JOSEPH SHINE VS UNION OF INDIA : CASE SUMMARY
The Supreme Court of India in Joseph Shine Vs Union of India 2019 (3) SCC 39 held that Section 497 IPC and Section 198 CrPC are violative of Article 14 and 21 of the Constitution. It was also held that adultery should not be treated as an offence.
Section 497 IPC provided that a man who takes or entices away a married woman with intent of having illicit intercourse is punishable with imprisonment up to two years or fine or both. Section 198 CrPC provided that only an aggrieved husband can file a complaint under Section 497 IPC.
THE PRECEDENTS
In Sowmithri Vishnu Vs Union of India AIR (1985) SC 1618 a Writ Petition under Article 32 has been filed under Article 32 wherein Section 497 IPC has been challenged on the ground that it confers right to husband to prosecute the adulterer but it does not confer right to wife to prosecute the woman with whom husband has committed adultery. Further, Section 497 does not confer right on the wife to prosecute her husband who has committed adultery. The Supreme court dismissed the petition on the ground that Section 497 treats wife as a victim and has been introduced to protect the sanctity of matrimonial home.
In V. Revathi Vs. Union of India (1988) 2 SCC 72 the Supreme Court held that Section 497 IPC is not discriminatory against wife. There is provision of punishment of outsider who violates the sanctity of matrimonial home with a rider that if such outsider is a woman she cannot be punished. Thus, there is reverse discrimination in favour of wife rather than against her.
SECTION 497 AND ARTICLE 14
The Court noted that if adultery is committed with the consent of husband then there will be no offence under Section 497 IPC. This shows that Section 497 treats wife as property of husband and she is totally subservient to will of husband. Section 497 does not bring extramarital relationship with unmarried woman or widow under its preview.
Adultery means voluntary sexual relationship with any person other than wife or husband as the case may be. But Section 497 makes some of extramarital relations punishable while some of extramarital relations have not been made punishable. Section 497 does not treat wife of the adulterer as aggrieved person. The Court held that there is absence of rationality and logic in Section 497 as such it violates Article 14 of the Constitution being manifestly arbitrary.
SECTION 497 AND ARTICLE 21
The Supreme Court noted that a woman has right to dignity. The Supreme Court in State of Madhya Pradesh Vs Madanlal (2015 ) 7 SCC 681 held that dignity of women is part of her non-perishable and immortal self. The Supreme Court in Pawan Kumar vs State of Himachal Pradesh 3 (2017) 7 SCC held that the right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. In R Vs R (1991) 4 All ER 481 at P.484, Lord Denning observed that a wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern. The Supreme Court in Voluntary Health Association of Punjab Vs Union of India (2013) 4 SCC 1 held that women have equal role to that of men in thinking, participating and leadership.
The Supreme Court was of view that there cannot be patriarchy monarchy over daughter or husband’s monarchy over the wife.
The Supreme Court noted that in K. S. Puttaswamy Vs Union of India 4 (2018) 5 SCC 1, while laying immense stress on dignity, right to privacy has been held to be facet of Article 21. The Supreme Court noted that dignity of an individual has been emphasized in National Legal Services Authority of India vs Union of India (2014) 5 SCC 438 and Common Cause (A Registered Society ) Vs Union of India 4 (2018) 5 SCC 1.
The Court held that there cannot be any curtailment of right of dignity of a woman. Section 497 creates distinction based on gender stereotypes which creates dent in individual dignity of a woman as such Section 497 is violative of Article 21.
IS ADULTERY A CRIME ?
The Court was of view that adultery does not fit into concept of crime. It can be basis of divorce but it cannot fall in category of crime. Treating adultery as an offence will tantamount to State entering into private realm. The Court noted that in several jurisdictions i.e. People Republic of China, Japan, Australia, Brazil and Western European Countries, adultery is no longer a crime.
CONCLUSION
The Supreme Court held that Section 497 IPC is unconstitutional. It was also held that adultery should not be treated as an offence. Section 198 CrPC, which provided for procedure of filing of complaint, was also held unconstitutional. Judgments in Sowmithri Vishnu and V. Revathi were overruled.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.