The case of Joseph Shine v. Union of India was decided in the year 2018, and is a landmark judgement given by the Hon’ble Supreme Court which decriminalized the offence of adultery as defined under Section 497 of the Indian Penal Code, 1860, after nearly a hundred and fifty years. It is important to remember that this law was created when India was still under British Raj, and hence the legislation reflected the patriarchal nature of the society then, as was evident from its language, which is as follows:
“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 case the wife shall not be punishable as an abettor.”
Section 497, IPC.
From the phrase, “without the consent or connivance of that man” it is clear that the erstwhile penal legislation on adultery was male-centric, and demoted women as mere “property” of their husbands. Moreover, if their husbands gave consent, then they could be made morally complicit in the action of adultery. This went against the very dignity of women, then, and if it were allowed to exist, would do so now. The provision was steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery became evident when the provision was considered as a whole. A person engaging in sexual relations with the wife of another man wouldn’t be charged for adultery if the husband of the wife so involved gave his consent. This clearly indicated how women were objectified in the hands of their husbands. These points and more were discussed in the case of Yusuf Abdul Aziz v. State of Bombay (1954 SCR 930).
BRIEF FACTS:
In this case the petitioner was a non-resident Keralite hotelier in Italy, named Joseph Shine, who filed a Writ Petition before the Supreme Court under Article 32 which challenged the validity of Section 497 of the Indian Penal Code, 1860, and by extension Section 198 (2) of the Criminal Procedure Code, 1973. He had no personal gains to get from this, save a purpose instigated by the suicide of his friend who was falsely accused of rape by a woman with whom he had adulterous relations. There were no other preceding factors to the filing of this petition of this case by the petitioner.
ISSUES:
- WHETHER Section 497 of the Indian Penal Code, 1860, is unconstitutional?
2. WHETHER Section 497 of the IPC, 1860, is violative of Articles 14 and 15 (1) and 15 (3) – dealing with the right to equality before law, protection from discrimination on the grounds of sex, and the provision enabling the State to make special provisions for women and children?
THE COURT’S VERDICT:
The judgement was given by the judges in different but concurring pronouncements. The judges said that Section 497 is archaic and unconstitutional, as it deprived a woman of her independence, dignity, and privacy. They held that sexual autonomy is a value which is an integral part and falls within the ambit of personal liberty under Article 21 of the Indian Constitution. Along with other things, it is very important to recognise the expectations one has from a relationship and to acknowledge them. One of these expectations is that each will provide the same element of companionship and respect of choices. More than this, it is the responsibility of both the wife and husband in a marriage to contribute equally to the relationship. Making wives the sexual property of their husbands is, simply, morally wrong, legally a vice which threatens the values enshrined in the constitution of India.
However, the judges emphasized that though adultery is no longer a criminal offence, it would still continue to be a civil wrong and hence, a valid ground for divorce, should either of the parties in a marriage select it.
COMMENTS:
The judgment is, from a moral and ethical standpoint, very desirable at this moment of time. Society has changed a lot since the law on adultery was passed, and it is simply unacceptable that women shall be given a lesser standing in their lives – whether it be personal or political. Granted, that marriage is a bond of privacy, closed from the public eye, but that doesn’t make women the property of their husbands. They have their own rights to lead an equal life, and have access to equal opportunities.
It has also helped the other gender, as they cannot be falsely accused of rape, by vindictive women, who were exempted from punishment in the now unconstitutional adultery law. And it is not as if there is no remedy for those married parties who are in disagreement with each other’s engagements to other people, and see no hope of saving their marriage. They can still opt for divorce, since adultery is still a civil wrong, and the option of separation is available.
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