of

India1 has brought down the 158 years old Victorian Morality law on adultery. The petition was

filed by a non resident of Kerala named Joseph Shine who has raised question on the

constitutionality of the section 497 of the Indian Penal Code.

The judgment has overruled all the past judgments which upholds the criminalization of adultery.

Now, adultery is become legal but it is still not ethical with the society. The institution of marriage

is based on the trust between both the partners i.e. husband and wife. Therefore, Honorable

Supreme Court of India does not interfere in the personal and moral lives of the people. Currently,

adultery is only considered as a civil wrong and the remedy for the act of adultery is only divorce.

1
2018 SC 1676

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HIS TORICAL BACKGROUND

BACKGROUND OF THE SECTION 497 OF INDIAN PENAL CODE:

There were several times before where the question has been arisen on the constitutional validity
of section 497 of Indian Penal Code and section 198 of Criminal Procedure Code in front of
Supreme Court of India.

It has been begin with the case of Yusuf Abdul Aziz v. State of Bombay[2] where the husband was
accused of adultery under section 497 of Indian Penal Code. But when the complaint was filed,
the husband went to the Bombay High Court to check the constitutional validity of the provisions
under article 228 of the constitution of India. The case was decided against the husband and an
observation was made by Justice Chagla about the assumption laid down in section 497.

This history of section 497 clearly provides that adultery law was always in the favor of husband,
for him to reserves an ownership over the sexual relationship of his wife. Therefore, this section
was never been in the favor to the benefit for the women. This law provides that any person who
are engaged in sexual relation with the wife of another man and the husband of that women gives
his consent for the same then such act won’t be charged for adultery. This clearly denotes that how
women are considered as an object in the hands of their husbands.

There was another case Sowmithri Vishnu v. Union of India,[3]where the challenges were made
before the court on the basis of three grounds –

1. Section 497 does not give any right to wife to presents a wpmen with whom her husband
had committed adultery.
2. This section does not give any right to the wife to prosecute her husband for the act of
adultery.

 This section does not covers cases where husband had sexual relations with an
unmarried women.

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At first sight, it may appear that this section was for the benefit for the women but on deep
examination, it was founded that the provisions are contained which are based on the assumptions
that women are like chattels of men. In this case, Chief Justice Chandrachud stated that by
definition, the offence of adultery can committed only by men and not by women. This case fails
to deal with the actual problem i.e. the aspects of constitutional jurisprudence which have bearing
on the validity of section 497.

In another case, V Revathi v. Union of India[4] the court held that this 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, since neither of the spouses can bring a charge against their
disloyal nor offending spouses. Hence, this section does not discriminate on the basis of sex.

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FACTS OF THE CASE

1. That Joseph Shine, the hotelier challenged the constitutionality of the section 497 of

Indian Penal Code.

2. That The core reason behind this petition was to shield Indian men from being

punished for extra marital relationships by vengeful women or their husbands.

Petitioner’s close friend in Kerala committed suicide after a women co-worker made

malicious rape charge on him.

3. That the further section 497 is an engregious occurrence of sexuality unfairness,

authoritative imperialism and male patriotism.

4. That the traditional framework in which section 497 was drafted, is no longer

applicable in modern society.

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ARGUMENTS FOR PETITIONER

1. Whether Sec 497 of the Indian Penal Code, 1860 is unconstitutional being unjust, illegal,

arbitrary and violative of fundamental rights ?

The arguments in favour of petitioners are as follows:

 The historical background, in which Sec 497 was framed, is no longer relevant in

contemporary society.

 Sec 497 IPC and Sec 198 CrPC by its very nature is arbitrary and violates Art 14 of

the constitution as it deprives women of the right to prosecute an adulterous husband.

It offends the requirement of equal treatment and discriminates on the basis of marital

status.

 Section 497 criminalizes adultery based on a classification made on sex alone, such a

classification bears no rational nexus with the object sought to be achieved and is hence

discriminatory.

 Under Sec 497, it is only the male- paramour who is punishable for the offence of

adultery. The woman who is pari delicto with the adulterous male, is not punishable,

even as an ‘abettor”.

 The right to privacy under Art 21 would include the right of two adults to enter into a

sexual relationship outside marriage ( Shafin Jahan v. Ashokan K.M & Ors).

 Art 15(3) cannot operate as a cover for exemption from an offence having penal

consequences as a section which perpetuates oppression of women is unsustainable in

law, and cannot take cover under the guise of protective discrimination.

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 . A legislation which takes away the rights of women to prosecute cannot be termed as

‘beneficial legislation’ under Art 15(3). Further the consent of the woman is irrelevant

to the offence.( Kalyani v. State of Tr. Inspector of Police and Another)

The Court observed that on reading of Sec 497, women are treated as subordinate to men in as

much as it lays down that when there is connivance or consent of the man, there is no offence. It

treats her as the property of man and totally subservient to the will of the master.

It would be unrealistic to proceed on the basis that even in a consensual relationship, a married

women who knowingly and voluntarily enter into a sexual relationship with another married man,

is a ‘victim’ and the male offender is the ‘seducer’. Section 497 IPC does not bring within its

purview an extra marital relationship with an unmarried woman, a widow or a divorced woman

Sec 497 fails to meet the three fold requirement for a restriction on Art 21 to be reasonable and

valid ie, legality, need and proportionality. ( S Puttaswamy (Retd) & Anr v. U.O.I & Anr)

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ARGUMENTS FOR RESPONDENT

1. Whether Sec 497 of the Indian Penal Code, 1860 is unconstitutional being unjust, illegal,

arbitrary and violative of fundamental rights?

The arguments in favor of the respondents are as follows:

 The freedom to have a consensual sexual relationship outside marriage by a married

person, does not warrant protection under Art 21. And moreover the right to privacy

and personal liberty is not an absolute one and it is subject to reasonable restrictions

when legitimate public interest is involved.

 Since Sec 497 was a special provision for the benefit of women, it is saved by Art 15(3)

which is an enabling provision providing for protective discrimination.

 An act which outrages the morality of society, and harms its members, ought to be

punished as a crime. Adultery falls squarely within this definition.

 Family is the fundamental unit in society, if the same is disrupted it would impact

stability and progress. The state therefore has a legitimate public interest in preserving

the institution of marriage.

 Adultery has the effect of not only jeopardizing the marriage between the two

consenting adults, but also affects the growth and moral fibre of children. Hence the

State has a legitimate public interest in making it a criminal offence.

 Though adultery may be committed in private it is not a victim-less crime. It violates

the sanctity of marriage, the right of a spouse to marital fidelity of their partner and

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breaks the fundamental unit of the family affecting the growth and well being of the

children, the family and the society in general.

 By deterring individuals from engaging in conduct which is potentially harmful to a

marital relationship, Sec 497 is protecting the institution of marriage, and promoting

social well being.

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BENCH

 Name of the Judges: (Supreme Court India)

o Dipak Mishra, R.F Nariman, A.M Khanwilkar, D.Y Chandrachud, Indu

Malhotra

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LAWS INVOLVED IN CASE

1. Constitution of India 1950- Arts. Article 14, 15(3),21 & 32, In the Instant Case, the

petition filed for the enforcement of the Fundamental rights of the Persons with

disabilities.

2. Indian Penal Code, 1860- Section 497- Punishment for Adultery

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COURT JUDGMENT

Supreme Court held;

In December 2017, Joseph Shine has filed a petition raising the question on the constitutional
validity of section 497. A three judge bench headed by then CJI Dipak Mishra has referred this
petition to a five judge constitution bench which comprised of CJ Dipak Mishra, and Justices R.F
Nariman, A.M Khanwilkar, DY Chandrachud, and Indu Malhotra.

The court had observed that law is based on certain ‘Societal presumption’. In four different
judgments, the court has struck down the law and declared that husband cannot be the master of
his wife. The judgment held the following things:-

 Section 497 is archaic and is constitutionally invalid :-

Section 497 disposes women from her autonomy, dignity and privacy. It is considered as the
encroachment on her right to life and personal liberty by accepting the notion of marriage which
overthrows the true equality. Equality is overthrow by adopting the sanctions of penal code to a
gender based approach to the relationship of man and woman. Sexual autonomy falls within the
area of personal liberty under article 21 of Constitution of India. It is very much important in a
relationship the expectations that one has from the another. When both the spouses respect each
other with equality and dignity then only the respect for sexual autonomy is established.

This section denies the substantive equality as it provides that women are not able to give her free
consent for the sexual acts in a legal order which considers them as a sexual property of their
spouse. Therefore, section 497 is violative of article 14 of the Indian Constitution and it also
violates the non discrimination clause of article 15 of the Constitution of India. This section also
lays strong emphasis on the consent of the husband which leads to the subordination of women.
Hence it clearly violates the article 21 of the Constitution of India.

 Adultery is no longer be a criminal offence:-

A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery
does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of
marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

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 Husband is not the master of his wife:-

The judgment focuses on the fact that women should not be considered as the property of their
husband or father anymore. They have equal status in the society and should be given every
opportunity to put their stance forward.

 Section 497 is arbitrary

In the whole of the judgment it was pointed out that nature section 497 is arbitrary. As husband
can give his consent to allow his wife to have an affair with some other person. Hence, this section
does not protect the ‘sancity of marriage’. This section preserves the proprietary rights of the
husband that he has over his wife. This section does not allow the wife to file a petition against
her husband. This section does not contain any provision which deals with a married man having
an affair with unmarried women.

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CASE ANALYSIS

In the recent case, the Supreme Court of India has struck down the section 497 of Indian Penal

Code. The court has restricted the institution of marriage on which strong foundation of Indian

society is based. This will lead to the ceasation of crimes related to adultery. This verdict leads to

the sexual anarchy. Adultery is no more considered as a criminal offence. It is only considered as

a civil wrong and adultery can only be a ground for divorce. But the reasons are not so much

convincing and hence this cannot become Lex Loci. If adultery is not considered as a crime then

divorce on this ground would be an unamending chase. Criminal law is considered as a guardian

of the moral principles of the Indian society.

“If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative

would always exist.”

In the State of UP v. Deoman Upadhyaya2], the 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

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.”

The motive of legislature behind this is to protect the women. Because of this reason, while drafting

a new penal code in 1847, the Law Commission mentioned the liability of only male offender.

2
1960 AIR 1125

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However, it is on the discretion of the legislature to decide what acts comes under the crime and

what act does not.

Adultery also affect the children and associated family of the offending spouses and victim

spouses. As divorce is the only option left, the children of the offending and victim spouses are

left in the lurch. The current judgment does not provide for any remedies for those children who

are born out of such adulterous marriage.

Section 497 of Indian Penal Code act as deterrent so that the adulterer does not commit the same

crime again. The law fails for its enforcement but it is successful in preventing the adultery. Since

India is a semi feudal nation, the adjudication on the notion of western countries is not possible.

There are various factors which are concerned with the socio-economic order of the country are

needed to be considered.

It was well observed by Justice Frankfurter in Trop vs Dulles3

“All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune from

this human weakness. It must always be on guard against encroaching beyond its proper bounds,

and not the less so since the only restraint on it is self-restraint. The Court must observe fastidious

regard for limitations on its own powers, and thus preclude the Court giving effect to its own

notions of what is wise and politic. That self-restraint is of the essence in the observance of the

judicial oath, for the Constitution has not authorised the judges to sit on the wisdom of Congress

or the Executive Branch.”

3
(1958) 356 US 86

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As observed by the Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi4 “Adjudication

must be done within the system of historically validated restraints and conscious minimisation of

the judges preferences “, and as held in State of Bihar vs Kameshwar Singh5, “The legislature is

the best judge of what is good for the people by whose suffrage it has come into existence.”

The instant consequences will be that the suicide rates in marital relationships will increase now

and then prosecution under Section 306 relating to abetment of suicide will take place.[10]

It would have been balanced if the section was amended instead of being struck down. The

exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of

it.

Instead, Section 198 of Code of Criminal Procedure, 1973 should have been struck down as it

prevents wives from filing complaints against adultery.

4
(1958) 356 US 86
5
(1952) 1 SCR 889

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CONCLUSION

The debate on the law of adultery in India has proceeded in two fixed, unmoving directions: while

the Court justifies the provisions by implying that women are not fit to be given agency, men’s

rights activists (vengefully) demand that the provision be reassessed to remove the woman’s

immunity from prosecution. Both are excessively patriarchal ways of looking at the situation. The

reserved judgment has the option of departing from these lines of argumentation and focusing on

the main issue: the disempowerment of women in criminal law.

It must be kept in mind that the deletion of these provisions does not mean that there are no legal

consequences for engaging in adultery. These consequences need not be criminal, and a remedy

may be found in civil law, where adultery already has a place . It is a ground for divorce in personal

laws. Such an approach is also in conformity with the right to privacy and does not require the

State to expend its resources. Cruelty as under Section 498A, along with the definition of domestic

violence under the Domestic Violence Act, 2005 can cover the mental trauma caused to a woman

by a husband’s adulterous relationship.

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