Joseph Shine v. Union of India
- ByPravleen Kaur --
- 09 May 2025 --
- 0 Comments
Introduction
The judgment deals with the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Code of Criminal Procedure (CrPC), which criminalize adultery. The Supreme Court has examined whether these provisions violate the fundamental rights enshrined in the Constitution, particularly Articles 14, 15, and 21, which guarantee equality, non-discrimination, and the right to life and personal liberty, respectively.
Historical Background
Adultery as an Offense
The concept of adultery as an offense has its roots in various ancient civilizations and religions. In Judaism, the Seventh Commandment prohibits adultery, and the punishment prescribed in the Old Testament is death. [Para 2] Christianity also condemns adultery for both men and women, although Jesus taught forgiveness. [Para 3] In Hinduism, the Manusmriti and Dharmasutras prescribe varying punishments for adultery, depending on the caste or class of the individuals involved. [Para 4] In Islam, the Qur'an addresses adultery and its punishment in Chapter 24, Verses 2 and 6 to 9. [Para 5]
Adultery in English Common Law
In sixth-century Anglo-Saxon England, complex payment schemes were created for husbands whose wives committed adultery. However, with the spread of Christianity, adultery became a moral wrong. After 1066, adultery was no longer seen as a crime against the State but as an ecclesiastical offense. [Para 6] The Divorce and Matrimonial Causes Act, 1857, in England abolished the common law action for criminal conversation and allowed husbands to claim damages for adultery committed by their wives. [Para 7] In 1923, the Matrimonial Causes Act gave both spouses the right to divorce on grounds of adultery, and the husband's right to claim damages for adultery was abolished in 1970. [Para 7]
Adultery in the United States
Puritans brought Cromwell's criminal law to the United States, making adultery a capital offense in some states. However, the American Law Institute has since removed adultery from its Model Penal Code due to vague, archaic, and sexist statutes. Adultery laws were rarely enforced and seen as a potential source of abuse. [Para 8]
Adultery in India
Lord Macaulay, while drafting the Indian Penal Code (IPC), initially refused to make adultery a penal offense because the existing laws for punishment were ineffective, and he was reluctant to punish the infidelity of wives due to the societal conditions. [Para 9] However, the Law Commissioners disagreed with Macaulay's view and recommended limiting the punishment for adultery to the male offender only. [Para 10] This led to the enactment of Section 497 of the IPC, which criminalizes adultery but exempts women from liability. [Para 11]
Challenges to Section 497
Yusuf Abdul Aziz v. State of Bombay
In this case, a challenge was made to Section 497 on the grounds of contravening Articles 14 and 15 of the Constitution. However, the Constitution Bench of the Supreme Court upheld the section as a special provision for the benefit of women. [Para 1]
Sowmithri Vishnu v. Union of India & Anr.
The Court addressed a challenge to Section 497, which denied women the right to prosecute their husbands for adultery. The Court rejected the challenge, stating that it is for the legislature to consider whether Section 497 should be amended to take note of changes in society. [Para 2]
V. Revathi v. Union of India and Ors.
The Court upheld the constitutional validity of Section 497 of the IPC and Section 198(2) of the CrPC, stating that women cannot prosecute their adulterous husbands. [Para 3]
Current Challenges
Petitioners' Arguments
The petitioners argued that Section 497 is unconstitutional as it criminalizes adultery and violates the right to privacy. They also argued that it discriminates based on marital status and sex. [Para 1]
Union of India's Arguments
The Union of India argued that Section 497 is valid and not discriminatory. They emphasized the importance of family and marriage rights and suggested that if any part of the section is found to be unconstitutional, the Court should amend it rather than remove it entirely. [Para 2]
Constitutional Validity of Section 497
Violation of Article 14
The Court examined whether Section 497 violates Article 14 of the Constitution, which guarantees equality before the law and equal protection of the law. The provision makes two discriminatory classifications based on historical context, which are no longer relevant or valid and are therefore liable to be struck down. [Para 12]
The Court noted that laws can become outdated and discriminatory over time, and Section 497 fails to consider men and women as equals in society. [Para 13] Discrimination based on outdated laws is a violation of fundamental rights, and Section 497 should be repealed. [Para 26]
Violation of Article 15
The Court also considered whether Section 497 violates Article 15 of the Constitution, which prohibits discrimination on the grounds of sex. The petitioners argued that Section 497 discriminates against women and perpetuates gender stereotypes. [Para 40]
The Court observed that Section 497 treats a married woman as the property of her husband and does not include extramarital relationships with unmarried women or widows. [Para 23] It also does not consider the wife of the adulterer as an aggrieved person, making the provision arbitrary and violating Article 14. [Para 23]
The Court further noted that Section 497 criminalizes the conduct of a man having sexual intercourse with the wife of another without his consent and exempts women from criminal liability, perpetuating the gender stereotype that men are the seducers and women are the seduced. [Para 42] This is deeply offensive to the principle of equality.
Violation of Article 21
The Court examined whether Section 497 violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. The Court observed that the provision deprives women of their autonomy, dignity, and privacy by adopting a notion of marriage that subverts true equality. [Para 21]
The Court emphasized that individual sexual autonomy and privacy make it unjust for the State to criminalize adultery, as it is not always the cause of marital breakdown. [Para 60] The complexities of human relationships cannot be categorized as right or wrong, and inappropriate behavior should not always be treated as criminal. [Para 60]
The Court also noted that the State has a legitimate interest in regulating aspects of marriage, but certain legislation, such as criminalizing adultery, is offensive to the dignity of women and does not fit the paradigm of protecting fundamental rights. [Para 61]
Conclusion
The Court concluded that Section 497 of the IPC and Section 198(2) of the CrPC are unconstitutional as they violate Articles 14, 15, and 21 of the Constitution. [Para 7] The Court overturned the judgments in Sowmithri Vishnu and V. Revathi, which had upheld the constitutional validity of these provisions. [Para 28]
The Court emphasized that criminal law must align with constitutional morality, and the law on adultery violates constitutional guarantees of liberty, dignity, and equality. [Para 67] Section 497 lacks a determining principle, perpetuates gender stereotypes, and denies dignity, liberty, and sexual autonomy, rendering it unconstitutional. [Para 67]
The Court allowed the writ petition filed by Kalpana K. Tripathy, challenging the constitutional validity of Section 497 of the IPC and Section 198(2) of the CrPC. [Para 18]
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