Joseph Shine v. Union of India (Writ Petition (Criminal) No. 194 Of 2017)
Joseph Shine v. Union of India
Writ Petition (Criminal) No. 194 Of 2017
Supreme Court of India (Criminal Original Jurisdiction)
Constitutional Bench - Hon’ble Chief Justice Deepak Misra (author), Justice A.M. Khanwilkar and Hon’ble Justice R.F. Nariman (authored separate concurring judgment)
Hon’ble Dr. Justice D.Y. Chandrachud (authored separate concurring judgment) and Hon’ble Ms. Justice Indu Malhotara (authored separate concurring judgment)
ALSO KNOWN AS
POINT OF CONSIDERATION
The constitutional validity of Section 497 IPC which criminalises adultery and Section 198 CrPC which provides for the procedure of filing complaint of the offence of adultery.
The instant writ petition was filed under Article 32 of the Constitution of India challenging the validity of Section 497 of Indian Penal Code (for short “IPC”). Section 497 stated as: “Adultery – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”
The Petitioner has also challenged Section 198(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as “CrPC”). Section 198(2) read as: “For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code. Provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
ISSUES RAISED & RATIO
Whether section 497 of IPC violative of Article 14 or not?
The Hon’ble Court answered the above in affirmative. The court held that section 497 treated a woman as but possession of her spouse. The essential values on which the Constitution was founded – liberty, dignity and equality – could not be allowed to take such a view of marriage and concluded that section 497 suffers from manifest arbitrariness.
The court held that section 497 of IPC was indeed violative of Article 14. It was further explained that even though Article 14 did not forbid reasonable classification, however, the classification must have some rational basis or a nexus with the object sought to be achieved. The court illustrated that Section 497 of the I.P.C., made two classifications –
Based on who had the right to prosecute: It was only the husband of the married woman who indulged in adultery considered to be an aggrieved person given the right to prosecute for the offence of adultery. Conversely, a married woman who was the wife of the adulterous man, had no right to prosecute either her husband, or his paramour.
Based on who could be prosecuted. It was only the adulterous man who could be prosecuted for committing adultery, and not the adulterous woman, even though the relationship was consensual; the adulterous woman was not even considered to be an “abettor” to the offence.
The court examined that the aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands and were treated as chattel or property of their husbands. Hence, the offence of adultery was treated as an injury to the husband since it was considered to be a theft of his property, for which he could proceed to prosecute the offender. The said classification was no longer relevant or valid, and could not withstand the test of Article 14, and hence section was struck down on this ground.
Whether section 497 of IPC protected under Article 15(3) or not?
It was explained by the court that Article 15(3) of the Constitution was an enabling provision which permitted the State to frame beneficial legislation in favour of women and children to protect and uplift those class of citizens. The true purpose of affirmative action was to uplift women and empower them in socio-economic spheres. Legislation which took away the rights of women to prosecute could not be termed as “beneficial legislation” and hence the section was not saved by Article 15(3).
It was further held that the purpose of Article 15(3) was to further socioeconomic equality of women. It permitted special legislation for special classes. However, Article 15(3) could not operate as a cover for exemption from an offence having penal consequences.
Whether section 497 of IPC violative of Article 21 or not?
The court explained that the impugned section proceeded on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinated the woman to a position of inferiority thereby offending her dignity, which was the core of Article 21.
Whether adultery must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce.?
The present question was not directly an issue in the matter. However, The Hon’ble Court observed that the State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices and hence favoured adultery to be kept out of the realm of criminal law.
Whether section 198 of The Code of Criminal Procedure prescribing for the complaint mechanism in case of the offence of adultery constitutional or not?
The Hon’ble Court in light of the above discussion held that Section 198(2) of the Cr.P.C. which contained the procedure for prosecution under Chapter XX of the I.P.C. was unconstitutional only to the extent that it was applicable to the offence of Adultery under Section 497.
Whether the decisions in Sowmithri Vishnu (1985), V. Rewathi (1988) and W. Kalyani stand overruled or not?
The Apex Court in the above cases upheld the constitutionality of Section 497 of IPC either directly or indirectly and hence these judgments were overruled by the present case.
IMPORTANT CASES REFERRED
Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321
Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
V. Revathi v. Union of India (1988) 2 SCC 72
W. Kalyani v. State (2012) 1 SCC 358
Navtej Singh Johar v Union of India Writ Petition (Criminal) No. 76 of 2016
The author is an LL.B Graduate of University School of Law and Legal Studies, GGSIPU, New Delhi