Joseph Shine vs. Union of India
COURT: Supreme Court of India
DECIDED ON: 27th September, 2018
BRIEF FACTS AND PROCEDURAL HISTORY:
1. In 1985, in the case of Sowmithri Vishnu vs. Union of India, in which the judgment was authored by Justice Yeshwant Vishnu Chandrachud, father of Justice Dhananjaya Chandrachud in which the constitutional validity of Section 497 was upheld. His son overruled his judgment and struck down the criminalization of adultery.
2. In October 2017, a writ petition was filed by Joseph Shine, a non-resident of Kerala and a Malayalam speaking hotelier in Italy, under Article 32 of the Constitution of India challenging the validity of Section 497 of Indian Penal Code which deals with Adultery read with Section 198(2) of the Criminal Procedure Code. Section 497 of IPC comes under Chapter XX dealing with ‘Offences relating to Marriage’. The said section granted relief to the wife by treating her as a victim even though the offence is committed by both of them but only one was made liable for the criminal offence. The wife could not be punished even as an abettor. In Yusuf Abdul Aziz vs. State of Bombay, the question arose whether Section 497 of IPC was contravening Article 14 and 15 of the Constitution of India and the constitutional bench held that it is a special provision made for women and is backed by Article 15(3) of the Constitution and that the said two Articles need to be read together.
3. The provision treated a married woman as a property of the husband as it states when there is consent of the man, there is no offence. This reflects the social dominance prevalent in the society when the penal provision was drafted. Also, Section 497 of IPC does not bring into its purview an extramarital relationship with an unmarried woman or a widow. Section 198 of Criminal Procedure Code deals with the person aggrieved which treats the husband of the woman as an aggrieved person or in the absence of husband, such person who had the care of the woman on his behalf at the time when the offence was committed as the aggrieved person. It does not consider the wife of the adulterer as an aggrieved person.
ISSUES BEFORE THE COURT:
1. Whether Section 497 of the Indian Penal Code read with Section 198(2) is constitutional or not?
2. Whether Section 497 of the Indian Penal Code read with Section 198(2) is violative of Article 14, 15 and 21 of the Constitution of India?
1. Section 497 dealing with the offence of Adultery read with Section 198(2) is unconstitutional. It can only be treated as a ground for divorce under civil proceedings and cannot be given criminal sanction.
2. Section 497 of the Indian Penal Code read with Section 198(2) was considered as violative of Article 14, 15 and 21 of the Constitution of India. Section 497 offended Article 14 and 15 of the Constitution of India as it discriminates on the basis of marital status and also precludes a woman from initiating criminal proceedings. Also it does not punish a woman even as an abettor for committing the offence of adultery. It also violates Article 21 as it affects a person’s right to privacy and personal liberty.
The Court stated that Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favor of women and children and to protect and uplift the class of citizens. Section 497 being a penal provision, punishes the offence of adultery which is an act committed consensually between two adults who have strayed out of marital bond and thus this provision cannot be considered as a beneficial legislation covered by Article 15(3) of the Constitution.
The Court observed that adultery is a marital wrong and should be a ground for divorce and so should only have civil consequences and not criminal sanctions. A wrong which is punishable with criminal sanction must be a public wrong against the society as a whole and not an act merely committed against an individual victim.
The dignity of a woman in the present generation has been considered in the case. The court observed that Adultery is not a crime in People’s Republic of China, Japan, Australia, Brazil and many Western European countries. When the parties to a marriage lose moral commitment of their relationship, it creates a dent in their marriage and it totally depends upon the parties how they deal with the situation. Some may forgive and live together and some may seek divorce. It is absolutely a matter of privacy. Adultery is not always the cause of an unhappy marriage; it can be a result as well. If the act is treated as an offence and punishment is provided for it then it is punishing people who are unhappy in marital life and any law that punishes adultery as a crime has to punish both the persons indiscriminately. In the international scenario, most of the countries have abolished adultery as a crime.
The Court observed that a law which could have been justified at the time of its enactment can with the passage of time and due to the evolution of society and changed circumstances become outdated and discriminatory. What may have once been a perfectly valid legislation and which was meant to protect women in the historical background in which it was framed can with the passage of time of over a century and a half become obsolete.
Section 497 of the Indian Penal Code was considered as unconstitutional as it was assumed that a woman is the property of her husband and cannot have relations outside the marriage. But the same restrictions did not apply in the case of a husband. This provision also violates the right of privacy as well as liberty of the women by discriminating against women and creating gender stereotypes.
The Court held Section 497 of IPC as unconstitutional being violative of Article 14, 15 and 21 of the Constitution and that adultery should not be treated as an offence. Also Section 198 of Criminal Procedure Code which deals with the procedure for filing a complaint in relation to the offence of adultery was declared unconstitutional. This judgment is a victory for equal rights of women and is a major evolution in law.
 1985 AIR 1618, 1985 SCR Supl. (1) 741
 1954 AIR 321, 1954 SCR 930