This Case Commentary is written by Aryan Harshraj, a Fifth-Year Law Student of Institute of Law, Jiwaji University

Abstract

“Adultery can take you to court, not to jail." Adultery has sparked widespread discussions and garnered significant attention in India in the past couple of decades. Recently, the Supreme Court struck down 158-year-old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional.

Case Title:
Joseph Shine v. Union of India

Case No:
Writ Petition (Crl.) No. 194 of 2017

Date of the Order:
27th September, 2018

Jurisdiction:
Supreme Court of India

Quorum:
Before Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr. D.Y. Chandrachud, and Indu Malhotra, JJ

Petitioner:
Joseph Shine

Respondent:
Union of India

Acts and Sections Involved:

• Constitution of India, 1950: Article 14, 15(1), 21

• Indian Penal Code, 1860: Section 497

Introduction

The landmark infidelity case of Joseph Shine v. Union of India addressed the constitutionality of Section 497 of the Indian Penal Code 1860. The values built up in our structure, such as uniformity, non-discrimination, the right to live in nobility, and so on, are all abused by this arrangement. Taking after this choice, the infidelity was annulled since it was against ladies and abuses Articles 12, 15(3), and 21 of the Indian Constitution.

Fact

Joseph Shine, a citizen of India living in Italy, filed a petition under Article 32 in the Public Interest challenging the constitutional validity of adultery. This petition was the first PIL filed against adultery. Section 497 of the Indian Penal Code, 1860 managed with the criminal offense of infidelity.

Section 497 of the IPC is held unconstitutional by The Supreme Court since it violates Articles 14, 15, and 21 of the Indian Structure. A three-judge seat headed by the CJI, Dipak Misra, mutually alluded the appeal to a five-judge Structure Seat, which held that the law was out of date upon a woman’s independence, nobility, and privacy. This decision overruled the Court’s precedent in Yusuf Abdul Aziz vs. the State of Bombay (1954 SCR 930), Sowmithri Vishnu vs. Union of India (1985 Supp SCC 137), and Vishnu Revathi vs. Union of India (1988 2 SCC 72), where the constitutional validity of Section 497 was maintained.

Ingredient

● For this wrongdoing, the following components are necessary:

● A man engaging in sexual intercourse with a woman who is, or whom he knows, or with reasonable doubt is, the spouse of another man

● These sexual intercourse have to be taken out without the husband's consent.

● Such sexual intercourse must not sum to rape.

● Such sexual intercourse must not sum to rape.

Connivance

According to the Allahabad High Court, conspiracy, as used in allegorical dialect, refers to the wilful blindness to an act or activity that is presently taking place, to something that is happening in front of one's eyes, or to anything that is perceived to be happening without any protest or crave to halt, disturb, or intrude with it. In cases where a judge cannot discover proof of connivance and the woman's spouse has abandoned her.

Under Section 497, a spouse is not culpable as an abettor since the authors of the code see that Indian society is of a diverse kind, which leads a man to punish the adultery of spouses. Be that as it may, the reason given by the creators of the code for not rebuffing the spouse has been criticized.

Background

There were a few questions raised on the constitutional validity of Section 497 of the IPC and Section 198 of the CrPC.

Yusuf Abdul vs. the State of Bombay case, 1954

There has been a contention made in this case that Articles 14 and 15 of the Indian Structure were breached. The Supreme Court maintained the legality of Section 497 by emphasizing that as it were an outsider to the relationship, and indeed at that point, the enraged spouse alone, may be punished, not a spouse or a spouse who has betrayed their marriage.

Sowmithri Vishnu v. Union of India case, 1985

Due to its irrational categorization of men and women, it was contended in this case that Section 497 abuses Articles 14 and 15 of the Constitution. The Supreme Court ruled that there is no breach of any constitutional provisions when the definition of adultery limits the class of offenders to males. It is broadly acknowledged that the male, not the woman, is the one who initiates the temptation. The court went on to say that while this view may have changed over time as more ladies started seeking guys, it is the legislature's responsibility to perceive this move and accordingly reexamine Section 497.

Revathi v. Union of India, 1988

Adultery laws are a "shield or maybe a sword," according to the Supreme Court. The court chose that constraining the application of Section 497 to guys did not abuse any constitutional principles, as the current adultery legislation did not.

Issue

● Whether Section 497 of the IPC read with Section 198(2) of the CrPC abused Articles 14, 15, and 21 of the Constitution of India.

● As per Section 497, no law provides that a woman can file a complaint of adultery against her husband.

Arguments Favoring the Petitioner

The counsel for the applicant fought that the clause makes adultery illicit as it was based on sex, which has no discernible association to be satisfied. The consent of the spouse is unimportant. Subsequently violative of Article 14 of the constitution. This provision is not sexual orientation unbiased as it gives rights to as it were men to prosecute against adultery, which infringes Article 15 of the Constitution of India.

The solicitor contended that the arrangement of infidelity is illegal as it undermines the respect of a lady by not regarding her sexual independence and self-determination. It is violative of Article 21.

Arguments Favour of Respondent

The counsel of the respondent contended that adultery breaks the family and breakdowns marriage in irretrievable circumstances. Adultery affects the life of the life partner, child, and family as a whole and changes their society. This offense is committed by an outsider with the full knowledge of its consequences.

Judgment

The Supreme Court struck down Section 497 of the IPC as unconstitutional, being violative of Articles 14, 15, and 21, and held that Section 198(2) of the CrPC was unconstitutional to the degree that it was appropriate to Section 497, IPC.

● The Court expressed that every individual has full freedom to make sexual relationships of their own choice and consent.

● Adultery is considered a private wrong, but in a genuine sense, it's not. This ought to be a public wrong.

● Women aren’t considered the property of the husband.

● This law is old and has not held any constitutional legitimacy in the cutting-edge days.

Though this is an ethical off-base, it does not state to criminalize the act. Here, the Supreme Court held that adultery is very oppressive and subsequently pronounced unconstitutional. Hence, it can as it were be utilized as a pardon for divorce.

Conclusion

According to the Supreme Court, the law that criminalizes adultery is problematic, and criminalizing adultery is risky. In its opinion, adultery is an ethical wrong but does not fit into the concept of a criminal offense. Consequently, indeed in future legislatures, not going to bring any kind of law that will criminalize adultery.

Citation

Goel S, ‘Joseph Shine V/s Union of India’ (Legal Service India - Law, Lawyers and Legal Resources) <https://www.legalserviceindia.com/legal/article-3127-joseph-shine-v-s-union-of-india.html> accessed 20 September 2024

Khan M, ‘Joseph Shine v Union of India’ (LawBhoomi, 17 January 2023) <https://lawbhoomi.com/joseph-shine-v-union-of-india-2/> accessed 20 September 2024

More H, ‘Joseph Shine v Union of India: Unconstitutionality of S. 497 IPC’ (The Fact Factor, 6 March 2023) <https://thefactfactor.com/facts/law/legal_concepts/joseph-shine-v-union-of-india/20640/> accessed 20 September 2024

Sehgal DR, ‘Joseph Shine v. Union of India : Case Analysis’ (iPleaders, 22 January 2024) <https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/#Introduction> accessed 20 September 2024